How to contest a secret reorganization. Case study, case № А41-348/2013

16 august 2018

PARTIES

Claimants – Alexey and Elena Kouryatnikov, owners of 50% in Aprikus; third parties – other shareholders of Aprikus – Alexandra and Elena Kondrashova, Elmira Galcheva; respondent – Corall OOO.

REPRESENTATIVES

Claimant – Trounov, Ayvar and Partners, Attorneys-at-Law; respondent – Grebelskiy and Partners, Attorneys-at-Law.

BACKGROUND

Conflict between Kondrashovs and Kouryatnikovs is a lengthy one – back in 2010 Kondrashovs sought to exclude Kouryatnikovs from Aprikus (case № А41-13415/2010). They succeeded on the second try when in mid 2012 Kondrashovs and Galchina voted for Aprikus termination by way of accession to Corall in which they also were shareholders. Kouryatnikovs were not informed of that meeting. They decided to have the decision on reorganization and accession agreement invalid therefore reinstating Aprikus.

RESPONDENTS' POSITION

Specific, shortened, statute of limitation period exists for such cases – two months after the day when the claimant becomes aware of the decision. Kouryatnikovs missed it.

RULINGS BY COURTS OF FIRST AND SECOND INSTANCES

The courts decided to grant the claim due to breaches in holding the meeting. Statute of limitation period wasn't missed because, according to s. 24 of the joint ruling by Plenums of Supreme Arbitrazh Court and Supreme Court of 9 December 1999, general meeting decisions have no legal force in such cases.

RULING BY SUPREME COURT

The Court stated that Plenum shall not apply in the case at hand which means that Kouryatnikovs missed the two-months deadline for contesting the decision. At the same time, in what relates to accession agreement the claim is subject to general rules on the statute of limitation period which means that it shall be heard. But the main thing here is that the claimants have chosen a wrong way of protecting their rights – even if the decision and agreement are held void, this will not help them in reinstating the company which existed prior to reorganization. To achieve this Kouryatnikovs should have contested the transaction itself and requested enforcement of implications of its invalidity.

COMMENT BY S&K VERTICAL

If shareholders have lost their corporate rights after secret reorganization of their company, they shall contest the reorganization as a void transaction – this is what Supreme Court decided in Kouryatnikovs and Kondrashovs case. This ruling may help simplify contesting reorganizations, as the main goal thereof is to reinstate the shareholders' rights. Of course, one may contest decisions passed by the general meetings or entries in the state register, but most likely that won’t help. Attempts to contest reorganization have also failed in earlier periods as courts did not treat it as a transaction but rather as a means of termination and creation of legal entities. The present ruling may help convince them otherwise.

 

Вся analytics