by Johannes Fiala, lawyer
The Higher Regional Courts of Celle (ruling of 15.08.2002) and Stuttgart (ruling of 27.11.2002) have continued the line of the BGH: If a distributor does not inform about negative press reports, this means a breach of duty and full liability for the possible losses of the investor in the future.
Precarious:
The managing director of the sales company is also personally liable if he has not informed the investor, for example, about negative press reports or investigations by the public prosecutor. The deliberate withholding of such information shall be deemed to constitute intentional immoral investor misrepresentation.
The bruised investor called the behavior of the managing director ?roughly unscrupulous and roughly inconsiderate behavior? (OLG Stuttgart loc. cit.).
Management must know mandatory reading:
The management of the sales company is responsible for informing investors about critical voices in the business press (BGHZ 123, 126 f.). The lawyer of the managing director got a resounding slap of the OLG Stuttgart for the opinion, the information could be kept back opposite the investor, because no obligation of the mediator would exist, its business even ?to speak kaputt ? The OLG acknowledged this with the evaluation ?in highest measure offensive and thus as immoral ?
Structured sales is liable for its intermediaries:
The investment adviser owes an own examination, designation and weighting management clings with offence against obligation to inform about press reports of the individual risks of an investment ? especially if these are not concentrated and easy to understand in the brochure. It is a typical, particularly serious advisory error if a capital investment is afflicted with a total loss risk conceivable after a short time, and a loan was taken out for it, which would then have to be paid off for the rest of one’s (professional) life (OLG Celle loc.cit.).
The OLG Celle justifies the liability of the sales company with the argument that an investor cannot judge the knowledge and abilities of the intermediary. Since distributors are often not insured at all for such cases of damage, sales organisations also run the risk of completely losing their existence as a result of a few liability cases. The OLG Celle also refers to the obligation to inform about critical press comments (cf. OLG Stuttgart judgement of 02.12.1999).
