Insufficiency of assets action
Defence of the director against an action seeking to order them to bear all or part of the insufficiency of assets on the basis of mismanagement that contributed to it.
→ Restructuring · Sub-expertise
Where insolvency proceedings reveal substantial liabilities, the director may be subject to liability actions: insufficiency of assets, personal bankruptcy, fraudulent bankruptcy (banqueroute). We defend directors by highlighting the diligence performed, the propriety of their management and the absence of any established mismanagement.
→ What we cover
Defence of the director against an action seeking to order them to bear all or part of the insufficiency of assets on the basis of mismanagement that contributed to it.
Defence against requests for a management ban or personal bankruptcy, which deprive the director of the right to manage a business for a fixed period.
Criminal defence where the director is accused of fraudulent bankruptcy (misappropriation of assets, fictitious accounting, fraudulent increase of liabilities) or other offences related to the procedure.
Defence against a request to extend the procedure to the director in the event of commingling of assets or fictitiousness of the legal entity.
Argumentation on the absence of mismanagement or on the unrelatedness of the fault to the causes of the insufficiency, and on the proportionality of the order sought.
Upstream, advice on best practices to avoid liability actions: documentation of decisions, compliance with accounting obligations, anticipation of difficulties.
→ Our approach
01
Examination of the grievances alleged against the director, analysis of the chronology of the procedure, identification of the factual and legal defence arguments.
02
Development of the arguments: propriety of the management, diligence performed, absence of established fault, contestable causal link, proportionality.
03
Submissions before the court, oral argument, management of any judicial expert assessments, appeal where applicable.
04
Implementation of the decision, negotiation of any settlements, personal and asset-related support for the director after the procedure.
→ Who we help
Defence of a director sued after the closure of the liquidation for mismanagement: demonstration of the propriety of their management and of the unrelatedness of the alleged faults to the causes of the insufficiency.
Defence against a management ban request based on the delay in declaring the suspension of payments: justification of the context and of the diligence undertaken.
Criminal defence of a director accused of fraudulent bankruptcy: demonstrating the absence of intent, contesting the materiality of the facts, negotiating a plea bargain (CRPC) where appropriate.
Opposition to a request to extend the procedure to the director personally for commingling of assets: demonstration of the effective autonomy of the legal entity.
→ Q&A
An action brought by the creditors' representative in the event of judicial liquidation, seeking to order the director to bear all or part of the liabilities where their mismanagement contributed to the insufficiency of assets. The order may reach the entirety of the liabilities.
Any act or omission in the management of the company that departs from the standards of a prudent and diligent director: culpable delay in declaring the suspension of payments, continuation of a loss-making activity in one's personal interest, excessive withdrawals, failure to keep accounts.
Rigorously document corporate decisions, keep proper accounts, declare the suspension of payments within the deadlines, anticipate difficulties through the ad hoc mandate or conciliation, and avoid favouring one's personal interests to the detriment of the company.
A management ban prohibits the management of a business for a fixed period. Personal bankruptcy is broader: it entails a management ban but also civil and political incapacities. Both sanctions may last up to 15 years depending on the seriousness of the facts.
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