Experts say that the STJ’s decision does not prevent actions, but makes the dispute more technical and requires proof against each fund agent
Shareholders seeking compensation for losses in investment funds will have to produce more specific evidence after a decision by the 3rd Panel of the STJ (Superior Court of Justice) that ruled out the automatic liability of agents in the financial chain. Lawyers heard by Poder360 state that the understanding does not prevent legal actions, but increases the level of requirement to demonstrate the failure of brokers, distributors, managers or administrators.
In practice, the investor will have to prove which agent carried out the irregular conduct, which legal, regulatory or contractual duty was violated and how this conduct directly caused the loss.
A of the STJ judged the on May 5, 2026. The rapporteur was minister Daniela Teixeira. The collegiate unanimously, that there is no consumption relationship between the shareholder and the investment fund itself. The court also stated that the distributor has the duty to verify the adequacy between the investor’s profile and the fund’s risk and to present the information transmitted by the manager. Read the of the ruling (PDF — 70 kB).
For Matheus Puppe, lawyer, master and doctorate student in digital law and consultant at the decision makes the search for compensation “more difficult, but not impossible”.
“The central point is that the STJ removed the logic of automatic liability for all agents involved in the investment chain”he stated. According to him, the financial loss alone is insufficient to hold the participants in the operation responsible.
Bruno Paiva Cruz, lawyer in the firm’s litigation area said that understanding “does not eliminate the right to compensation, but increases the level of demand to obtain it”.
According to him, before the decision, unqualified investors sought to apply a broader logic than (Consumer Protection Code), with joint and objective responsibility of different agents in the chain. Now, the STJ has made it clear that each participant must be evaluated separately, within the limits of their role.
HIGHER BURDEN FOR THE SHAREHOLDER
In the lawyers’ opinion, the shareholder will no longer be able to maintain only that he had a loss in the fund to sue all participants in the investment chain.
It will be necessary to individualize conduct. The broker or distributor may respond if there is a failure in the offer, in the product recommendation, in the analysis of suitability or explaining the risks.
The manager may be held responsible for non-compliance with investment policy, reckless management, conflict of interest or breach of fiduciary duties. The administrator may be held liable for failures in supervision, control, bookkeeping or compliance with regulatory duties.
Puppe states that the shareholder now has a “more sophisticated burden of proof”. According to him, it is not enough to say that all agents participated in the distribution, management or administration structure of the fund.
Cruz also assesses that the investor will have to demonstrate the specific failure of each agent. According to him, it will be necessary to point out whether the administrator acted with serious negligence or intent, whether the distributor failed to fulfill its duty to suitability or if relevant information was omitted.
MARKET RISK
Lawyers claim that the decision reinforces the difference between loss arising from ordinary market risk and loss caused by compensable failure.
Puppe says that the investor will have to demonstrate that the loss was not just due to normal volatility, but to irregular conduct, such as inadequate sales, omission of relevant information, non-compliance with investment policy, poor management, conflict of interests or governance failure.
According to him, if the product was sold as conservative, liquid or low risk, but had a strategy incompatible with this profile, there is a relevant point of investigation. The same applies to cases in which the fund has deviated from its investment policy, unduly concentrated risks or failed to report relevant events.
Cruz states that liability remains possible in cases of obvious fraud, proven mismanagement or flagrant non-compliance with the duty of suitability — a rule that requires compatibility between the investor’s profile and the risk of the product offered. “What changes is the path to achieve it”these.
PROOF REQUIRED
To support an action, the investor must gather documents and records of the contracting and maintenance of the investment.
Among the materials cited by the lawyers are:
- conversations with advisors;
- emails and messages;
- recordings;
- reports sent by the broker;
- advertising material;
- bottom blade;
- regulation;
- supplementary information form;
- suitability history;
- declared investor profile;
- recommendations received;
- extracts;
- application and redemption orders;
- communications sent by the fund.
Puppe states that, in many cases, technical proof, such as expertise or specialized opinion, may also be necessary to demonstrate that the loss resulted from a lack of information, the product’s inadequacy for the investor’s profile or a breach of management, administration or distribution duties.
CDC HAS NOT BEEN COMPLETELY AWAY
The STJ’s decision does not completely rule out the application of the Consumer Protection Code in all relationships involving investment funds.
The court decided that there is no consumer relationship between the shareholder and the fund itself. According to the understanding, when investing resources, the investor becomes part of a condominium of resources, and not purchasing a product or service directly from the fund.
Cruz states, however, that the CDC may continue to apply in the relationship between the non-professional investor and the administrator, manager, distributor or broker, as the case may be. According to him, the reduction in protection occurs mainly in relation to the investment fund itself.
In practice, this also affects the discussion about reversing the burden of proof. At the CDC, this mechanism can facilitate consumer defense when there is hyposufficiency or verisimilitude of the allegations. Without the automatic application of this logic to the fund, the investor may have more difficulty obtaining the investment.
Still, Cruz claims that the (Civil Procedure Code) allows redistribution of the burden of proof in situations of excessive difficulty for one of the parties or greater ease in obtaining evidence for the other.
UNDERSTAND THE DECISION
The 3rd Panel of the STJ analyzed a case involving losses of a non-professional investor in a fixed income investment fund.
The board decided that there is no consumer relationship between the shareholder and the investment fund itself. For the court, the shareholder is part of a condominium of resources, and the fund does not directly provide a service to the investor.
The Court also distinguished the responsibility of the different agents involved. Managers and administrators may be liable for losses caused by mismanagement, fraud, intent or serious negligence. Distributors may respond if they fail to comply with their own duties, such as suitability analysis and adequate transmission of information to the investor.
The decision does not prevent compensation, but it eliminates the idea that all agents in the financial chain should automatically respond for a loss in the fund.
