DGAP-News: H.E.A.T. mezzanine certificates: review and assertion of claims for damages by the law firm ROTTER Rechtsanwälte against UBS Deutschland AG and HSBC Trinkaus&Burkhardt KGaA
ID: 459493
Matter/Legal Matter
H.E.A.T. mezzanine certificates: review and assertion of claims for
damages by the law firm ROTTER Rechtsanwälte against UBS Deutschland
AG and HSBC Trinkaus&Burkhardt KGaA
10.08.2011 / 14:00
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Munich / Germany - 9 August 2011 - On behalf of a group of private and
institutional investors, ROTTER Rechtsanwälte Partnerschaft asserts claims
for damages against UBS Deutschland AG (hereinafter briefly 'UBS') in
connection with its recommendation to acquire H.E.A.T. mezzanine
certificates.
In 2005, UBS Deutschland AG recommended the acquisition of H.E.A.T
mezzanine certificates to asset management and investment counselling
customers. Thereby, UBS violated a number of duties it had to observe
within the framework of its asset management and investment counselling.
This results from both a factual and legal review that ROTTER Rechtsanwälte
Partnerschaft performed by order of its clients.
For instance, investors were not informed of the fact that the offering
premium of up to 5% was entirely cashed in by UBS Deutschland AG and not
passed on to the issuer of the certificates, as could have been expected.
In the subscription slips submitted regularly to and signed by the
customers, no indication whatsoever can be found on the fact that the
offering premium was entirely cashed in by UBS. 'This violation alone
entitles customers to claim damages from UBS Deutschland AG' said Klaus
Rotter, founding partner of ROTTER Rechtsanwälte Partnerschaft that
coordinates the joint action of the H.E.A.T. mezzanine certificates
investors, since the customer's attention must be drawn to the so-called
kick-back payments in order to allow him to assess the bank's own interest
in the deal, according to the rulings of the Federal Court of Justice
(BGH), which in the meantime have become consistent.
Neither was the management fee in the amount of 1% p.a. of the respectively
outstanding volume of certificates disclosed to the customers, which UBS
entirely cashed in as well. Finally, the bank did not mention a performance
fee of 10% of the respective interest payments on the junior notes either.
According to the case law of BGH, the bank had the duty to inform its
customers about such management fee and performance fee. As UBS did not
fulfil its information duties, the investors have a realistic chance to
completely revoke the deals.
In addition to the violations of duties concerning UBS' remuneration, the
investors' attention was not drawn to the conflict of interests of a member
of the investment committee either. Mr Robert Buchalik was a member of the
investment committee and, at the same time, principal shareholder of mbb
consult GmbH which directed the reorganization management. Mr Buchalik, in
his capacity as a member of the investment committee, would have been bound
to invest the money in eligible companies in the best possible manner.
However, this was contravened by his function of principal shareholder of
mbb consult GmbH, which was more important, financially speaking. In this
function, Mr Robert Buchalik had absolutely no interest in making the
monies available to sound small and medium companies, but instead to
provide funds to companies in need of restructuring in order to get
lucrative consultation contracts in his capacity as principal shareholder
of mbb consult GmbH. The H.E.A.T. programme clearly served the latter
interests of Mr Buchalik. Thus, a substantial part of the consulting sales
of mbb consult GmbH were earned with companies that had received funds from
the H.E.A.T. programme.
In the opinion of the specialized lawyers of ROTTER Rechtsanwälte
Partnerschaft, the bank would have had the duty to draw the investors'
attention to this and other obvious conflicts of interests that were
unveiled during the investigation.
This is why our law firm was entrusted to check the possibility of and
assert claims for damages against HSBC Trinkaus and Burkardt KGaA and
Robert Buchalik as well as other possible defendants.
CONTACT
Your contact partners for all matters in connection with the above are Mr
Klaus Rotter, Mr Bernd Jochem, lawyers specialized in banking and financial
market law. mail@rrlaw.de, www.rrlaw.de
End of financial news
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Datum: 10.08.2011 - 14:00 Uhr
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