The Federal Supreme Court (BGH) confirmed its constant iurisdiction by judgement of 14.06.2007, according to which everyone takes the “influence on the society with the initiation of a project”, like an initiator clings – here for the film fund ViF Babelsberger Filmproduktion GmbH & Co. third kg the VIF Me-dienkonzeptions GmbH and VIF Filmproduktion GmbH responsible for the folder issue. This states the Munich attorney Dr. Johannes Fiala (www.fiala.de) in its judgement discussion, which it sent us with its judgement guidance sentence for publication. Excerpt from the judgment: Liability of initiators and backers – even if they do not appear It does not matter whether these person(s) have appeared externally. The BGH cites the following persons as examples: Managing director, majority shareholder, general agent, head of a planning association. It is not the “corporate structure” that is decisive, but the influence similar to that of an initiator in a corresponding key function. In the concrete case, the subsidiary of a major bank was sued because it was regarded by an investor as the “initiator and backer of a prospectus”: the BGH made it clear that “mere participation” in the issuing or drafting of the prospectus is just as insufficient for this as influence in only some areas. Liability of auditors (WP) – even without naming them in the prospectus According to settled case law, auditors are liable on the one hand under an “information contract” or as professional experts, but on the other hand also under a “contract with protective effect in favour of third parties”, even without the name of the auditor having to be mentioned in the prospectus. The Federal Court of Justice (BGH) had already referred to this double liability approach (competition of claims) in its judgement of 8 June 2004 (Ref. X ZR 283/02). However, the co-accused auditor was lucky in this case, because the plaintiff had not shown that his investment decision was based on knowledge of the prospectus audit report prior to his subscription to the closed investment (no causality). Also by the plaintiff had been neglected to let assign itself the conceivable requirements of the mediator against the chartered accoutant: Because in the present case the mediator (not the investor) had informed itself about the existence of an (allegedly) objection-free folder appraisal, before it began the selling of the kg participation. Consequences for intermediaries and distributors: For intermediaries it can be a de facto reduction of liability if it is always documented that investors have received and taken note of the WP prospectus opinion (also as a basis for the investment decision) prior to subscription. Guiding principles: In addition to the founders, initiators and designers of the company – insofar as they form or control the management – all persons who stand behind the company and exercise a particular influence on its business conduct or the design of the concrete investment model of closed participations and therefore bear joint responsibility are also liable as so-called backers Auditors are liable to the investor only in the case of concrete trust in a faulty prospectus appraisal – knowledge of the appraisal before subscription is therefore required.
(DA No 44B/07 of 02.11.2007, p. 5)
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PhD, MBA, MM
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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