The Supreme court (SC) acknowledged the possibility of bringing to subsidiary responsibility of the members of the Board of Directors (BOD) of the bankrupt company. This question was first considered at the level of the Supreme court. Sun proposed to evaluate the degree of participation of Board members in committing unprofitable for the debtor of the transaction, and whether they acted by its initiators or the beneficiaries. Lawyers talking about a serious increase in risks of accountability for those in leadership positions in the management bodies.Sun has published the decision in the case of vicarious liability of the members of the Board of Directors of the bankrupt JSC “Metering”. According to the debtor’s creditors, the Board of Directors agreed to the alienation of large asset on market terms, and on the eve of the initiation of bankruptcy proceedings. This is the first case in economically entirely on vicarious liability of persons holding such posts, most often the defendants in such disputes are the CEO and the owners.Claims against the Directors Maxim Arefiev, Alex Dydyckin, Dmitry Kovalev and Boris Lapenko arose because they approved 20 July 2016 deal about entering accounts receivable “Metering” in size 867,98 mln (estimated at 610,57 million rubles) in the authorized capital of LLC “Management company “Svarog”” in exchange for a share in 57,07%. The accounts receivable consisted of the right of claim to sue “Fuel and energy complex of St. Petersburg” and OOO ITB.The original claim by the debts of the bankrupt to his former CEOs and Board members filed by the bankruptcy Trustee “Metering”, but without success — his claims were rejected by Arbitration court of St.-Petersburg and Leningrad region. To appeal the denial by the Manager was, and the appeal has turned GUP, and in the appeal, he was joined by another lender — BM-Bank.Courts have held that the transaction has not changed the financial condition of the debtor, and the creditors had not proved that “the actual value of the receivable at the time of its transfer to the UK is the size of requirements”, also obtained the proportion of “Svarog” included in the bankruptcy estate of the bankrupt.However, lenders made the transfer of cases to economically sun. In the complaint, it was stressed that the approval of the transaction and the act of transfer and acceptance was signed the day before the commencement of the bankruptcy case “Metering”, and later (October 2017) the General Director of “Svarog” Boris Lapenok. The transaction took place, despite the fact that about the intentions of the creditors of the bankrupt “Metering” became known in April 2016, but then the court returned the application because of deficiencies in the documents. For six months, during which the court did not start consideration of the issue, the owners of “Metering” had to make a decision on the liquidation of the company, so it went into bankruptcy under the simplified procedure.Moreover, according to the evaluation report submitted by the Manager, the cost 57,07% share in the UK amounted to 367 million rubles, while the “Svarog”, having the right to claim the debt from the PMU sought him more than 650 million rubles., the Implementation of a share in “Svarog” brought in the bankruptcy estate of the debtor, only 40 million rubles In regard to vicarious liability must be brought, and the “Svarog”, pointed out the creditors.The case was transferred to economcally sun, which on 22 June overturned the lower courts ‘ decisions and sent the dispute for reconsideration. Since defendants were in SD, “in power had their status had the opportunity to have a significant impact on the activities of the debtor,” declared the sun. The Board stressed that the arguments made by Board members losing trades have not been evaluated by the courts, and in such circumstances, the burden of refutation of the injury to creditors was to be transferred to defendants.In the judgement of the Supreme court States that for responsibility to a member of the BOD should act as an initiator or beneficiary losing trades, therefore, the courts should “determine the degree of involvement” of each of them in the process of withdrawal of the disputed asset and the “awareness of these actions caused significant harm to his creditors.” The equivalence of the same disputed transaction need to check at the time of its Commission, and not a year later, as did the bankruptcy Trustee. Sun also agreed that the economy needs to be brought into the case by the Respondent.Lawyers say attempts to prosecute Board members have already been, but before the sun economcally question appeared for the first time. Partner at PKF MEF Alexander Ovesnov said that now the sun has clearly formulated the criteria according to which you need to consider such disputes. The lawyer expects a greater attention to the activities of SD from the bankruptcy Trustees, creditors and FNS. At the same time, partner Saveliev, Batanov & Partners Radik Lotfullin fears that now the courts will increasingly attract Directors to vicarious liability, referring only to the fact of the position.”Reply to creditors should the person who initiated the transaction or benefited from the transaction, including potential”. The lawyer hopes that the decision of the SC not only help the creditors and the liquidator, but will “lifeline” for those whose role in the decisions was minimal. Mr. Ovesnov also calculates that the position of the sun will not lead to “indiscriminate and automatic involvement of the Board members to subsidiary liability”.The arbitral panel
