Restructuring & Turnaround

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Maintains a strong reputation on the debtor side, but also has expertise in acting for a wide range of other clients, including creditors and government entities, and for organisations post-bankruptcy. Extremely focused on the objective and trying to find a solution that is perfect for our situation
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Nctm has extensive experience in bankruptcy and insolvency law in general, as well as in debt restructuring procedures, distressed investments and the so-called “special opportunities”.

Nctm assists banks, institutional investors, Italian companies and multi-national corporations in all corporate crisis phases and subsequent insolvency proceedings, as well as all tax-related issues and litigation concerning administrative proceedings.

Nctm’s activities in this field include:

  • assistance in the development of turnaround projects
  • identification of the most appropriate tools in the circumstances
  • assistance during the preparation and negotiation of reorganisation plans, debt restructuring agreements, pre-emption and bankruptcy agreements, extraordinary administrative proceedings
  • assistance in the acquisition of companies, assets and credits
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31/05/2017
Restructuring & Turnaround

The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank  accountable to individual creditors

The case
The bankruptcy receiver of a company claimed damages against the company’s directors and some banks based on their joint liability for the formers’ reckless resort to credit lines at a time when the company was insolvent, with respect to the ensuing increase in the indebtedness of the company.
The Court of Monza ruled that the receiver was not entitled to claim damages against the bank on these grounds and rejected also the claim against the directors.
The Court of Appeals of Milan confirmed the decision, arguing that the claim against the banks was not pertaining to the bankruptcy estate, but rather to individual creditors. The Court noted in particular that banks cannot simultaneously be creditors and liable for damages as a consequence of loans made in favour of the company.

The issue
The case law of the Court of Cassation is steady in ruling (since the decision of the Joint Chambers of 28 March 2006, No. 7029) that the bank can be held liable towards individual creditors, on the grounds that continuing to finance a company, being aware that it is insolvent, can deceive the suppliers of the company inducing them to rely on an apparent solvency and thus to continue their trade relationship. According to the Supreme Court, this is an action (so-called “abusive granting of credit”) that is based on each individual creditor position and, therefore, does not pertain to the company, nor is the receiver entitled to bring it in the interest of the generality of creditors.
Art. 218 IBL provides for a criminal offense by directors who continued to resort to credit, concealing the state of insolvency of the company (so-called “abusive resort to credit”). The issue is therefore whether the bank could be jointly liable with the directors for the correspondent claim in tort for damages.

The decision of the Court
The Court of Cassation confirms a previous decision of 1 June 2010, No. 13413 and distinguishes the different grounds regarding abusive granting of credit and abusive resort to credit: the former is a fault by the bank to the detriment of individual creditors, whereas the latter is a fault by the directors to the detriment of the company, of which the bank could be held jointly liable based on general principles of the law of tort.
The Court of Cassation reversed the decisions of the local Court and of the Court of Appeals, which wrongly qualified the action brought by the receiver as based on abusive granting of credit instead of abusive resort to credit.
Damages shall be calculated based on criteria which are well defined in the case law of the Court of Cassation with respect to claims against directors, i.e. on the basis of a precise causal link or, when this is not possible, also according to equitable criteria including that of the decrease of the net assets value of the company considering the time of the offence and the time of the declaration of bankruptcy.

Commentary
Bankruptcy receivers’ chances to recover damages from banks seem to be significantly increased based on the grounds now reaffirmed by the Court of Cassation. As it is well known, until the IBL was amended in 2005, receivers very often resorted to claw-black actions against banks in order to recover assets for the benefit of creditors. Faced with the wide limitations and exemptions now in place with respect to this traditional tool available to them, receivers now tend to resort instead to other actions such as that based on abusive direction and coordination by a holding companies or individuals.
The action for joint liability of the bank with the directors for abusive resort to credit can be brought by the receiver, acting on behalf of the company and not of the creditors, thus staying clear of limitations regarding the action for abusive granting of credit.
In order to correctly file this action, the receiver needs to precisely indicate the relevant grounds at the outset, because shifting from one action to the other is not allowed during the proceeding (this was indeed the case considered by the above-mentioned decision of the Supreme Court No. 13413 of 2010). Evidence of the grounds for the action can be found in a criminal judgment convicting the directors and the bank’s officer for the corresponding bankruptcy crime (as it was in the case of the decision commented here), otherwise the receiver shall meet its own burden of proof according to general procedural rules.

