Banking and Financial, ACF, College, Arbitrator for Financial Disputes, Rome, Decision no. 196 of 16 January 2018, configurability of a breach by the intermediary of the obligations inherent to the provision of investment services, sub specie of incorrect processing of a sales order
DONE
1. The dispute referred to the Board of Statutory Auditors concerns the configurability of a breach by the intermediary of the obligations inherent to the provision of investment services, sub specie of incorrect treatment of a sales order.
2. The Complainant, through the prosecutor, claims to be the holder of n. 1,764 Intermediary shares, for a total of € 110,250.00 invested, deposited in a securities fund and reports that he went several times during the months of February – March 2014 to the Intermediary to request the sale. On 2 April 2014, it then submitted a formal request for transfer, which only after one month, on 2 May 2014, and on express reminder was stamped for receipt by the Intermediary. This transfer request remained, however, unfulfilled. The Complainant also reports that he submitted a first complaint to the Intermediary in November 2014, complaining that the order had not been processed, and that he received a reply with which the Intermediary undertook to satisfy the request for sale by the end of 2014. Since this commitment has not been complied with, the Applicant reports that it has sent a further request, in April 2016, in order to obtain a copy of all sales orders received and processed, as well as the shareholders’ register. , so as to be able to reconstruct all the incoming and outgoing movements relating to individual shareholders. Not having received an answer, he initiated the monitoring procedure before the Court of Vicenza, coercively obtaining the delivery of the requested documents.
Making use of this documentation, the applicant points out numerous irregularities in the procedure for processing sales orders, in open violation of the duties of diligence and correctness in the execution of investment services. These irregularities, moreover publicly admitted by top management and resumed in various press reports, have, in his opinion, had the effect of preventing the sale of the shares held by him, preventing the consequent economic realization.
The attached documentation also shows that, in response to a further complaint submitted to the Intermediary on March 8, 2017, the restoration due was also denied based on the reconstruction of the exact chronological order of sales orders made by the Intermediary.
3. Following the events described above, the Complainant has therefore turned to the Arbitrator for Financial Disputes, requesting, for the above, the compensation of a sum equal to 110,250.00 euros, corresponding to the value of the n. 1,764 shares (valued at the price of 62.50 euros per share) subject to their transfer request, which remained unanswered.
4. The Intermediary did not submit any deductions.
RIGHT
Not being challenged and, indeed, proving to be tabulas that the Intermediary has not fulfilled its obligation to manage and correctly process the sales order in question, it must be ascertained whether and to what extent this non-fulfillment may have caused damage to the the applicant.
In this regard, the Board, in line with what has already been decided with regard to similar numerous defaults already ascertained by the same Intermediary, believes that these violations have effectively deprived the client of the possibility of selling to third parties if not all at least a part of the securities he held, having regard in this regard to the period in which the aforementioned order was issued (May 2014) and the quantity of shares put up for sale, having to consider the likelihood of disposing of such a share as much higher as the quantity put in sale. In this sense, on the basis of a determinative process already established on the basis of previous similar decisions, the applicant would have had a probability of more than 50% of the order, if the Intermediary had diligently and promptly executed the order. sell at least half the shares. It follows that, considering the zeroing of their value following the start of the compulsory administrative liquidation procedure of the Intermediary in question, the damage can be liquidated with equitable appreciation in an amount equal to half the equivalent value of € 110,250.00 and therefore € 55,125.00 in addition to the monetary revaluation for € 205.00 for a total of € 55,330.00.
The Board, in partial acceptance of the appeal, declares the Intermediary obliged to pay the appellant, as compensation for damages, the sum of € 55,330.00, including monetary revaluation and sets the deadline for execution within thirty days of receipt of the decision.
Within the same term the Intermediary informs the ACF of the deeds made in order to comply with the decision, pursuant to art. 16, paragraph 1, of the regulation adopted by Consob with resolution no. 19602 of 4 May 2016.
The Intermediary is required to pay Consob the sum of € 500.00, pursuant to art. 18, paragraph 3, of the aforementioned regulation adopted with resolution no. 19602 of 4 May 2016, according to the procedures indicated on the institutional website www.acf.consob.it, section “Intermediaries”.
Source ACF
