The other day (30 Jan) the Arbitration court of Moscow region has suspended production at the request of Agency on insurance of contributions (ASV) on the imposition of vicarious liability of certain individuals who controlled, according to the Agency, now in bankruptcy, the Bank “Pushkino”. The basis for such a judicial decision was purely technical. The court found that the DIA first you need to wait until the end of calculations with creditors of Bank balances assets, and only then to demand from the owners of the Bank funds that are necessary for a full settlement with creditors. The claim of the DIA, if you study it carefully, is unique.
The unprecedented case
The fact that the number of co-defendants, jointly and severally engage DIA to vicarious liability for a total amount of RUR 14.8 bln. number of persons not legally related to the Bank “Pushkino” nothing. While the meaning of vicarious liability is to make the management and owners of the Bank contributed to its bankruptcy, to pay creditors from their own funds. We are talking about the Eduard Pichugin, CEO of Lenfilm studios, Board member of the Union of cinematographers of the Russian Federation and the founder of Federal cinema chains “Kronverk cinema” and “Movie city”. He, among others, of direct relevance to “Pushkino” listed as defendants in the suit DIA on vicarious liability.
However, as stated by himself Pichugin, he was never a shareholder of “Pushkino”, and was the owner of the shares of Bank “AB Finans” which was sold to the owners of the Bank “Pushkino” and attached to it at the end of 2011. In December 2011, “AB Finance” was liquidated as a legal entity. According to the database SPARK, Pichugin’s share in the Charter capital of “AB Finance” was of 15.04%. The essence of the statement of Eduard Pichugin is that it is not in principle could contribute to the collapse of the “Pushkino” (license revoked in September 2013) and, therefore, should not be responsible for the incident.
The fact that de jure Pichugin had to “Pushkino” nothing confirmed, and not associated with a source involved in the proceedings. Don’t deny it and at DIA. However, the Agency see the connection between the possession of Pichugin shares in excess of the non-existent “AB Finans” and insolvency “Pushkino”. “Pichugin E. A. took the decision on the issuance of non-performing loans of the so-called “technical” borrowers (non-refundable loans), a debt which remained outstanding on the balance sheet of AB “Pushkino”, — stated in ASV. The fact that in the course of accession the assets (including poor quality) and liabilities of the joining of the Bank were transferred to the “Pushkino”.
This is the first attempt to force the DIA to pay the debts of the bankrupt Bank not his direct ownership. However, according to a source familiar with the situation, the idea belongs not directly to the DIA, but retained by the Agency for the conduct of the case to outside lawyers.
Interviewed lawyers briefcase very interested.
“It’s an interesting precedent, informed of these proceedings I do not remember,” says the partner of lawyer Bureau “Partnership of legal aid” Sergey Romanov. On the one hand, the logic DIA clear: substandard assets of Bank “AB Finans”, the formation of which Pichugin was able to participate as a co-owner of the Bank after its accession to the Bank “Pushkino” aggravate an already balance “Pushkino”, participating in the formation of his insolvency, he says. On the other hand, continues Novels, this broad interpretation of the relevant provisions of bankruptcy law, and it is difficult to predict how it would react to the court. “I’ll be interested to follow up this matter: in Russia, the rules on vicarious liability under appreciated and seldom correctly used, therefore such innovations is doubly interesting”, — he concluded.
“This is really a brand new idea in the Russian practice of attracting bankers to vicarious liability, — says head of the analytical Department of legal firm “Intralux” Olga Pleshanova. “Indeed, we can assume that the accession “AB Finans” if he was in a poor state, worsened the situation, “Pushkino”, including contributing to its subsequent collapse,” she says. According to reliable sources , DIA conducted an analysis of the state “AB Finans” at the time of accession to the “Pushkino”. This analysis confirmed the poor financial position of the joining of the Bank at the time.
To predict the prospects for business lawyers. “As the case is unprecedented in all respects, having no analogues to consider his trial to be difficult,” — says Pleshanova. It is estimated that winning the DIA is not excluded, but the Agency will need to prove that the financial situation of “AB Finans” to the annexation was bad, what acts or omissions specified co-owner was the reason that the accession “AB Finans” has become one of the causes of the bankruptcy of the Bank “Pushkino”. In addition, the Agency will have to prove that the accession had no economic sense and had a purpose, for example, the departure of the co-owners of “AB Finans” from liability for its potential failure.
The partner of the legal company “Iontsev, Lyakhovsky and partners” Igor Dubov more categorical. According to him, the law in this situation strict and does not involve vicarious liability of entities not affiliated legally with the Bank. “I doubt DIA will win, but in any case, the example of the case created an important precedent,” — said Dubov.
If ASV would still be able to win in court, the consequences of such a precedent can be massive.
“DIA, and the principle of arbitration managers will receive a new arm to fight with diagrams unfair elimination”, — says Olga Pleshanova. She recalled that these schemes are essentially limited to the liberation of the obligations and to evade responsibility for it, very common, not only among banks but in the non-Bank sector. It is, for example, the elimination of the company’s debt by attaching to a firm one-day, or by transfer of debt loss provision.