 

 

The contents of this article is meant for informative purposes only and cannot be considered as professional advice.

For further information please contact Fabio Marelli, fabio.marelli@nctm.it

To receive our restructuring newsletter, write to: restructuring@nctm.it

31/05/2017
Restructuring & Turnaround

The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors

The case
A company filed a concordato preventivo proposal, based also on the commitment by a third party to assume certain obligations. The proposal was approved by the required majority of creditors.
An opposition to confirmation was filed by the Tax Agency, but that was later withdrawn.
The Court therefore confirmed the proposal, making however material amendments to its terms by providing a higher amount for the obligation of the third party and the payment to unsecured creditors of 25% share of their receivables instead of a 20% share.
The company appealed the order before the Court of Appeals, but that was rejected as not admissible.

The issues
Upon confirmation, in the absence of oppositions, the Court is limited to check on the legal terms of the proposal and of the procedure, and is barred from any evaluation on the merits of the proposal approved by the creditors.
According to Art. 180 IBL, the order of the Court confirming the proposal in the absence of oppositions cannot be appealed.
The issue is therefore whether the Court can introduce amendments to the proposal with a view to confirmation and what is the remedy available to challenge the order when the Court has gone beyond its own powers.

The decision of the Court
The Court of Cassation upheld the appeal, considering that the Bankruptcy Court did not have the authority to amend the terms of the proposal of the debtor approved by the creditors and that was not a case of a mere error (as it was suggested by the Court of Appeals) which could be simply corrected by the Bankruptcy Court itself.
The Court of Cassation then ruled that the remedy available is the appeal of the order to the Court of Appeals according to Art. 183 IBL, based on the violation of law by the Bankruptcy Court: the limitation to appeal, indeed, is based on the assumption that the Court did actually make a check limited check on the legal terms of the proposal and of the procedure as provided by law, in the absence of oppositions to confirmation.
The Court of Cassation recalls a precedent (decision No. 1237/2013) by which it had ruled that the remedy is instead the appeal of the order directly to the Court of Cassation based on Art. 111 of the Italian Constitution, which is available against any final decision on matters of rights of the parties which cannot be otherwise appealed.

Commentary
The decision of the Court of Cassation according to which the Bankruptcy Court is not entitled to amend the proposal approved by the majority of creditors does not raise any uncertainty or concern, considered that the matter considered is not a case of mere orders regarding the modalities of implementation of the proposal, which the Court can include in the confirmation order according to the provision of Art. 185 IBL.
From the decision it seems that the amendments introduced by the Bankruptcy Court were not necessary in order to make the proposal compliant with mandatory provisions of law, failing which the Court should have denied confirmation. Only in this case, indeed, one could argue that the Bankruptcy Court can fix a legal problem with the proposal of the debtor, which can no longer be amended once the procedure is at the confirmation stage, and the amendment is in the interest of the debtor and of the creditors.
Also in this case, anyway, the remedy of the appeal to the Court of Appeals should be allowed, based on the fact that the Court changed the proposal which was made by the company and approved by the creditors.
As to the remedy to be allowed, the decision is to be shared whereby it excludes that the appeal should instead be made directly to the Court of Cassation. This because the legal rule excluding the appeal to the Court of Appeals is based on the assumption that the Bankruptcy Court did only acknowledge that the required majorities were reached and that the procedure did correctly unfold, which is not the case when the Court instead amends the terms of the proposal.

 

 

 

The contents of this article is meant for informative purposes only and cannot be considered as professional advice.

