ROTTER Rechtsanwälte Partnerschaft
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
ROTTER Rechtsanwälte Partnerschaft / Key word(s): Legal Matter/Legal Matter 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 End of financial news 10.08.2011 Dissemination of a Corporate News, transmitted by DGAP – a company of EquityStory AG. The issuer is solely responsible for the content of this announcement. DGAP’s Distribution Services include Regulatory Announcements, Financial/Corporate News and Press Releases. Media archive at www.dgap-medientreff.de and www.dgap.de |
134995 10.08.2011 |