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Plain Tiff
// Alfa Bank Blames Kommersant for its Troubles
Invited Paper
Yesterday Arbitration Appeal Court No. 9 partly satisfied Kommersant's appeal against the city arbitration ruling on 20.5 million rubles damage payment and 300 million rubles reputation damage compensation. The judges' panel decreased the damage payment amount by 10.8 million rubles. The issue on whether legal entities are entitled to file lawsuits on reputation damage is not specified in the law and will be decided by higher judicial instances.
The reason for Alfa's lawsuit was the article “Banking Crisis Comes Out on the Street,” published by Kommersant on July 7, 2004, describing long lines of depositors eager to get into the bank's divisions to withdraw their money.
The courtroom was crammed just like last Friday when the hearing on Kommersant's appeal was begun, so journalists had to bring in extra chairs from the hallway. Sitting at the long tables across the parties representatives were judges Anna Solopova, Elena Borisova and Vladimir Popov all dressed in mantles. After checking the powers of plaintiff and respondent lawyers Borisova opened the session:
“Last time we began our session with the plaintiff's explanations. You may continue, only don't repeat what you have already said, please.”
Alfa Bank lawyer Tatyana Kolcheva decided to first of all persuade the court of the fact that the respondent's finances received no damage.
“Kommersant director Vasilyev,” she said, “has said several times that the charged amount is not devastating. “We'll pay it, he said, and will even save some money on taxes.”
“What point are you trying to make?” the judge asked.
“That the charged amount is adequate and is not devastating for the respondent,” Kolcheva replied. “The respondent's main shareholder, Mr. Berezovsky, also told the press that Kommersant was a profitable company, and was able to solve such problems without involving shareholders.”
Then the plaintiff's representative told the court that the Alfa Bank had 32 divisions around the country and 4 representations abroad, including London. It was not a bank advertisement – Kolcheva's point was that “the degree of publicity caused by the article was extremely wide.”
“Such blow,” she continued, “could have brought on negative economic consequences, had the bank not coped with the crisis.”
This comment was in line with Freud. Plaintiff's representative, in essence, was acknowledging the fact that after publication of the article the bank experienced no “negative economic consequences” and that it overcame the crisis on its own. And now it just wants to punish the paper, while even in the college lawyers are taught that the goal of the civil law, unlike the criminal, is not punitive but restoring.
Judge Borisova asked Kolcheva what scale the bank used to calculate damage. The answer was that for instance the bank lost 2.3 million rubles by failing to offer credit after the article was printed. However, Alfa only had the debtor firms' requests for credit to offer as confirmation.
“Of course these are not credit agreements,” Alfa lawyer admitted, “there weren't any in this case. But if there had not been an outflow of deposits, we would have granted these credits.”
To provide evidence for the clause "losses from additional purchase of available dollars "
the claimant presented documents confirming the bank's purchase of dollars from
foreign banks. The claimant explained that within five days after the disputable
publication it was purchasing more dollars, than usual, so Kommersant had to compensate that loss.
The bank wished to charge the publisher with an additional 8.4 million rubles it spent for an advertising campaign on television. The bank had signed the contract with the
advertising agent half a year prior to the published article, and the advertisement was shown from July 19 to July 25, 2004, when the crisis had already passed. Nevertheless, yesterday, the claimant asserted the sum, stating "the advertising contract is ongoing, and we have sent a letter requesting advertising after the article had been published".
When respondent representatives were allowed to ask questions, Kommersant lawyer Dmitry Zharkov asked Kolcheva how much commission depositors were charged for withdrawing money during the July crisis and what part of the commission money had been returned to them to date.
” In our report we have specified that the commission has been returned completely,” she said, “but in reality 83 million out of 90 million rubles have been claimed. The remaining sum is allocated for return and consequently we count it as returned.
”And what is the Central Bank's estimation of your bank's business reputation? – lawyer Zharkov asked.
”We don't have such information,” the claimant representative answered.
”Do you give out credits to all clients who request them?” Kommersant lawyer asked.
”This question has no relation to the case,” Kolcheva parried.
”Well,” Zharkov continued, “you bought currency on July 12 of this year when the crisis had already passed. Why then have you ascribed it in losses to Kommersant?
”On July 11, there was still an outflow of deposits, and we did not know how much longer it would last,” Kolcheva answered.
The judges were listening to the doctor of jurisprudence and Kommersant lawyer Konstantin Sklovsky without interrupting just like they did at the first appeal session. He was saying again that nowhere in the world did a legal entity have a right to press charges for reputation damage and that the Moscow Arbitration court set a world precedent by charging Kommersant with reputation damage to Alfa Bank.
”The claimant has told us that its reputation value was calculated by the volume of deposit outflow,” Sklovsky addressed the court, “But this approach is absolutely incorrect! The money, which belonged to the investors, was to be returned to depositors anyway, only later. And
90 million rubles commission Alfa charged the depositors who withdrew their money allowed the bank to avoid any loss. If the bank was not able to grant credits, it is because of the usual risks, which cannot be blamed on third parties.
An Alpha Bank lawyer stepped in the discussion refusing to introduce himself to the press as he did not want to be publicly associated with the case. He said, that the
"inconvenience" from the Kommersant's article was suffered both by the bank's
shareholders, its leadership, “not mentioning the bank's staff of about six thousand people". Besides that, he said "the inconvenience was suffered by the bank's depositors and investors ". However, the anonymous representative refused to explain to court why the individuals who “suffered so much inconvenience” did not file lawsuits against Kommersant on their own behalf. This fact is easily explained: the individuals would have to address the district court of general jurisdiction, which operates by sums thousand times smaller for moral damage compensation than the arbitration court.
After the debates three judges conferred for about twenty minutes. Judge Borisova announced only the resolution part of the ruling: to exclude 10,8 million rubles from the 20,5 million rubles damage compensation and to leave the Moscow Arbitration court ruling on Kommersant publishing a refutation and paying 300 million rubles of reputation damage to Alfa Bank. Kommersant lawyers intend to appeal this decision in Federal Arbitration Court of the Moscow District. Kommersant financiers are going to execute the court's ruling in order to not give Alfa the opportunity "to punish" the publisher by sanctions from court officers.
All the Article in Russian as of Dec. 28, 2004
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Photo: Dmitry Dukhanin