For further information please contact Fabio Marelli, fabio.marelli@nctm.it

To receive our restructuring newsletter, write to: restructuring@nctm.it

31/05/2017
Restructuring & Turnaround

By a decree of the Italian Ministry of Economic Development (MISE) on 2 May 2017 the extraordinary administration procedure set forth by legislative decree No. 347/2003 (“Legge Marzano”) was started for Alitalia Società Aerea Italiana S.p.A., which has also been declared insolvent by the Court of Civitavecchia on 11 May 2017

Two extraordinary administration procedures for Alitalia
While the extraordinary administration procedure started in 2008 for Alitalia Linee Aeree Italiane S.p.A. and other companies of the group (inter alia Alitalia Airport S.p.A., Alitalia Servizi S.p.A. and Alitalia Express S.p.A.) is still pending before the Court of Rome, a new extraordinary administration procedure has now been started before the Court of Civitavecchia for a different company (Alitalia Società Aerea Italiana S.p.A., hereafter “Alitalia SAI”) which purchased the business within the procedure of Alitalia Linee Aeree Italiane S.p.A. and became itself insolvent.

A quick overview on the extraordinary administration procedure
Extraordinary administration is an insolvency procedure aiming to the preservation of the going concern of large insolvent companies: for these reasons it is different from bankruptcy liquidation (it should be noted that, if the extraordinary administration procedure’s aims cannot be attained, it can be converted into bankruptcy).
Extraordinary administration consists of two different phases (i) the proof of debt and payment of creditors, which is entrusted to the Court following rules very close to those applicable in bankruptcy and (ii) the continued operation and the restructuring of the business, entrusted to the Commissioners appointed and directed by the MISE.
During the procedure the Commissioners will prepare the special reorganization business plan set forth by Art. 27, second para., lett. a, b and b-bis of Legge Marzano, providing alternatively for (a) the sale of the assets or (b) a financial and economic reorganization of the Company or (b-bis) the sale of assets and contracts on the basis of a business plan providing for continued operation of the business for no more than one year (this applies only to companies – such as Alitalia SAI ­– active in the essential public services sector).
The extraordinary administration procedure is governed by legislative decree No. 270/1999 (so-called “Prodi-bis”) and by Legge Marzano which provides for certain special provisions applicable to the “special” extraordinary administration procedure, to which only largest companies are eligible, such as Alitalia SAI.

Alitalia SAI’s extraordinary administration procedure
The MISE appointed a panel of Commissioners: Luigi Gubitosi, Enrico Laghi and Stefano Paleari.
The Court of Civitavecchia appointed Luigi Bianchi as the Judge in charge of the procedure.
With a further decree on 12 May 2017, the MISE joined Alitalia Cityliner S.p.A. into the Alitalia SAI’s extraordinary administration procedure.
With law decree No. 55 of 2 May 2017, the Italian Republic granted a six month – 600 million euro bridge loan to Alitalia SAI in order to support the continued operations of the business. The loan enjoys a super-priority ranking senior to all other super-priority creditors.
The same law decree provides that the Commissioners publish a solicitation for non-binding offers for the purposes of the plan to be prepared by the Commissioners.
The first hearing to review proof of debt filings by creditors is scheduled for 17 October 2017, with a deadline of 120 days from the publication of the declaration of insolvency by the Court (falling then on 8 September 2017) for the filing of proofs of debt with respect to receivables as of 2 May 2017.
Filings shall be made to the certified e-mail address which will be indicated by the Commissioners.

Effects of the procedure for suppliers
As a consequence of the operation of the business by Alitalia SAI led the Commissioners, contracts with suppliers will continue to be regularly performed and all receivables for supplies made after 2 May 2017 will enjoy super-priority status.
Payment of receivables of key suppliers arising from supplies made before 2 May 2017 can be authorized by the Judge, if he finds that the payment prevents a material prejudice to the company’s business or to the value of the company’s estate.
Reciprocal claims existing as of 2 May 2017 can be set-off between individual suppliers and Alitalia SAI.
According to Art. 50 of the Prodi-bis, the Commissioners are entitled to terminate contracts, should they consider their performance as not useful for the purposes of the procedure.

