Banking Law and Investment Law
Whilst Banking Law deals with the special legal rules for banks and bank transactions, Capital Market Law mainly ensures the individual protection of investors, and, furthermore, the protection of the functioning of the capital market and the economy. For both areas of law, the activities of our law firm are focused - though not exclusively - on representing the interests of private investors in relation to banks and other financial service providers. Here, our clients include institutional investors as well as wealthy private individuals.
When drawing up or examining contracts with banks and other financial service providers, as well as during legal disputes - whether before the state courts, arbitration tribunals or conciliation boards - the contracting partners or opponents of the major financial players require particularly competent and specialised legal consultation in order to ensure a counterbalance to their financial power.
In the rapidly developing area of Investment Law, our law firm boasts a team of lawyers familiar with this area of expertise, who have already enforced claims for numerous clients in cases relating to the assertion of damages and restitution claims in the event of failed investments, for instance closed-end or open-end funds, securities or certificates. During our activities, we do not exclusively rely on prevalent patterns of argumentation such as concealed sales commissions (repayments/ kickbacks), but rather analyse even complex investment products with regard to potential hidden risks and faulty design. This course of action allowed us, even years ago, to prove that a large initiator of closed-end media funds had committed irregularities with regard to the tax-design of a closed-end film fund with an investment volume of more than 200 m €. We also successfully managed to assert claims in relation to a series of closed-end real-estate funds of the cooperative group of banks, not only against the advising and brokering primary banks, but also against the initiators and the central bank behind them, based on its status as a fiduciary (after initial successful nationwide cases in 2009, in more than a dozen of final judgments by the OLG (higher regional court) of Frankfurt am Main in the first quarter of 2012 alone).
In addition to this, we provide consultancy services for investors of capital regarding the options of disinvestment and defence against supplementary payment claims, for instance by closed-end funds. Here, complex aspects of banking law, investment law, corporate law and tax law interact, so that the law firm’s comprehensive economic competence can be utilised by calling in specialists.
However, potential claims against financial institutions not only result from damage claims on account of failed investments. The banks violate their contractual duties in many other areas as well. For instance, they often break legal regulations on the adjustment of interest when granting loans, leading to unjustified interest payments for the customer which can amount to six-digit sums. We have recently successfully proven that a Sparkasse charged excessive interest amounting to more than 500,000.00 € to the detriment of its customer.
Our range of consultation services in the area of banking law and capital market law
Our range of consultation services covers all issues of Banking Law, Capital Market Law and Investment Law, in particular regarding
closed-end funds - (real-estate, media/film, ship funds/ wind energy funds/ leasing funds): - reversal of investments/ assertion of damages on account of incorrect investment consultation regarding the risks of the investment models, unsuitability of the models for the investor’s specific investment targets, entanglement of interests - towards providers, fiduciaries, advisors and brokers - revocation of loan agreements towards the financing banks - disinvestment/ sale of participations - defence against supplementary payment claims by the companies and/or claims for repayment of distributed dividends pursuant to Section 172 (4) of the HGB (German commercial code) on the part of the companies, its creditors or insolvency administrators
- open-end funds: - similar range as for closed-end funds, additionally: - problem of the unplanned closing of open-end funds
- shares and certificates: - representation of shareholders and subscribers of certificates (among others Lehmann certificates) towards banks, financial advisors, investment brokers
- complex financial products: - interest swap transactions, lack of information on the part of the banks on initial negative market prices and the mode of functioning of complex swap transactions (BGH judgment of 22 Mar. 2011, XI ZR 33/10, BGHZ 189, 13-32) - structured nested bond loan products (at present, we are conducting comprehensive proceedings against the private bank Hauck&Aufhäuser on account of the sale of “CELLO”, a re-packaging of the lowest tranche of a CLO (Collateralized Loan Obligation) arranged by Morgan Stanley and placed via an Irish investment vehicle of Lehmann- Contracts for Difference (CFD) and Futures for Difference (FFD), high-risk financial products on the basis of raw materials and/or financial indices with the character of option transactions (in 2011, successful enforcement of damages against FXdirekt Bank AG)Incorrect loan statements to consumers and commercial customers, in particular for loans with variable interest; we negotiate with a number of banks, in particular the Deutschen Apotheker- und Ärztebank (apoBank), against whom we have enforced claims for our clients in a large number of cases since 2007, in court and out of court.Consultancy services for the design of investment prospectuses / legal examination of investment prospectuses
In addition to your other contacts, Dr. Wolfgang Walchner is also available for all issues related to Banking Law and Capital Market Law.