Class and indirect claims.

A class action is a procedural demand addressed to the court by a member of a large group of persons, a competent state body, a legal entity or an individual authorized by law to make a court decision in a civil case in relation to a large group of persons.

The subject of a class action is: the subjective rights of participants in a large group of persons indicated by the person who applies with the above procedural requirement to the court, subjective rights of a homogeneous nature; obligations, legal relations constituting a substantive dispute between participants in a large group of persons and one or more defendants; or a substantive dispute between one or more plaintiffs and a large group of defendants.

The object of a class action in the sense of a specific benefit, the achievement of which is aimed at the claim of the person filing a class action in court, may be compensation for losses of group members, expressed in cash or in the form of other property, an injunction against the unlawful activities of the defendant, cancellation of the act of a state body authorities that do not comply with the law, etc.

The grounds for a class action are legal facts, with which a person filing a class action in court connects the substantive legal claims of a large group of persons against the defendant, his individual claims in relation to a large group of defendants, or legal relations that are the subject of a class action as a whole.

To a greater extent, a large group of persons in a civil proceeding in a property class action is a collection of people who often do not even know each other, but who have a connection with the plaintiff – a representative of the group or his lawyer, who is also a lawyer or representative of a large group of persons.

In some cases, members of a group of persons whose rights and legitimate interests are protected by a class action are not at all aware of the existence of each other. They are not connected in any way with the person who filed a class action in defense of their rights and legitimate interests. For example, a claim for the protection of an indefinite circle of persons or a derivative claim in defense of a joint-stock company and its shareholders owning voting shares of this joint-stock company.

The group of plaintiffs in the property class action is united by a common ground and subject of the claim, which is explained by the similarity of the grounds and subject of the claims of each member of the group separately and the presence of a common defendant or several defendants. Often, when certain types of property class claims are filed, this group of persons is uncertain at the time of filing a claim with the court, but can be determined later, at the stage of preparing the case for trial. With the indefinite nature of the group, it cannot be called a collective, and, consequently, a claim brought in defense of a large group of persons by any of its participants can be called a group, but not a collective.

Indirect claims are a fairly new way of private law protection of the rights of shareholders, members of limited liability companies (LLC) and the companies themselves. This type of claim in civil proceedings reflects the possibility of ensuring coercion by a limited liability company or a group of its shareholders, participants to a certain behavior of the company’s managers, thereby resolving conflicts between the owners of the company and its managers[24]

The name “indirect” or “derivative claim” reflects the nature of the interests protected in court. The peculiarity of the indirect claim lies in the fact that the plaintiffs (as a rule, this is not one plaintiff) protect their interests, but they do it not directly, but indirectly. The plaintiffs file a claim to protect the interests of a joint-stock company or a limited liability company that has suffered losses as a result of the actions of their managers. Ultimately, the shareholders and members of the company (JSC or LLC) also protect their own interests, since after compensation for losses, the market value of the shares of the joint-stock company may increase, and its assets may increase. In a claim for the protection of personal interests, the shareholder himself, a member of the company, is the direct beneficiary, for example, in payment of the amounts of losses incurred by him personally. In an indirect claim, the direct beneficiary is the joint-stock company in whose favor the award is collected. The benefit of the shareholders themselves here, as a rule, is indirect, since they personally do not receive anything, except for the reimbursement by the defendant of the legal costs incurred by them if they win the case.

The appearance of an indirect claim testifies to the transfer of the protection of the rights of owners of economic companies to the sphere of private law relations. The concept of an indirect claim originated from the practice of the English trust, that is, the trust management of another’s property. After all, the direct duties of the directors of a limited liability company, a joint-stock company, a corporation come from the principle of trust – the management of other people’s property, the funds of its owner-shareholders. Since the managers of the company manage other people’s property, they are assigned the so-called fiduciary responsibility, the managers of the companies must act most effectively in the interests of the corporation, and ultimately the shareholders, treating the performance of their duties with “due care”.

The indirect claims themselves arose due to the fact that, as the shares of the companies were “dispersed” among many shareholders, the figure of the sole owner of the corporation disappeared, management was concentrated in the hands of managers, who sometimes acted in their own interests, and not in the interests of the shareholders who hired them. . Such conflicts of interest have become the primary reason for the emergence of indirect claims as the only legal means of influencing certain groups of shareholders on company managers.

For the first time in the Russian Federation, the possibility of filing an indirect claim was provided for by the provisions of the Civil Code of the Russian Federation. So, in accordance with paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, a person who, by virtue of law or the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of the legal entity, unless otherwise provided by law or contract, to compensate for the losses caused by it to the legal entity.[25]

This provision is also formulated in Art. 105 of the Civil Code of the Russian Federation in relation to the relationship between the subsidiary and the parent company, when the participants (shareholders) of the subsidiary have the right to demand compensation from the parent company (partnership) for losses caused through its fault to the subsidiary, unless otherwise provided by laws on business companies[26]

A feature of the indirect claim is the nature of the claim of the applicants, since the losses must be caused specifically to the joint-stock company (or limited liability company). If the shareholders do not agree with a specific decision of the management bodies of the joint-stock company, but it has not yet caused damage to this company (for example, on the refusal to include any issue on the agenda of the meeting) or the losses have been caused to the shareholder himself, then such a claim can no longer be considered as indirect , because here the plaintiffs protect their own interests.

Thus, the analysis of the legislation makes it possible to single out the following main cases of application of a derivative claim:

1. The requirement of a participant of a legal entity to persons acting on behalf of the latter for compensation for losses caused to the legal entity.

2. The requirement of a participant of a legal entity to invalidate a transaction made by a manager on behalf of a legal entity.

3. Claim of a member of a subsidiary to the parent company for compensation for losses caused to the subsidiary.

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