 

 

The contents of this article is meant for informative purposes only and cannot be considered as professional advice.

For further information please contact Fabio Marelli, fabio.marelli@nctm.it

To receive our restructuring newsletter, write to: restructuring@nctm.it

30/03/2017
Restructuring & Turnaround

A ruling of the Court of Padua of 31 December 2016 is compared with few other known Court decisions regarding the extension of the effects of a debt restructuring agreement to dissenting financial creditors

The case
Two companies having an indebtedness mainly towards banks and leasing companies, jointly submitted to the Court a request for confirmation of a debt restructuring agreement providing for a two-year moratorium of payment of principal and a restructuring of interests.

The debtors also requested the Court to cram down a dissenting bank, while certain ad hoc agreements were concluded with other dissenting banks, rescheduling the relevant debt.

The issues
Article 182-septies IBL provides that the effects of a debt restructuring agreement, concluded with other creditors belonging to the same class and representing the 75% of the value of the class, can be extended to dissenting financial creditors if, inter alia, under the terms of the agreement they are paid no less than they would receive according to «feasible alternatives» and the debtor’s indebtedness is mainly towards banks and other financial creditors.

A few issues remain unsettled, including (i) whether there is a need to include all creditors in classes, (ii) what is the test to cram down dissenting creditors, (iii) whether separate agreements can be concluded with some of the dissenting creditors, not being considered as part of the agreement which is subject to Court confirmation and cram down.

The decision of the Court
The Court of Padua confirmed the agreement and crammed down the dissenting bank, considering that it would be paid under the agreement no less than following insolvency liquidation of the real estate assets of the debtors, and that the latter was the alternative to be considered.

In the specific case there was not an issue regarding how the class was formed, given that the creditors concerned were all unsecured and the treatment was the same, although the Court elsewhere in its reasoning mentions that separate agreements were concluded with other dissenting banks.

Commentary
After almost two years from the introduction of Article 182-septies IBL , in June 2015, case law so far highlighted just a few decisions by the Courts:

  1. a decision by the Court of Milan on 16 February 2016; in this case, financial creditors were divided in three classes, but apparently only two of those were relevant for cram down purposes;
  2. a decision by the Court of Forlì on 5 May 2016, ruling that the class including secured creditors was not correctly formed by reason of the fact that only collateral on debtor’s assets was considered, but not personal guarantees by third parties. The Court, nevertheless, confirmed the agreement and crammed down the dissenting bank, reshaping the classes by creating a third one (which was not formed by the debtor), thus being able to conclude that the legal requirements for confirmation were met.

With respect to assessing whether the agreement is convenient for dissenting creditors, both these decisions are in line with that of the Court of Padua, as they deem that the «alternative» to be considered is the bankruptcy liquidation scenario.

As to the need to form classes including all creditors, both decisions show that this was indeed what the debtors had done, although the dissenting banks to be crammed down were included only in some of the classes. In this respect, it should be pointed out there is actually no need to classify all creditors – as it is instead the case in concordato preventivo – pointing out that (i) the law considers a class exclusively in relation to the 75% majority of the creditors belonging to the same class as the bank to be crammed down, and (ii) it is undisputed that the debt restructuring agreement can provide a different treatment for each creditor who has agreed to that. In a case in which our firm was involved, indeed, the Court of Vicenza confirmed an agreement in which classes were limited to banks having the same position and interests as the banks to be crammed down (another feature of the agreement was also the express provision that further banks could enter into the agreement later, before it was confirmed).

