Inaction is equal to opposition – Newspaper Kommersant No. 219 (7420) dated 11/25/2022

The Supreme Court of the Russian Federation (SC) recognized that the arbitration manager (AI) is obliged to be responsible for inaction in bankruptcy that caused losses, even if it is approved by creditors. Lawyers believe that the majority creditor, who voted for such inaction, may himself be held liable. However, according to experts, the question of the amount of losses remains open, which can be minimized if the active actions of the manager still would not lead to the replenishment of the bankruptcy estate.

On November 23, the Supreme Court published a decision on the responsibility of the AC for inaction. As part of the case of Stroymonolit JSC (declared bankrupt in June 2020), its bankruptcy trustee Alexei Belousov brought to the meeting of creditors the issue of recovering damages from the director of the debtor Marina Isaeva. In 2018, she sold the company’s key assets for RUB 32.1 million, transferring money to Amulet-K LLC (liquidated in April 2021) under an agency agreement for repairs. The majority creditor voted against the AU proposal, the minority creditors did not participate in the meeting. In July 2021, the bankruptcy case was completed, no property was found, the registry debt amounted to 6.96 million rubles.

Minority creditors Viktor Deniskov, Andrey Kuznetsov and Andrey Baranov went to court to recover losses from the manager in the amount of the outstanding debt of the bankrupt. In their opinion, in addition to not filing a lawsuit against the head of the debtor, Mr. Belousov also did not dispute the payment in favor of Amulet-K and did not apply to law enforcement agencies to identify signs of deliberate bankruptcy.

The Arbitration Court of the Moscow Region in August 2021 rejected the claim, the appeal and cassation agreed with this. The courts came to the conclusion that the manager could not file a claim against the director, since he did not have the primary documentation of the debtor, moreover, the meeting of creditors did not approve the holding of the director to liability. But the minority shareholders complained to the Supreme Court, insisting that when evaluating the actions of the AC, the court must 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” (see “Kommersant” dated October 19 ). The case was referred to the Economic Collegium, which canceled all judicial acts.

The Supreme Court acknowledged that the AC should itself assess the real possibility of restoring the violated rights of the debtor and creditors. The Board noted that “without the active participation of the manager” it is practically impossible to pay off debts. Therefore, the AC cannot refer to the fact that its actions, which led to negative consequences, were approved by the meeting of creditors, and “is obliged to compensate for the losses caused as a result of failure to fulfill obligations.”

The Supreme Court explained that Aleksey Belousov had to ask Marina Isaeva and Amulet-K about the nature of the repair work, the cost of which “for an inexplicable reason” was equal to the entire amount of the proceeds. Also, AC had to demand evidence of work completion and itself consider the issue of contesting payments in favor of Amulet-K and recovering damages from Ms. Isayeva. The majority shareholder, the collegium admitted, could protect the interests of persons involved in the alienation of the main assets of the debtor. Recognizing the conclusions of the courts about the absence of a connection between the inaction of the AC and the losses of creditors as premature, the Supreme Court sent the case for a new trial.

Arbitrazh.ru lawyer Anton Kravchenko explains that the Supreme Court applied a “corporate approach” to the AC, according to which the head of the company is obliged to act in its interests, regardless of the approval of his actions by the board of directors or the meeting of shareholders. “Whatever sanction the AC’s creditors receive, its own behavior is subject to assessment, it bears all the burden of responsibility for the decisions made, actions or inaction,” agrees Valeria Tikhonova, senior lawyer for bankruptcy projects at Vegas Lex.

AU Sergey Domnin adds that not only the fact of the sale of assets before bankruptcy is important, but also where the proceeds went: “Such a check is within the competence and area of ​​responsibility of the AU.” Ms. Tikhonova doubts the AC’s good faith and admits that he “could act jointly with the majority creditor.” In this regard, the general director of the Union of Arbitration Managers SRO “Northern Capital” Valeria Gerasimenko believes that it is possible to recover losses from the majority shareholder “in solidarity with the manager.”

Meanwhile, Anton Kravchenko clarifies, the question of the amount of responsibility remained open. According to Valeria Gerasimenko, it is necessary to recover damages from the AC in favor of the affected creditors and only in part of their outstanding claims, that is, without taking into account the debt to the majority shareholder. Mr. Kravchenko believes that it is necessary to assess the reality of replenishing the bankruptcy estate, provided that the AC acted actively and filed a lawsuit: “If creditors do not prove that the director had property that made it possible to pay off the bankrupt’s debts, then the prospects for recovering losses from the manager are unlikely.”

Ekaterina Volkova