Facts
X. and Y. had subscribed to shares of issues of Clinique Bellerive S.A. (CBSA), which were distributed by Dispo AG Zurich and later Dispo AG Vaduz. When CBSA went bankrupt, X. and Y. sued Interallianz Bank Zurich AG, the successor to Bank Gut/Streiff AG, as well as Max Hänsli for damages. They claimed that the capital raised from the investors was a special fund similar to an investment fund and therefore subject to the Federal Act on Investment Funds (AFG). Interallianz is liable to them as the custodian bank and auditor, and Hänsli as a member of the board of directors of Dispo AG Zurich.
The Commercial Court dismissed the claim, as it did not see a fund-like special fund, but rather that the investors had merely acquired rights to shares. The plaintiffs then appealed.
Considerations
The Federal Supreme Court concluded that it was a fund-like special fund within the meaning of Art. 1 para. 2 AFG, which was subject to Dispo AG Zurich as the fund management. Dispo AG Vaduz was seen as a mere circumvention measure to avoid the tax assessment of the Federal Tax Administration.
The Federal Supreme Court affirmed the applicability of the AFG, as Dispo AG Zurich acted as the fund management and the assets were collectively invested in accordance with Art. 2 para. 1 AFG. The…