The case decided by the Court of Padua highlights that the debtor can conclude ad hoc agreements with some dissenting creditors, but he may choose not to consider these as part of the debt restructuring agreement for the purposes of confirmation. It is uncertain whether these creditors can be deemed as dissenting or parties to the agreement, if one considers that the debtor can certainly conclude a series of separate agreements with creditors and then put them together as a debt restructuring agreement for the purposes of confirmation. There seems to be a limitation to this, only in the event that such a selective approach can alter the conditions required by law for confirmation or cram down purposes.

 

 

The contents of this article is meant for informative purposes only and cannot be considered as professional advice.

For further information please contact Fabio Marelli, fabio.marelli@nctm.it

 

30/03/2017
Restructuring & Turnaround

The Court of Florence (November 2, 2016) confirmed that the debtor can retain part of his assets, with a view to support the company’s recovery and in derogation to principles of liability of the debtor.

The case
A company applied for concordato preventivo, based on a plan providing for, on one side, the sale of those assets not functional to the business and, on the other side, the company to continue to trade retaining those other assets which were needed for the activities to be carried on.
A creditor opposed to confirmation of the concordato proposal, arguing that the creditors were not assigned all of the earnings generated from continued operations.

The issue
In the most common form of concordato preventivo, based on the «assignment of assets to creditors» scheme, the entire estate of the debtor is liquidated for the benefit of the creditors. However, the concordato preventivo scheme providing for the debtor to continue to trade (as considered by art. 186-bis IBL) does not provide for the liquidation of assets, which are retained by the debtor in order to generate the cash flows to be then paid out to the creditors according to the proposal.

The decision of the Court
First of all, the Court of Florence recalled the case law excluding that the debtor can retain part of the assets – with reference to concordato preventivo based on the «assignment of assets to creditors» scheme and in relation to the principle of liability of the debtor set forth in art. 2740 ICC – which noted that the debtor can choose the alternative scheme provided by art. 186-bis IBL, expressly allowing the debtor (who planned to continue to trade) to liquidate some of his assets which are not functional to the plan: therefore, according to this scheme, the debtor is not required to liquidate all of its assets, but it can retain those which are necessary to carry on his business activities.

As to the specific issue, whether all future earnings generated from continued operations, the Court noted that the concordato preventivo scheme providing for the debtor to continue to trade is structurally and functionally different from that based on the «assignment of assets to creditors» and it is an alternative to the liquidation of the entire estate of the debtor: the purpose of the law is to allow the turnaround and preservation of the business and this also allows the principle of financial liability provided by art. 2740 ICC to be derogated, so that the debtor can retain part of its own future earnings in order to ensure a sufficient capitalization of the company and prevent future distress.

The debtor is required to guarantee that creditors be paid under the concordato proposal an amount which is more than they would get in a liquidation of assets (pursuant to either concordato or bankruptcy), which is the alternative to the scheme proposed by the debtor who wishes to continue to trade. The benchmark in this respect should refer to what is practically feasible and not to all which may happen in theory, as this would require an effort incompatible with the close timing imposed by the state of distress of the debtor.

The Court of Florence rejected the opposition of the creditor and, having noted that the proposal satisfied the best interest of creditors’ test with respect to an alternative liquidation, confirmed the concordato preventivo proposal of the debtor.

Commentary
The decision of the Court is remarkable for the emphasis placed on the principle of liability of the debtor set forth by art. 2740 ICC, without prejudice to the best interest of creditors in comparison to an alternative liquidation: concordato preventivo is a means of implementing that principle, but this must be considered with reference only to the liquidation value of the estate.

Broadening the perspective, as noted by a prominent scholar (Fabiani, “La residualità del dogma della responsabilità patrimoniale e la de-concorsualizzazione del concordato preventivo“), if one considers the insolvency principles applied to a debtor continuing to trade, the meaning of the principle of liability of the debtor must be reconsidered. According to this analysis, which is to be fully shared, the bottom line is represented by the value of the assets in the alternative liquidation, and the resources generated from continued operation of the business can be allocated among creditors according to criteria that need not to strictly abide to the absolute priority rule and the par condicio creditorum principle, and can also accrue to the benefit of the debtor, provided that this will instead abide to the best interest of creditors test: the new rules entitling creditors to put forth their own concordato proposal allows them to challenge the debtor’s proposal and this makes the surplus available to be contended for and freely allocated.

