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The BaFin published today that it has indications that R & R Consulting GmbH in Germany is investing under the brand name Aurimentum in the form of an “other investment that earns interest and repayment or a cash settlement of assets in exchange for the temporary transfer of Granted or promised money “i. S. d. § 1, Paragraph 2, No. 7 of the Asset Investment Act (VermAnlG) with the designation “Gold purchase with loyalty bonus”.
Contrary to § 6 VermAnlG, no sales prospectus was published for this, as the BaFin announced. We wonder what that means for sales and its liability. Attorney Daniel Blazek (BEMK Rechtsanwälte PartGmbB) answers this as follows:
“Dear Ladies and Gentlemen,
I have also read the BaFin notification of October 28, 2020. I answer your question as follows:
First of all, this message apparently only concerns one Aurimentum variant, the gold purchase with a loyalty bonus (after two years of contract, 8% on the gold purchased). I cannot judge what proportion this variant had in the overall products.
On the one hand, however, you can assume that R & R Consulting GmbH has a different legal opinion than BaFin, and on the other hand that BaFin is well versed in the so-called catch-all offense of Section 1 (2) No. 7 VermAnlG. In addition, the general tendency of criticism of gold products in the FRG is well known. But here you should first wait for the outcome of the administrative proceedings. There is still no resolution order or the like.
Investor lawyers will not care much about this. You will take the position that without the prospectus required in the opinion of BaFin, the probability increases that in each individual case a pre-contractual faulty clarification or faulty investment advice has taken place.
In doing so, they will use the corresponding (preliminary) view of BaFin as an argument that it is an asset or capital investment and not just a purchase of property or gold. The aim is to obtain compensation from the intermediaries or consultants. You will definitely be able to find advertisements on the net for the next few weeks, as always.
A claim for damages does not exist per se and certainly not (solely) because a prospectus may have been required. Taken in and of itself, this does not constitute a breach of the duty to inform. For this, more specific allegations would have to be made, such as a lack of risk clarification or an alleged lack of plausibility and an allegedly corresponding failure to examine.
This is all standard and in all likelihood it will happen. Examples such as BWF, PIM Gold and Bonus.Gold show that. But they also show that – precisely because it was previously assumed that it was not a question of an investment – there is generally no financial loss liability insurance for the intermediaries / consultants.
What is likely to happen at Aurimentum in the next few weeks (appeasement from management, uncertainty among customers, need for a good communication strategy, advertising by investor lawyers) is known as standard from other complexes.
The intermediaries and consultants can therefore organize themselves (well) and adapt to the experience in similar cases. We have usually represented the largest sales groups in such complexes (as in other earlier complexes, for example P&R, PICAM, INFINUS, Captura, EN Storage) and achieved good results in troubleshooting. So far, the vast majority of clients have survived.
However, there is also a risk, especially for successful distributors and their customers, that the claims that investor lawyers pursue too broadly and too intensively lead to an intermediary or consultant not being able to meet them (if he should at all).
Let’s wait.
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