The greater the capitalization and profitability of the company, the greater the interest of ill-wishers to alienate property or control over the enterprise. The number of schemes is only increasing every year, this is facilitated by the improvement of legislation against raiding, paradoxically. Such actions almost always contain elements of a crime included in the Criminal Code of the Russian Federation.
How violation of the law manifests itself, what greenmail is and how to resist all this - you will learn from this article.
What is a raider takeover?
In modern economic realities, a raider takeover is forceful, legal, financial or other influence with the aim of alienating the property of another enterprise or appointing its own leader.
Raiding (from the English “capture”, “violence”) means a change in the ownership of an enterprise’s assets or the seizure of control over its management against the will of the owners and management of the company.
The concept itself has an extremely negative connotation among businesses and among ordinary citizens, since raider takeovers in the 90s and 2000s were often associated with violence, even murder.
Scheme of a classic raider takeover involving a bank
The concept of raiding came from the USA and the Western world, where this practice is widespread, but in a more civilized form, at first glance. Currently in Russia, the redistribution of property is no less fierce, but corruption, fraudulent schemes, and the use of legislation in one’s favor serve as instruments of pressure.
Since the development of the industrial revolution in England, Holland and other countries, entrepreneurs have been subjected to raider attacks from outside. The targets of takeovers were almost always profitable companies with large capitalization.
Until the 16th century, there was no large industrial business, as well as corporate law, so raiding was practically absent, except for piracy.
Customers for a raider takeover can be:
- Competitors who want to monopolize the market by acquiring similar companies.
- Small owners of blocks of shares or shares of PJSC, CJSC, LLC, who want to get more.
- Professional raiders. They usually have extensive experience, a qualified team of lawyers, economists, security officials, and have connections with the authorities.
- Minority owners of PJSC shares blackmailing the owner of a controlling stake so that he buys out their securities at a high price.
- Representatives of government bodies or law enforcement agencies who may seek access to financial flows and control over the enterprise.
- Persons driven by personal motives - envy, revenge, arrogance. In fact, there are many such types of capture customers.
Raiders are not interested in the organizational and legal ownership of the enterprise (LLC, CJSC, PJSC) and its size. They are driven by cold calculation, based on a financial analysis of income from a successful takeover of another company.
Who are the raiders disguised as?
Once upon a time there was a bank
A native of Kemerovo, Alexander Efremov has always been a media person in the region. He was a member of the Public Council at the Main Directorate of the Ministry of Internal Affairs of Russia for the Kemerovo Region, on his initiative the “Nest” prize was established for the development of children's literary and artistic creativity, and in 2012 he was elected president of the Kemerovo Regional Public Fund for Assistance in the Development of Sports named after. Yuri Arbachakov. It was Efremov who was the main shareholder of Kemsotsinbank, which was small by federal standards. Moreover, in Russia, the credit institution turned out to be one of the oldest - the bank was founded on May 17, 1989 (license No. 96). The bank's clients included well-known industrial, mining and construction companies in the region. And there have been no serious complaints or claims against the credit institution from the regulator during all this time.
The bank was small, but brought in income annually. In 2021, the bank became famous throughout the country by defeating the Central Bank. The regulator required a revaluation of the value of assets on the balance sheet of Kemsotsinbank, in particular, real estate properties owned by the bank. The bank refused to do this and went to court, where it won. He explained his refusal by the fact that the revaluation would lead to a deterioration in the financial situation and violations of the standards established by the Central Bank itself.
This court decision was made in August 2021, when the bank got into trouble with the bankruptcy of Insurance Investment LLC, another Omsk businessman Stanislav Matselevich, and the owner of the credit institution had problems of a criminal nature. According to investigators, the defendants in the case stole 1.7 billion rubles from STINKO in 2013-2016. The bank's accounts were blocked, and Alexander Efremov became a defendant in a criminal case, initiated, as he believes, absolutely without evidence. “I’m being judged because I didn’t steal money, but put it in a bank correspondent account, and I got it from the sale of my own property,” Alexander Efremov is indignant in an interview with Lenta.ru. According to him, the accusation signed by the prosecutor's office initially did not contain a single proven episode. And this is confirmed by the fact that the prosecutor’s office subsequently abandoned these charges. But first things first.
Photo: Davaisravnim.ru
Goals
The goals of the raiders are directly related to the varieties of their customers, since they solve different problems.
Let us highlight the main goals pursued by the raiders:
- Expansion of the market in which the company involved in raiding activities operates. Ideally, the market for a particular product or service should be monopolized from the raider's point of view. How much the FAS can interfere with this is another question.
- The redistribution of influence within the PJSC, which is initiated by a group of minority shareholders. The goal is to obtain a controlling or blocking stake.
- Establishing control over the enterprise by changing the director, who can redirect the flow of funds and assets.
- Blackmail of owners by minority shareholders in order to force the PJSC management to buy back securities at a high price.
- Sale, dismemberment, destruction of the company by professional raiders, who often act on orders.
