Controlling and distribution law: Increasingly large VSH gaps in the area of closed-end funds and investments

*by Johannes Fiala, Lawyer (Munich), Mediator (Univ.), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Lecturer (Univ. of Cooperative Education), Banker (www.fiala.de)
Never do anything by halves, or you’ll lose more than you can ever recover.
(Louis Armstrong, American jazz musician, 1900 – 1971)
The VSH broker Ralf W. Barth has recognized for a long time (www.rwb-finanz.de) that with the increasing legal trend in the area of the property damage liability is to be determined. n Regulation of the intermediary market (EU-VRL, MiFID, VVG reform, etc.) a clear eing In practice, there are often considerable gaps in coverage in the VSH policies with intermediaries!
VSH coverage gaps are growing:
More and more insurers are (understandably) turning away from the hardly transparent products and concepts by no longer offering VSH protection for these products. While years ago it was still possible to include entrepreneurial participations (typical and atypical silent), profit participation rights, profit participation certificates and similar constellations, up to leveraged and multiply leveraged products in the pecuniary loss liability insurance without any problems, today these are predominantly included in the exclusion list of many VSH providers.
The significance for sales is clear: on the one hand, increasingly complex products and the demand for more clarity, truth and transparency on the other. This leads to ever higher demands on sales and, of course, also on initiators.
A distributor who sells products that are not included in his VSH policy risks being treated as “driving without a license” in court in the event of a claim.
The law firm Fiala (www.fiala.de) is familiar with the dilemma from its practical experience: market participants (usually little-known) try their hand as initiators without having the concepts they have often created themselves (possibly written off?) checked by a lawyer beforehand. Not because the experience is so distinctive, but mostly for misunderstood cost reasons. If then still the Anlegerschützer uncover the not rarely negligent organization, it becomes liability-technically dangerously close. It is not uncommon for the initiator, sales department and, above all, the intermediaries to find themselves in a shambles after such an uncovering. Above all, one’s own economic existence is then massively threatened – the costs for qualified advisors to defend oneself, which must then be borne by the client, often amount to 20 times the costs of previous examinations.
VSH policies and concepts put to the test
For distributors, this means that only currently tested concepts, including VSH policies, offer a minimum level of security. The comparison with the activity and product profiles, which is currently available in the placement, becomes more important every day. A blanket coverage with a VSH policy, without the certainty whether the field of activity is really completely covered and insured, is just as disadvantageous as the belief “nothing can happen to me, because I work properly”. It is always better to check existing policies for completeness and, if necessary, to adjust or optimise them before taking out a product and, above all, long before a possible claim.
The not seldom high commissions on the one hand (which are paid out only with the switching), often go along with minimum budgets for folder organization and lawyer preliminary examination, knows RA Fiala from its practice. Especially very “innovative” initiators sometimes offer highly dangerous products and combinations for the intermediary. It is typical that most insurers then do not provide cover for this, and the intermediary usually finds out too late that the initiator was “given a few years in jail” for legal errors. The obligation laid down by the Federal Court of Justice to check investment models for “fiscal, legal and economic plausibility” will not only massively overtax lateral investors. If then the initiator claims an exam in the training but cannot prove it, it is time to seek contact with experts and colleagues.
Risk profile analysis from a specialist broker
A VSH specialist broker should definitely offer the benefit of gathering a risk profile of the client in order to highlight the gaps in coverage. On the other hand, unchecked VSH concepts that appear to be inexpensive, without a comparison of the risk profile, can basically be money down the drain. If the “real risks” are not insured and this is only discovered in the event of a claim, it is an extremely expensive experience.
Due to the loss experience Ralf W. Barth knows also the situation that good brokers saw their business of many years sovereign operated existentially endangered, due to some few mediations within the range of participation business, which were not included in your VSH policy. Intelligent distributors and intermediaries use a VSH broker who also knows the problems of the distributor and can carry out product checks before a product is even taken on for placement.
VSH brokers can’t do magic either – but they can come up with the right partners Good VSH brokers not only design concepts for distributors and intermediaries, they also point out which partners (e.g. specialised lawyers etc.) the intermediaries can contact to find out how to “set themselves up” optimally in advance. For example, by legally structuring various proprietary companies of the intermediary or distributor, a variety of liability brakes can be strategically built in altogether. It does not have to be the case that an uninsured claim in a closed-end investment necessarily leads to the loss of all income from the tangible assets.
Here are a few more examples of such risks that are not insurable: Legal and tax advice are not included, neither for the intermediary nor for the management consultant. There is regularly no VSH protection for yield information, forecasts, etc. Numerous searches with VSH insurers by VSH broker Barth have also shown that the “IRR yield” (internal rate of return) is also often one of the uninsurable risks here. Crimes of all kinds, for example aiding and abetting or complicity in fraudulent schemes, are also not insurable. These include “kick-back cases”, i.e. commissions which are not clearly recognisable to the customer in the concepts and which are concealed in brochures, for example. Insidious can be also cases from the bAV range: VSH broker Barth informed whether a violation of the requirement of the value equality (after the BetrAVG since 01.01.2002) was insured as consulting mistake. The answer was predictable – this is not insurable or there is no cover for this. This is because it is a legal requirement, and breaches of requirements or prohibitions are never insurable under the VSH conditions. This applies by the way analogously to some windy time value account model, even if some offerers with dubious legal opinions arrange its training courses and/or the advertisement.
An experienced VSH broker knows the practical gaps in VSH coverage from many claims.
VSH optimisation for intermediaries – also an initiator’s duty
However, the more intermediaries consciously address the issue of optimal VSH protection in accordance with their activity profile, the more important it becomes, above all for the initiators, to design their products in such a way that they are still VSH insurable at all. Occasionally, initiators save “at the wrong end”, and later have to realise that neither the sales nor the insurance cover for the intermediary was designed in a sufficiently professional manner. Particularly at risk and regularly underinsured are those persons who work as “training managers” or “broker supervisors” or “sales coordinators”: If they only learn from the press that they have accompanied a possible investment fraud, it is often too late to talk to the VSH broker.
VSH protection consulting requires market knowledge and a look into the future
Only those who clearly know what the market demands and what things VSH insurers still cover can basically still bring a product reasonably from the conception to the implementation phase. From the legal support of initiators we know that many a concept has to be “turned around” two or three times until it is marketable. Ignoring the legal and statutory parameters, practically often means a “free” invitation to the criminal court. This is demonstrated, for example, by the reports of Heinz Gerlach (www.Direkteranlegerschutz.de).
Initiators can be divided into three categories: The sprinter, who very quickly implements sales with good ideas. The strongman who works on the matter and the safety concept forever, but who often lacks the sales approach. The persistent one, who has the sufficient funds at his disposal, but often has a potential for improvement in sales and product design. For all three, you need a partner in consulting who has an overview of which potentials need to be supplemented in terms of content and implementation. This is about shaping the future.
Consumer protection and the implementation of the EC Insurance Mediation Directive, the VSH protection that is thus becoming better known, will contribute to an increase in lawsuits against intermediaries. It is therefore all the more important to know and implement all possibilities of liability avoidance: A good VSH policy should only cover the residual risk – any gaps at this point can cost the existence.
(experten.de (30.10.2007))
Courtesy ofwww.experten.de.

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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