Realization of the right to receive information about the activities of the company

The right to receive information about the activities of the company. Arbitrage practice.

In accordance with paragraph 2 of Art. 50 of the Federal Law “On LLC”, the list of documents to which the LLC is obliged to provide the participant with access is open. It turns out that a participant can demand any document provided for by the Federal Law and other legal acts of the Russian Federation, the charter or internal document of the company, as well as decisions of the general meeting of participants, the board of directors (supervisory board) or its executive bodies.

However, in some cases, a participant may be refused to provide him with documents and, in general, exercise his right to receive information about the activities of the LLC. One of such cases was considered by the Arbitration Court.

Case plot:

Bosova K.E. is a member of Alltek LLC with a 43% stake in the authorized capital of the company. On November 24, 2020, Bosova turned to LLC with a request to provide information about the activities of the company, as well as about its subsidiaries and affiliates, which she was denied.

As a result, the person applied to the court with a request to be obliged to provide her with information and supporting documents, namely:

1) Information on the participation of the company in Russian and foreign legal entities, indicating its share / block of shares in the authorized capital of legal entities,
2) Information on the activities and main assets of each subsidiary / dependent company,
3) Confirm the availability of management reporting and financial business model for each of the companies,
4) Information on the presence of significant long-term financial investments, non-core/non-operating assets, unprofitable businesses on the balance sheets of subsidiaries / affiliates, indicating such investments, assets and losses.

Judicial act: Resolution of the Arbitration Court of the Moscow District dated November 16, 2021 in case No. А40-240880/2020

Court's findings:

1. The participants of the company have the right to receive information about the activities of the company and get acquainted with its accounting books and other documentation in accordance with the procedure established by its charter.

2. The claims of the lower courts were dismissed due to the fact that on 02/08/2021 the plaintiff lost his ownership of a 43% share in Alltek LLC on the basis of a court decision of 11/25/2020 that entered into force.

3. Since the plaintiff was not a member of Alltek LLC at the time of consideration of the present case, he did not have the right to receive information about the activities of the company.

4. The applicant's argument that at the time of sending the request to the company, as well as the date of filing the claim, the status of the participant Bosova E.K. the plaintiff was not lost, insolvent: since the plaintiff was not a member of the company as of the time of consideration of this dispute and the adoption of a decision, his claims were not subject to satisfaction.

5. The applicant's references to the existence of the right to claim due to the fact that the plaintiff owns the right to claim the company for payment of the actual value of the share were rejected, since these arguments were not the subject and basis of the stated claim, were not considered by lower courts, while the court decision the first instance was accepted, according to the explanations of the applicant himself, until the claimant has the right to receive the actual value of the share.

Comment:

1. The court stated that the right to demand in court documents on the activities of the company belongs to the participant of the corporation, who exercises it on his own behalf in defense of his own corporate rights and, therefore, it is inextricably linked with the status of a particular person as a participant in the company. In this case, it was refused due to the fact that the applicant is no longer a member of the LLC.

2. However, it should be borne in mind that the requirements can be satisfied in this case, but only if a claim is filed by a person to whom the LLC is obliged to pay the actual value of the share acquired by the company in its authorized capital - in this case, the applicant has the right to demand information on the activities of the company related, respectively, to the determination of the actual value of the share to be paid by the company, or to the determination of the price of repurchased shares.

3. It is also worth noting that the presence of a corporate conflict/disputing the status of an LLC participant does not in itself relieve the company from the obligation to provide information at the request of such a participant, unless this participant is excluded from the LLC.

Please note that in 2020 the law firm Vetrov & Partners was marked by the industry rating of law firms Pravo.ru-300 in the nominations Arbitration Proceedings, Dispute Resolution in Courts of General Jurisdiction and is one of the regional companies throughout Russia in these nominations.

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