Noerr LLP / Insolvency/Legal Matter 28.06.2010 09:02 Dissemination of a Corporate News, transmitted by DGAP - a company of EquityStory AG. The issuer / publisher is solely responsible for the content of this announcement. --------------------------------------------------------------------------- Members of the creditors' committee of an insolvent company are liable for inadequate supervision of the insolvency administrator in a manner similar to supervisory board members for inadequate supervision of the management board. This tendency in legal literature is confirmed by a judgement of the Oberlandesgericht (OLG) Celle of 3 June (Az.: 16 U 135/09). A Noerr team consisting of insolvency lawyers Dr. Christoph Schotte and Tim Jakobs and litigation lawyer Christian Stempfle acted in the case on behalf of the successful plaintiff, the insolvency administrator Manuel Sack. The team was supported by the insolvency lawyer Leif Engelbrecht of Brinkmann & Partner. The appeal concerned the question of whether the members of a creditors' committee must pay the insolvency estate damages because of defective supervision of the former criminal insolvency administrator who established a cash pooling system from various insolvency cases by which he misappropriated for his own purposes more than 40 million Euro from the insolvency estates administered by him. He also removed millions from the estate now administered by the plaintiff and was convicted of fraud. The criminal cash pooling system could only function because the creditors' committee of the insolvent company did not adequately supervise the actions of the administrator, in the opinion of the OLG Celle. Otherwise, it would have noticed the outflow of funds. The court therefore awarded the present insolvency administrator and plaintiff, Manuel Sack, who is well known as the insolvency administrator of the Heros Group, 5.3 million Euro in damages. Consent to an appeal on a point of law to the Federal Court of Justice was refused. The time for appealing against that refusal expires on 7 July 2010. The judgement has the following significance. Apart from claims against members of the creditors' committee in other insolvency proceedings affected, claims against the banks which conducted the accounts of the criminal administrator have been commenced. 'Members of creditors' committees should therefore in future carefully consider their precise obligations and whether they are prepared to undertake the associated risks of liability' advised the Noerr insolvency law experts. Another possibility is that members of creditors' committees can, according to law, delegate auditing of accounts to experts. Insolvency administrator Sack hopes that 'The judgement is an important step for our profession, so that the supporting and supervisory role of the creditors' committee will in future be exercised with the professionality intended by the legislature'. Dr. Michael Neumann, MBA Noerr LLP Brienner Str. 28 80333 Muenchen / Germany T +49 89 28 628 226 M +49 171 1251428 michael.neumann@noerr.com 28.06.2010 09:02 Ad hoc announcement, Financial News and Media Release distributed by DGAP. Medienarchiv at |[![CDATA[|[a href="http://www.dgap-medientreff.de"|]www.dgap-medientreff.de|[/a|]]]|] and |[![CDATA[|[a href="http://www.dgap.de"|]www.dgap.de|[/a|]]]|] ---------------------------------------------------------------------------
DGAP-News: Noerr LLP: OLG Celle judgement - creditors' committee is liable for inadequate supervision of the insolvency administrator
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