Annulment of Deliberations due to Fraud against Minority Shareholders
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Themes
Fraud, minority shareholders, capital reduction, capital increase, accordion squeeze, abuse of majority, social interest, nullity, Court of Cassation, Court of Appeal
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Abstract
The Court of Cassation upheld the Court of Appeal's decision to annul a capital reduction and subsequent increase due to fraud against minority shareholders, citing lack of social interest and deliberate exclusion.
Extract
[...] The deliberations of the extraordinary general meeting took place in fraud of the minority shareholders' law, notably in the absence of a social interest justifying the eviction. The Court of Cassation approved the Court of Appeal and, after having taken up each of the grounds retained by the Court of Appeal, the judge of cassation held that . ) the Court of Appeal could deduce that the deliberations of the extraordinary general meeting took place in fraud of the minority shareholders' law." Value : It'is a classic solution that illustrates the cases where a « coup d'accordéon » may bethree annulit is if it is tainted with fraud on the rights of minority shareholders. [...]
[...] An abuse of minority motivated by the judge Chapeau A. A fraud by way of accordion squeeze - Recall of the grounds of the appeals court in the body of the task (they are numerous and appreciate the facts and say just that it is delicate to measure which one weighs more in the balance and if the whole. Use here the beam of indices. - Insist on the deliberate exclusion of minority partners in favor of the majority partner(s) (link with the fact that this can result from any 'cunning and artifice': Cass. [...]
[...] Annulment of deliberations in view of fraud - The reduction of capital to zero followed by a capital increase may however be annulled if it is tainted with fraud against minority shareholders. - The solution is not new: fraudulent is "the capital increase aimed at reconstituting the company's own funds when it is decided in a hasty manner and is accompanied by an unjustified issue premium and conditions that make it impossible for minority shareholders to subscribe, such as a brief subscription period""Cass. [...]
[...] com May 1994, n° 91-21.364 ; Cass. com., 1er July 2008, n° 07-20.643). - Reminder of this ground of the expected:none of the produced elements establish that this eviction was justified by the social interest of the Clinique de la Ciotat ». - In this case: lack of justification of the procedure in view of the interest of the company (absence of funds brought to the company) whose exclusive objective is to benefit the majority shareholder or shareholders (strengthening of control power). [...]
[...] It should also be noted that the constituent elements of fraud are not precisely characterized. - Difficult to give the precise criteria for the validity of the accordion coup, the rulings that had so far ruled on fraud had in common that they dealt with cases in which the preferential right of subscription had not been suppressed, but which led to the same resultCass. com April 2013, n° 09-10.583 ; CA Paris, Pôle ch June 2012, n° 1104043). The fraud could then reside in the circumvention of the preferential right game. [...]
