FBK Legal Expert Anna Aktanaeva on Need for Thorough Analysis of Payouts to Debtor's Participants

As reported by the PRObankrotstvo portal, the Arbitration Court of the Moscow District has clarified which circumstances should be ascertained when considering claims to recover losses from a debtor's director in connection with payouts to participants (case No. A41-80386/2022).

Commenting on the clarifications from the cassation court, Anna Aktanaeva, Head of Practice at FBK Legal, points out that courts must consider the company's obligations to creditors at the time of the payouts, the debtor’s financial state, and purposes of these payments. If the payments are made in good faith in the ordinary course of business and without detriment to creditors, they should not lead to the director's liability. Otherwise, such payouts may be classified as an asset-stripping transaction, resulting in losses for the company and liability for the director.

A key factor is proving actual damages and a direct causal link between these damages and the director's actions. The court highlights the necessity to demonstrate that the payouts resulted in reduced assets available to satisfy creditors' claims and were carried out in breach of the director's duties.

The expert also stresses out that the approach helps distinguish legitimate distributions of funds from abusive practices, raises the standard of evidence in litigation concerning subsidiary liability, and ultimately promotes more balanced and equitable court proceedings.