On 23 December 2009, the District Court of Amsterdam gave judgment in the case of Stichting Pensioenfonds OPG (OPG) versus State Street Global Advisors Limited (SSGA). In this case OPG held SSGA, the asset manager, liable for the damage the pension fund had sustained due to its investments in a specific investment fund being lost in the bankruptcy of Lehman Brothers. OPG argued that SSGA breached a warranty that provides that SSGA should have protected OPG's investments against bankruptcy risks. The District Court ordered SSGA to pay €40 million in compensation, plus interest, and costs.
When an investment manager invests in a certain fund on behalf of its clients, the participations in that fund are administered to an account held in the client's name. This is usually in accordance with the investment management agreement setting out certain requirements concerning the segregation of client assets. However, based on the District Court’s ruling such segregation may be insufficient to protect the asset manager from liability. Should the custodian of a fund go bankrupt while (a part of) the assets of that fund are placed with a third party (as security, in custody or as an investment), the asset manager could be held liable for the damages incurred by clients as a result of the bankruptcy.
The ruling can be found (in Dutch) at: http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BK7407&u_ljn=BK7407.