Facts
The appellant, [A.] Inc., had been a customer of the respondent, Bank [B.] (Switzerland) AG, since 1999. The current contractual basis of the banking relationship between the parties is a account agreement of December 2005. On February 15, 2000, the respondent acquired 746.03 shares in the Fairfield Sentry Fund for the appellant at a price of USD 499'998.86 plus stamp duty of USD 750.--. The respondent received a fee of USD 3'749.99 for this. The Fairfield Sentry Fund invested the assets entrusted to it with the brokerage firm of the meanwhile convicted fraudster Bernhard Madoff.
In September 2008, the appellant instructed the respondent to return the fund shares purchased for it and subsequently held in trust. This return was made only a few weeks before the discovery of Bernhard Madoff's fraudulent activities. The redemption amount was USD 1'007'591.10, of which the appellant received a net amount of USD 994'996.21 on its account on October 15, 2008, after deducting a fee of USD 12'594.89 for the respondent.
After the disclosure of Bernhard Madoff's fraudulent activities in December 2008, the Fairfield Sentry Fund had to file for bankruptcy. On April 19, 2010, the liquidators of the Fairfield Sentry Fund, among others, filed a lawsuit against the respondent with the Supreme Court of the State of New York. The plaintiffs in the US proceedings essentially demanded the repayment of all payments made from the Fairfield Sentry Fund for fund shares acquired between April 20, 2004, and December 2008.
Considerations
The Federal Court had to examine whether the respondent could invoke a claim for release against the appellant due to its claim in the US proceedings. The appellant raised various objections to the facts and argued that the claim of USD 1'007'591.10 asserted by the liquidators of the Fairfield Sentry Fund against the respondent was not a liability within the meaning of Art. 402 para. 1 CO, but rather damage pursuant to Art. 402 para. 2 CO.
The Federal Court dismissed the appeal and assumed that the respondent was entitled to a claim for release. Since the pledge on the appellant's bank accounts is no longer disputed before the Federal Court and the available credits are not sufficient to cover the claim for release, the appeal is to be dismissed.
The lower court had established that the respondent, following the appellant's instructions, returned the purchased fund shares in the critical period and is therefore threatened by the US lawsuit. If the return had not been made, the basis for the lawsuit would…