Accordingly, case law and interpretations which still abide to a strict meaning of the principle set forth by art. 2740 ICC deserve to be reconsidered. An example is a recent decision of the Court of Milan rendered on 15 December 2016, ruling that «a concordato proposal based on a plan providing for continued operation of the business may not cause the principle of liability of the debtor to faint» and it is not «allowed to cancel the absolute priority rule (art. 2741 ICC), which follows from the principle of liability of the debtor, a rule which can be departed from only as a consequence of the actual liquidation of the estate following a forced sale».

 

 

The contents of this article is meant for informative purposes only and cannot be considered as professional advice.

For further information please contact Fabio Marelli, fabio.marelli@nctm.it

Italian port law prohibits a terminal operator from managing multiple areas for the performance of the same activities in one single port. We will first analyse how this prohibition could be amended following the recent 2016 reform.

Then we will look at a recent ruling of the Regional Administrative Court of Tuscany which clarified the obligations imposed on the Public Administration in the event of an expropriation of private areas in Italian ports.

The recent extension of the scope of the General Block Exemption Regulation (2014) to the granting of State aid to EU ports and airports reminds us of two recent judgments of the Court of Justice on State aid in the maritime sector and – in particular – the compensation of public service obligations to undertakings entrusted with the operation of services of general economic interest.

Next, we analyse two judgments from the United Kingdom and Spain concerning the application of two major international conventions in the field of international transport, the Hague-Visby Rules and CMR. The English verdict confirms that the failure to issue a bill of lading is not relevant in excluding the applicability of uniform legislation, whereas the Spanish ruling provides us with a definition of “default equivalent to wilful misconduct” for the purpose of excluding the limitation of carrier’s liability.

Moreover, the Italian Court of Cassation has issued two interesting decisions on transport matters. The Italian Supreme Court denied the holder of the bill of lading the right to act against a carrier for damage to the goods due to the lack of endorsement of the bill of lading by the receiver to the order of the holder, and considered an “exchange of containers” as a case of gross negligence of a road carrier.

Finally, let us analyse a decision of the Tax Court of Rome on IRESA, the noise emission tax in Italian airports. This ruling, in view of the fact that the Lazio Region disregarded the principles and aims set out in the national and European regulations concerning the use of the tax revenue, concluded for the disapplication of the IRESA as provided by the current regional legislation.

Alberto Rossi

There’s a fair European wind blowing

Probably the most important outcome of the French election is not so much the actual electoral defeat of the National Front but the decision of that party to remove from its policy programme the idea of withdrawing from the Euro and promoting a referendum on Frexit. In other words, those parties which have based their political offer to the electorate on the negative impact of globalization and the hard impact of immigration, no longer see the solution as the break-up of the EU.

The same in happening in the Netherlands and even in the UK where the May government is promoting the need to address the negative aspects of globalization and migration in a substantive manner and not long saying that Brexit itself is the answer.

This is a window of opportunity that the EU must embrace. The underlying issues of migration and globalization must be addressed. But if they are addressed in a satisfactory manner the EU itself is not being challenged. There is a recognition in France and in the Netherlands, and even in Germany given the results in the recent Lander elections among the vast majority of the electorate that the EU remains a valid project and that the solutions are best found within its remit.

If Macron and Merkel can get together with the Italy and Spain, much can be done. From an insider’s point of view the only possible hiccup in catching this favourable wind is the capacity of the Commission to recognize it.

 

Alitalia insolvency: second round
By a decree of the Italian Ministry of Economic Development (MISE) on 2 May 2017 the extraordinary administration procedure set forth by legislative decree No. 347/2003 (“Legge Marzano”) was started for Alitalia Società Aerea Italiana S.p.A., which has also been declared insolvent by the Court of Civitavecchia on 11 May 2017.

