Unlawfulness as an advantage. Case study, case №А07-10144/2011

9 august 2018

PARTIES

Claimant – Zinaida Moulyukina, respondents – Natalya Louksha (also CEO), Tatyana Gazizova and other shareholders of an Guzel tailor shop in Ufa.

BACKGROUND

One of the founders of Guzel died in 2008, Moulyukina was among her heirs. In 2009–2010 Guzel held three shareholder meetings during which Louksha and Gazizova, then third parties in relation to the company, acquired shares in it and then increased their shareholding through pre-emption rights.

MATTER IN DISPUTE

Moulyukina requested transfer of rights and obligations of the buyer of shares onto her. She claimed that she was not aware of the initial alienation of shares to third parties (COE, Louksha, did not inform her thereof) and that she did not consent to it, therefore her pre-emption right to acquire such shares was breached. In course of the proceedings an expert analysis confirmed that Moulyukina's signature on shareholder resolutions was forged.

RULINGS BY THE COURT OF FIRST INSTANCE AND CASSATION COURT

The courts transferred only rights under initial agreement to Moulyukina, while rejecting the rest of the claims since at that time Louksha and Gazizova already were Guzel shareholders.

RULINGS BY THE COURT OF APPEAL AND SUPREME COURT

The courts granted Moulyukina's claims in entirety. Since decisions were invalid, Louksha and Gazizova did not become shareholders.

COMMENTS BY S&K VERTICAL

The case touches upon two major points: when exactly a heir obtains all corporate rights, including pre-emption right to acquire shares. And whether a buyer of a share, in case of breaches of pre-emption rights of existing shareholders, becomes a rightful shareholder. 
Supreme Court rejected respondents' arguments that neither the first, nor the second transaction by Louksha and Gazizova breached Moulyukina's rights. The court took a more logical and fair approach stating that Moulyukina got all corporate rights as from the date of inheritance release. And since all rights under the initial acquisitions by Louksha and Gazizova are transferred on her, the same shall apply to the following transactions – this is due to the fact that Louksha and Gazizova did not get shareholder status. The main idea here is that unlawful conduct shall not give advantages as against good faith actors.

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