Transaero Airlines, recognized as insolvent in 2017, not only surprised by the scale of the collapse of the once largest airline, but also filled up the history of Russian bankruptcy law with a number of precedents. First, a criminal case against the manager and an unprecedented amount of claims for the payment of wages. Now the new stage: immediately two applicants appealed to the arbitration court with the requirement to bring them to subsidiary responsibility. VTB Bank has addressed claims for 249.2 billion rubles to actual owners and members of the board of directors of the bankrupt - spouses Olga and Alexander Pleshakov and Tatyana Anodina. And Transaero’s bankruptcy manager Alexei Belokopy sued Dmitry Saprykin, the former head of Transaero, (the amount of the claim is not specified).

According to the established court practice, the defendants in such cases hope for almost nothing. But the applicants' charges are structured in such a way that it becomes obvious: the plaintiffs do not understand the true reasons for bankruptcy.

Who is guilty?

The applicants allege that they have substantial evidence of the defendants' guilt. True, they argue differently and in different ways. VTB Bank talks about the provision of false financial statements, which retroactively corrected. This, according to the bank, allowed to hide the real financial position of the company and get loans. At the same time, the bankruptcy trustee charges the former director of Transaero with the fact that the company did not pass attestation at Rosaviation and unreasonably stopped selling tickets, which, according to him, led to bankruptcy.

Subsidiary liability refers to additional liability - for example, collecting a debt from another person if the main respondent cannot fulfill his obligations. The most common example is bankruptcy cases where the responsibility for the obligations of a bankrupt company may be borne by persons who have had the opportunity to influence a bankrupt or determine his actions, including contributing to bankruptcy.

A lot of cases have been accumulated in the past few years of accusations of subsidiary liability of controlling persons. The loudest of them, perhaps, is the case of Sergei Pugachev, the beneficiary of the International Industrial Bank. Together with him, Marina Illarionova, Alexander Didenko and Alexey Zlobin, who were members of the bank’s governing bodies, became defendants in the case. They were accused of the withdrawal of bank assets under the guise of lending and the formation of unsecured loan debt. The administrator has described in detail the degree of guilt of each of the participants in the case. As a result, the court charged 75 billion rubles from Pugachev, 68 billion rubles from Illarionova, and 7 billion rubles from Didenko and Zlobin.

A similar situation arose when the beneficiary of the grain company "Nastyusha" Igor Pinkevich was brought to secondary liability in the amount of 39 billion rubles. The court decided that he was the beneficiary of the withdrawal of funds from the company's assets.

The case of Transaero is slightly different: direct actions that could cause losses to the company can only be recognized as dividend payments in 2014 in the amount of 138 million rubles, as well as premium payments to key management personnel in the amount of 284 million rubles in 2013 and 2014. Therefore, the victory of the plaintiffs intending to recover from these persons 249 billion rubles. can not be considered a foregone conclusion.

What is your evidence?

The presumption of guilt in our country does not determine the outcome of the case, but only redistributes the burden of proof. In the framework of the upcoming trials, the defendants can present convincing arguments showing that the reason for the bankruptcy was not the actions that formed the basis for the statements. Indeed, in itself, the fact of corrections in the financial statements does not always indicate the bad faith of management. The presence of objective reasons for such corrections and their real consequences should be assessed on a case-by-case basis.

However, even if the statements are deemed unreliable, the court will have to establish whether the company's bankruptcy is in direct causal connection with the receipt of loans issued after the submission of such statements. At the same time, the former head can prove that he did not have a real opportunity to pass certification and continue selling tickets at that time.

One thing is quite certain: the Transaero case will undoubtedly become a landmark for Russian judicial practice. Before him, the satisfaction of many statements of subsidiary responsibility, on the basis of which the current practice was formed, was most often caused precisely by the passive position of the defendants that they were engaged in during the proceedings.

In this case, the court will have to decide who is to blame. It seems that the court will not be able to fully satisfy the requirements of both applicants - the contradiction behind this will be too obvious.

In a recent decision, the Russian Supreme Court reversed judicial practice on another significant bankruptcy issue. This happened after in 2018 an approach was reflected in court practice, in which people associated with the debtor were forced to prove the economic viability of transactions concluded with the debtor. If this could not be proved, their requirements were not included in the registry. This has generated a lot of court refusals to include in the register of affiliates. In the bankruptcy case of Anchor Development LLC, the Supreme Court of the Russian Federation acted contrary to previously established practice. The court included in the register the claims of shareholder Sergey Pleshkov on a loan issued to the company earlier, listening to the economic background and motives of the parties to the transaction.

This case once again proved that only a legal position on the case is not enough. To win, it is necessary to disclose the commercial and other economic prerequisites for the commission of certain actions of society.

Will the Transaero case become a similar precedent for the formation of a practice of subsidiary responsibility or will it strengthen the established practice that is unfavorable for controllers? It depends on the position of the defendants. We will closely monitor these processes: in any case, they will be a landmark for Russian law enforcement practice.