DGAP-News: Noerr LLP: OLG Celle judgement - creditors' committee is liable for inadequate supervision of the insolvency administrator

Noerr LLP / Insolvency/Legal Matter

28.06.2010 09:02 

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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




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