Can the Court amend the concordato preventivo proposal upon confirmation?
The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors.

Is the bank liable for damages suffered by the insolvent company following directors’ reckless resort to credit lines ?
The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank  accountable to individual creditors.

Grounds for ineligibility or forfeiture of statutory auditors who are members of an association of professionals
Pursuant to Article 2399, letter c), of the Italian Civil Code, statutory auditors whose patrimonial relationships with the company or its subsidiaries may affect their independence cannot be appointed and, if appointed, cease from their office. It has been questioned whether the case whereby a statutory auditor is a member of an association of professionals providing consultancy services to the same company reflects the case provided for by the law. Although the answer to the question was generally affirmative, doubts still remain as to the criteria adopted by the Supreme Court in order to determine the cases in which the independence of a statutory auditor can be actually considered as compromised.

The scope of the delegation of management in limited liability companies (s.r.l.): content and limits
By decision no. 25085 of 7 December 2016, the Supreme Court established the legitimacy of a general delegation of management, by the board of directors to individual managing directors with the power to act separately, to the extent that it is not aimed at excluding the exercise of a concurrent managing power by the managing body.

Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on personal data processing for marketing purposes, finding the unlawfulness of both the processing of data collected through forms available on websites and the processing of data (namely, telephone numbers) autonomously collected on the Web.

Administrative liability of entities under Legislative Decree No. 231/2001 within groups of companies
Liability can be found, under Legislative Decree No. 31 of 2001, on the part of a holding company for offences committed in connection with the activities of its subsidiaries, provided that a) the person acting on behalf of the holding company acts in concert with the person committing the offence on behalf of the controlled entity; and b) the holding company appears to have obtained a concrete advantage from, or pursued an actual interest by way of, the offence committed in the context of the subsidiary’s activity.

The liability of non-executive directors and the duty to act in an informed way
According to decision no. 17441, of 31 August 2016, of the First Division of the Supreme Civil Court, the liability of directors without management power cannot originate from a general failure to supervise – that would be identified in the facts as a strict liability – but must be attributed to the breach of the duty to act in an informed way, on the basis of both information to be released by executive directors and information that non-executive directors can gather on their own initiative. Therefore, the determination of the prerequisites for the liability of delegating directors fits in a context accentuating the distinction between the duties imposed on managing directors and those typical of non-executive directors.

Considerations regarding the possibility to waive the termination effect of a notice to perform
Judgment No. 4205 of 3 March 2016 of the Supreme Court, Second Division, gives us the opportunity to provide a brief overview of the different opinions expressed by courts and legal commentators regarding the possibility to waive the termination effect of a notice to perform.

Validity of the shareolders’ agreements which provide a preventive waiver of the liability action against the directors when taken at the conclusion of the mandate
With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.

The Supreme Court’s overruling: the banking and finance agreement signed exclusively by the client is null and void
The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.

Purchase of shares of a general partnership: can the mistake on the value of the share be legitimately qualified as an essential mistake?
The Tribunal of Milan has stated that, as a rule – also with reference to the purchase of shares of a general partnership – the contract can be avoided, upon application of a party, for an essential mistake, only if the contract contains an explicit guarantee on the value of the assets and on the quality of the goods of the company (a guarantee that, according to the Tribunal, the contract at hand lacked).

The new rules regarding the proceedings before the Supreme Court (Decree Law n. 168/2016, converted into Law n. 197/2016)
With another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).

The joined chambers of the court of cassation on the qualification and challenge of the non-final award and of the partial award
“An award that partially decides on the merits of a dispute, immediately challengeable pursuant to art. 827, paragraph 3 of the code of civil procedure, is both that of a generic condemnation pursuant to art. 278 of the code of civil procedure, and the award that decides one or some of the questions of the case, without defining the entire proceedings; instead, the awards that decide preliminary issues are not immediately challengeable.”

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