Future Issues in the Optimus Lawsuit... Incomplete Sales if Induced to Subscribe with "Principal Guaranteed" Claims

Focus on Lawsuits Alleging Investment Fraud
OEM Fund Involvement Also a Key Issue

[Asia Economy Reporter Park Jihwan] A lawsuit related to the Optimus Asset Management fund, which is facing a repurchase suspension crisis worth up to 500 billion KRW and escalating fraud allegations, is imminent. Investors are preparing lawsuits against the asset manager, distributors, and trust companies, and have begun recruiting lawsuit groups. Securities firms that sold the fund have also reported Optimus management officials to the prosecution on fraud charges. In future legal disputes, issues such as distributors' incomplete sales and original equipment manufacturer (OEM) funds are expected to be key points of contention.

According to the financial investment industry and legal circles on the 25th, the law firm Jeonghan began recruiting lawsuit groups for private fund investors of Optimus Asset Management from the 19th. The law firm Okims is also in the final stages of preparing lawsuits and plans to accept lawsuit applications from investors next week.

Currently, the Optimus fund is embroiled in fraud controversy for investing in assets different from those stated in the proposal. It was initially known to be stably managed by investing in accounts receivable related to construction projects ordered by public enterprises or government agencies, but it has been confirmed that a large portion was actually invested in private bonds of unlisted companies such as lending firms.

Law firms and investors are expected to focus on claims for damages against the asset manager, trust company, and distributors, not only regarding the asset manager’s suspected fraud in investment destinations but also on the three parties. In particular, they will consider the possibility of incomplete sales by distributors and whether the fund qualifies as an OEM fund.

In cases of incomplete sales, different results are expected depending on each investor’s product subscription process. For example, if the distributor induced customers to subscribe to the product by describing the investment risk as "stable" during the sales process, and the customer signed the subscription documents indicating they "heard and understood" this, the distributors’ responsibility is likely to be minimal. The problematic Optimus Creator fund is classified as a "low-risk" product, and the distributors explained the product structure as stated in the proposal.

On the other hand, if the distributor induced customers to subscribe by saying things like "there is absolutely no possibility of principal loss," "principal is guaranteed," or "it is safe as long as the country does not collapse," experts agree that distributors would have introduced the product inaccurately and would find it difficult to avoid responsibility for incomplete sales.

Whether the fund qualifies as an OEM fund will hinge on how distributors explained Optimus Asset Management’s role to customers. One Optimus fund investor said that when they asked their personal banker about what kind of company Optimus was at the time of subscription, they were told, "It is just a simple paper company, so you don’t need to worry at all." From the investor’s perspective, this could be understood as Optimus Asset Management being merely a paper company under the distributor’s effective control, leading to the misunderstanding that the distributor itself was managing the fund. Especially, this statement by the distributor’s employee could be seen as acknowledging the distributor’s deep involvement in the asset manager’s product, which may qualify the fund as an OEM fund.

Jang Inseong, a lawyer at the law firm Jeonghan, explained, "The general principle in damage compensation lawsuits is that the party making the claim (the investor) bears the burden of proof, but in this case, since the distributors have more information than the customers and hold a superior social position, the burden of proof may shift."

According to Article 64, proviso of the Capital Markets Act, which stipulates the liability for damages of financial companies, "a financial investment business operator who is liable for compensation shall not be liable if they prove that they exercised due care," it can be interpreted that distributors, who have more information about the damages claimed by investors, must provide proof.

He added, "In the upcoming lawsuit process, we plan to prepare extensively for establishing the damages by proving what mistakes the distributors made that caused investors’ losses."

This content was produced with the assistance of AI translation services.