As we already reported in the article RKKW Client obtained four injunctive relief orders in disputes under the Act on Public Offering – IR Global, RKKW Client – the parent company of an international capital group – has obtained four freezing orders in a multi-threaded dispute concerning the Act on Public Offering with respect to the so-called acting in concert, i.e. acting in a legally relevant agreement within the meaning of the said Act. These orders are now final and all complaints have been dismissed.
As part of the aforementioned publication, we also described how, prior to the sanction of loss of voting rights, persons subject to the sanction attempted to “escape” by transferring shares to substituted entities dependent on them, despite the fact that the disposal of the deprived shares only to an entity independent of the transferor “erases” the sanction. These actions proved to be ineffective and, for the time being, the shares have reverted to the original owners.
However, the persons removed from the client’s Board of Directors remained disclosed in the company’s Register for another 14 months (sic) after their removal on 22.04.2021., i.e., until 22.06.2022., and the Financial Supervisory Commission Office respected this state of affairs, considering the entry in the Register rather than the resolutions to be binding on it.
How can the registration proceedings take 14 months? The Registry Court took the very conservative view that the mere challenging of the resolutions on changes in the bodies that formed the basis for the disclosure of the changes in the Register should automatically result in the suspension of the registration proceedings concerning their disclosure, even if the action brought was of very questionable ‘quality’ and the Regional Court in Warsaw refused to secure it. No other argument was made in the case for the need to suspend the proceedings.
What did this mean in practice? Suspension of proceedings for an unspecified period of time (and in practice many years), while maintaining the disclosure in the Register of data inconsistent with the actual state of affairs caused complications and measurable damage to the Client on a daily basis – although it is clear to every lawyer that the entry of management board members in the Register is of declaratory nature only and not of constitutive nature, the Client’s Management Board had to repeatedly face the necessity of explaining the nature of the entry of management board members in the Company’s Register as well as refuting the possible good faith of third parties.
Ultimately, as a result of the activities of the RKKW Team, it was possible to convince the Registry Court that maintaining an entry that is blatantly contrary to the actual state of affairs (here it is worth mentioning that the Regional Court in Warsaw consistently recognised the Management Board appointed on 22.04.2021) could lead to irreversible legal consequences for the Client. As a result of this, the Registration Court resumed the suspended proceedings due to the new circumstances of the case and made an entry.
The RKKW team led by RKKW Partner Dariusz Kulgawczuk and Senior Associate Dagmara Błaszkiewicz with invaluable support from RKKW Managing Partner Karol Szymański, Associate Aleksandra Ługowska and Junior Associate Marlena Grzesiuk-Gałązka.