"With the previous reasoning, there is no claim for damages," BGH judge hans-ulrich joeres clarified. "The advising bank does not have to clarify profit margins and own-account transactions."
The plaintiffs had invested between 17,000 and 300,000 euros via commerzbank in "global champion certificates" issued by a dutch lehman subsidiary and distributed in germany. After the insolvency of the american investment bank lehman brothers, the money was lost. The chances of getting it back after the renegotiation of the lower courts now demanded by the federal supreme court are slim.
In his explanation of the ruling, joeres made explicit reference to a first BGH ruling on two lawsuits filed by lehman investors in september 2011: according to this ruling, the bank does not have to point out in the advisory discussion how high its profit margin is or whether it sells securities from its own holdings. Lehman investors had already received a clear steaming with this judgment last year. "We see no reason to abandon jurisdiction on this point again," said joeres. In the case at hand, rulings by the lower courts had ruled in favor of the investors. Commerzbank had filed an appeal.
At the same time, however, joeres also asked whether the bank should not have pointed out a special risk of the "global champion certificates": that the investors’ securities could have become completely worthless under certain circumstances, even without the insolvency of lehman.
In such a case, there could be at least a small glimmer of hope for the investors who had been cheated: if the lower courts were to discover breaches of duty on the part of the banks that went beyond the accusations that had previously been made and rejected by the federal supreme court, there could be a new hearing before the federal supreme court.
"Banks cannot be forbidden to keep silent about their own profit margins," said bank lawyer hermann buttner. The bank should be viewed like a businessman who wants to make a profit. "This does not need to be mentioned, it goes without saying."The bank’s dual role as advisor and seller does not imply an increased duty of disclosure. The plaintiffs’ attorneys had objected to this: the bank owes neutral advice and not advice on the basis of which it wants to do business with the customer, said guido toussaint.