Collection department – Newspaper Kommersant No. 195 (7396) dated 10/20/2022

The Supreme Court of the Russian Federation (SC) will decide whether it is possible to prosecute an insolvency practitioner (AI) who has not applied for the recovery of damages from the head of the debtor company. In this particular case, AC relied on the decision of the creditors’ meeting, which voted against the claim. But now minority creditors accuse the manager of default. The experts agree that the AC should make its own management decisions, but they propose to exclude from the assessment of the damages the debt to creditors who approved the inaction.

The dispute on whether the decision of the meeting of creditors, which voted against filing a lawsuit against the head of the bankrupt company, can relieve AC from liability for inaction has been submitted to the Supreme Court. In the course of the insolvency case of Stroymonolit JSC (declared bankrupt in June 2020), it turned out that the company, represented by director Marina Isaeva, sold its key assets – a shopping center and a transformer substation in the Moscow Region for 32.1 million rubles. The funds were credited to the debtor’s account at the Moscow Credit Bank and were transferred to Amulet-K LLC “under an agency agreement for the repair of the building.”

After the appearance of information about the liquidation of Amulet-K, the bankruptcy trustee of Stroymonolit Alexei Belousov submitted to the meeting of creditors on March 30, 2021 the issue of going to court to recover damages from Marina Isaeva. But the majority creditor voted against, and the minority shareholders did not participate in the meeting. In April 2021, Amulet-K was expelled from the Unified State Register of Legal Entities. In July, the bankruptcy of the joint-stock company ended – the debts amounted to 6.96 million rubles, no property was found.

Minority creditors Viktor Deniskov, Andrey Kuznetsov and Andrey Baranov appealed against the inaction of the manager in the form of a failure to file a lawsuit against Ms. Isaeva and demanded to recover from him losses in the amount of the outstanding debt of the bankrupt.

They stated that the AU “improperly performed its duties”, including not contacting law enforcement agencies when it revealed signs of deliberate bankruptcy and not contesting the Amulet-K payment.

The courts of the first two instances rejected the complaint, but the cassation sent the dispute for a new consideration. The collection of losses from the AC was also refused – the courts explained that the manager did not receive the debtor’s primary documentation, which, taking into account the decision of the creditors’ meeting, did not allow the ex-director to file a claim. But minority creditors appealed to the Supreme Court, emphasizing that the reality of Stroymonolit’s obligations to Amulet-K was also not confirmed. In their opinion, evaluating the actions of the AC as bona fide or bad faith, the court should correlate them with “behavior expected from any independent professional manager, taking into account the rights and legitimate interests of the creditor community, and not individuals.” The case was referred to the Economic Collegium, the hearing is scheduled for November 14.

“The courts do not always determine exactly when the decision of the meeting of creditors is binding on the manager, that is, it can mitigate or release him from liability, and when it is advisory,” says Vladimir Klimenko, senior lawyer at BGP Litigation. He refers to this case as “rather recommendatory”. ProLegals partner Marina Morozova agrees that in this case, the AC was “not bound by the decisions of creditors”, and in the absence of primary documents, it could “claim the debtor’s bank statements and analyze suspicious transactions.” Denis Krauyalis, junior partner at Yakovlev & Partners, adds that in a review from 2018, the Supreme Court spoke about the independence of the “management decisions” of the AC. Probably, the lawyer believes, the Supreme Court will “develop this position” in the Stroymonolit case.

Valeria Gerasimenko, the general director of the Union of Autonomous Institution SRO “Northern Capital”, Valery Gerasimenko, admits that “no one has canceled the duty of the manager to file a claim”, but considers it wrong to “put all responsibility solely on the Autonomous Institution”.

Creditors themselves can go to court, Ms. Gerasimenko adds, “but for the most part they do not enjoy these rights and must accept the risk of adverse consequences.” AU Sergei Domnin notes that it is not completely clear from the judicial acts whether the debtor withdrew the money and whether it was possible to prove it. In his opinion, even if you recover losses from the manager for inaction, you need to exclude from their amount the debt to the majority creditor, which approved this inaction.

Ekaterina Volkova, Anna Zanina