A responsabilidade civil do gestor do fundo perante o cotista com ingerência na gestão

Abstract

This dissertation aims to establish parameters for assessing the tort liability of the investment manager for losses arising from business decisions made with the interference of the investor who later seeks compensation. To this end, the study examines the manager’s responsibilities and fiduciary duties of diligence, loyalty, and disclosure, as well as the main characteristics of investment funds in which investor interference is more frequent. Investment funds may follow a traditional model, characterized by the separation of funds and managers, the plurality of investors, and asset diversification. On the other hand, there are funds with non-traditional purposes, such as tax and estate planning, private equity investment, and venture capital. In these structures, especially in single-investor funds, the investor may have greater influence over investment decisions. Regardless of the degree of interference, the manager remains bound by fiduciary duties and retains the final prerogative over the fund’s portfolio transactions. Even when discretion in selecting and negotiating assets is reduced or even eliminated, the manager acts as a gatekeeper, ensuring compliance with applicable regulations and the best interests of the fund. The manager’s civil liability is subjective, requiring proof of (i) negligent or wrongful conduct; (ii) causation; and (iii) damage. The manager may also be held liable for the fund’s obligations toward third parties if bad faith or willful misconduct is established. When assessing the manager’s liability toward an investor who interfered in the fund’s management, it is necessary to analyze whether the manager fulfilled its obligation of means and whether there is a proximate cause between any failure to comply and the resulting loss, particularly when the investor's interference was significant. In such cases, depending on the investor’s degree of involvement in management, their conduct may be considered a contributing factor, mitigating the manager’s liability, or an exclusive act of the victim, thereby excluding liability altogether.