Have you been to Tahiti? And what about your debtor? Case study, case №А32-35215/2014

21 august 2018

KEY MATTER AT ISSUE

Is it possible to bring a shadow owner to real secondary liability for a significant amount? Deposit Insurance Agency (Агентство по страхованию вкладов (АСВ)) fixed this complex quest. And its tactics became canonical for lawyers dealing with secondary liability issues.

BACKGROUND

АСВ, having taken over the bankrupt MezhPromBank, decided to recover RUR 75 billion from its ultimate owner – Sergey Pougachyov, and a number of top managers. They brought the bank to insolvency: provided billions in credits to obvious sham companies and terminated collateral transactions with borrowers – АСВ mentioned.

CLAIMANT'S TACTICS

In order to bring Pougachyov to secondary liability it was necessary to effectively prove that he de facto managed the bank, albeit not de jure. АСВ discovered corporate structure of the bankrupt bank which, through a chain of offshores, led to a New-Zealand OPK Trust Company controlled by Pougachyov. He himself stamped internal documents ‘approved’ of which the court became aware from employees. Their testimony was taken from a criminal case instituted against Pougachyov under misappropriation and abuse of powers accusations. Besides the stamps, some documents were addressed to the ‘board chairman’ without stating the name. АСВ proved that it was Pougachyov who was meant in all such papers.

RESPONDENT'S COUTER-ARGUMENTS

Respondent insisted that he only controlled MezhPrombank before 2002 when he became a senator from Tyva Republic, upon which he did not have any relation to the bank.

COURT RULINGS

The courts found that Pougachyov actually managed the bank and gave mandatory instructions to employees. The bank could not have provided large credits to sham companies and terminate collateral without the owner knowing and accepting it. And exactly these transactions killed MezhPromBank. In January 2016 Supreme Court agreed with the lower courts and rejected Pougachyov's appeal.

OUTCOME

In February 2016, the High Court of London enforced the Russian ruling, froze Pougachyov's assets of about $2 billion, and banned him from leaving England for contempt of court. However, disgraced oligarkh left for France where his dispute with Russia goes on in local courts. Meanwhile, АСВ searches and gets his numerous villas and yachts arrested across the world (he does not have assets in Russia).

S&K VERTICAL COMMENT

This is one of the most high-profile cases on secondary liability of a controlling person of a truly unprecedented amount. Sergey Pougachyov was recognized as a controlling person despite the fact that he formally was neither a shareholder nor a top manager of the bank. In order to prove the actual control, the court had to examine numerous evidence, data and documents originating from foreign jurisdictions. All of the above confirmed that it was Pougachyov at the end of the structure.

 

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