Supreme Court shows a way out of a blind end. Case study, case №А40-56632/2014

22 august 2018

PARTIES

Claimant – Yuriy Malykh, respondent – Maria Nefedova (also - CEO), members of NPO 'Fakel-M', OOO, holding 50% shares each.

REPRESENTATIVES

Malykh – Moscow Region Bar.

BACKGROUND

When Malykh became a shareholder of Fakel back in 2009, Nefedova paid up his share. According to her, several days later she understood that she should not have done that, and the company returned erroneously credited money to her.

MATTER IN DISPUTE

In 2014 Malykh requested excluding Nefedova from the company as she was causing damages to it and failed to hold shareholder meetings. Nefedova filed a counter claim on Malykh’s exclusion since he had failed to pay up his share in the capital and hindered Fakel's activity (for example, he achieved security hold of the company’s only account flagging it with a corporate conflict, after which he filed a fraud complaint which resulted in the company being deforced of its computers, bank keys and all documents).

RULINGS BY COURTS OF FIRST AND SECOND INSTANCES

Both claims were rejected due to the fact that Malykh's share was not paid up, therefore he did not become a shareholder.

RULING BY THE COURT OF CASSATION

Malykh is indeed a shareholder in the company, however claims shall be rejected: 'Mutual pretences of members owning equal shares evidence existence of a corporate conflict and a wish to have it settled by means of depriving a member of his rights to a share is inadmissible.

RULING BY THE SUPREME COURT

Equal distribution of shares as such is not a reason to reject a claim. Courts should have fixed which of the parties acted in good faith considering that Malykh could not have affect return of the payment for the share in the capital. They should have determined whether he actually acted as a shareholder (whether he voted at general meetings, etc.).

SECOND ROUND RULING BY THE COURT OF FIRST INSTANCE

Malykh to be excluded from the company as requested by Nefedova since he blocked the company’s account and filed fraud complaint deliberately in order to hinder the companies activity.

LAWYER'S COMMENTS

In Fakel-M case, Supreme Court specified its position which it voiced in October 2014 with regard to a so called 'deadlock' – corporate conflict where shareholders own equal number of votes. Where mutual equivalent pretences exist, exclusion of a shareholder is only possible in extraordinary situations – the court said back then (case №А06-2044/2013). 
Courts refer to this reasoning fairly often rejecting claims just because they did not want to dig into relations of equal shareholders. Fakel-M case was not an exception. Supreme Court, however, explained that equal distribution of shares as such is not a reason for such rejection. It is necessary to figure out breaches committed by each founder and how these facts affected the company. In the second round, the court nontheless did found grounds to exclude one of the shareholders. 
Such an approach is justified. Despite mutual pretences and failure to reach a compromise shareholders shall act lawfully, in good faith and without damaging the business. Where one of them stands on the way of the business, while the second one, although committing breaches, did not cause any damage to the company – the latter shall have the possibility to protect himself by means of a claim on exclusion of the saboteur from the company.

 

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