by lawyer Martin Arendt, MBL-HSG
OLG Munich from 18th to Judgement December 2006 (Ref. 21 U 4148/06) the initiators of a closed-end funds in the form of a KG to pay compensation for investment fraud (§ 264a StGB) convicted.
The prospectus of the Alpina GmbH & co. Asset building plan 4 KG as not indicate that the cost structure of the fund would mean that the deposits of investors, the first year, excluding costs would be covered and even then only just Fraction of the actual deposits for investment purposes would be available. Moreover would have drawn attention to the initiation of criminal proceedings against the initiators.
sets with this ruling, the Court of Appeal of the Supreme Court has already justified a more rigid law trend in the field of so-called unregulated "gray capital market" in order. Initiators of closed-end funds must therefore consider very carefully the circumstances that they take into the Prospectus. If in doubt they should be doing even more attention than before to potential risks. Clarify it by not sufficiently about the risks to the court and comes to the conclusion that the information on possible Risks have not concealed deliberately adhere to them personally after the three-year statute of limitations for purely civil prospectus liability claims. For investors, this represents a breakthrough because they now have a chance to keep even after the brief expresses prospectus liability limitation to the most powerful initiators of cash and no longer restricted only to proceedings against most agents are illiquid.
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Note The Federal Constitutional Court by order dated 29th February 2008, the appeal brought by the initiators Pitter-Kilfitt and Wittke constitutional complaint, unanimously adopted the decision and hence the Conviction for investment fraud (§ 823 para 2 BGB in conjunction with § 264a StGB) confirmed. Pitter-Kilfitt Wittke and are, moreover, since 2002, been convicted of illegal banking transactions (criminal offense under § 54 KWG).
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