- The ability to receive constant financial income from the company on illegal grounds after raider actions by government or law enforcement agencies.
- Capture of an enterprise for reorientation of the type of activity or for the construction of residential areas on its land.
Goals are often combined, which increases interest in the enterprise on the part of the raider.
In any case, the ultimate goal of any raider takeover is enrichment in any possible way. Gaining power over an enterprise also leads to enrichment.
Enterprise vulnerability factors
As with any form of conflict of interests between a decent person and a criminal, power is most often on the side of the latter. This is explained by both subjective and objective factors. In addition, raiders, as a rule, are fearless and are not afraid of losing everything, because... they transfer all property in advance into cash (cash) or transfer it to trustees. In addition, it is the raiders who are the most inconspicuous figures in the criminal world, which means that going on the run and completely covering their tracks is as easy as shelling pears for them.
There are significantly more methods for taking over an enterprise, company or other form of business than methods for protecting against raiders.
A decent person is obviously in a much more vulnerable position than a criminal. Invaders have a wider range of methods of influencing the victim than the victim has of methods of defense. This happens because the criminal is not limited by moral norms and uses any prohibited techniques and levers to achieve his goal.
- A person who has taken on the responsibility of managing and developing an enterprise is usually absorbed in work and cannot always notice in time the signs of raiders’ interest in his company.
- Conducting business honestly, he counts on the absolute honesty and incorruptibility of persons on whom the preservation of trade secrets and the competent maintenance of accounting and legal documents depend.
- Invaders usually prepare for a raider takeover long before it occurs. At the same time, they sometimes rely on the complicity of government and law enforcement agencies, that is, people called upon to protect the interests of the victim.
- At the same time, for the victim, the attack usually occurs suddenly, without the opportunity to prepare for defense. The owner of the enterprise does not know who exactly he is dealing with, this aggravates his situation.
Kinds
Today's raider is not a template racketeer from the 90s, demanding to rewrite the stall. Modern methods are much more sophisticated and varied, since legislation has changed significantly: Civil, Tax, Land, Criminal Codes, laws on bankruptcy, LLC, JSC, RCB and others.
The FAS, Investigative Committee, and the Ministry of Internal Affairs are actively monitoring the situation, but not always effectively. Today there are conditionally three types of raiding:
- White raider takeover , when the takeover of an enterprise occurs strictly in accordance with the law, but against the will of the owner and management of the company. Examples include hidden repurchase of shares to the level of a controlling stake in a PJSC, legal proceedings against owners, including bankruptcy. Often, legal raiding occurs against unprofitable companies that interfere with the expansion of the company's business. To prevent a white raider takeover, you need a good legal department and carefully worked out local acts of the company: charter, orders, decisions, and so on.
- Black raiding. It is an illegal seizure of the assets of an enterprise, based on forgery of documents, bribery of officials of the enterprise, courts, law enforcement agencies and authorities, fraudulent actions, threats, blackmail, and violent actions. LLCs, CJSCs and other non-public enterprises are least protected from this type of action. Owners need to fight back with the help of law enforcement agencies, prosecutors, courts, appeals to the media and to the public.
Scheme of raider seizure using a recorder - Gray raiding represents the most sophisticated method of taking over a company. In form, gray raiding complies with all legislative acts and court decisions, but in its entirety it represents fraudulent actions. To bring the gray raider to justice, a large-scale investigation and an objective court decision upon completion of the investigation are necessary. In fact, this happens extremely rarely for two reasons. Firstly, gray raiders are usually very careful and act only within the law, taking advantage of legal gaps and shortcomings in the document flow of the enterprise. Secondly, investigators are extremely reluctant to take on such cases if there are no judicial prospects.
Scheme of raider seizure of assets by court decision
Regardless of the “color” of the raider takeover, justice remains not on the side of the target of the attack, since assets leave him if proper measures are not taken.
Expert opinion
Yulia Kuznetsova
Expert in financial management, banking
Previously, bank raiding was also very common, when enterprises were bought by the bank due to debts for little money. Currently, most of the banking sector is state property, the rest is tightly controlled by the Bank of Russia. And things like cashing out, raiding, and fraud are extremely difficult to pull off without losing your license.
Preparatory activities of the raiders
Preparation for a takeover includes activities to study information about the victim company. They always have the same features:
- This is an analysis of economic indicators and assets.
- History of the enterprise (in order to identify dark spots).
- Availability of debt obligations.
- The management structure, relationships within the enterprise and with external contractors are studied.
- Studying the relationships between co-owners;
- Observation of the personal, non-working life of the company owner (family, marriage, mistresses)
- Introducing your own people into offices and production
- Use of technical means for wiretapping and hidden video recording
- Involvement of mass media
- Attracting the company's competitors, etc.
Next, levers of pressure are sought on the owner of the enterprise. They are determined based on the data received. The raiders will not hesitate to involve the owner’s relatives in the fight for the enterprise. They may be kidnapped, attacked, or sent threats. There are frequent cases of blackmailing people close to the owner of the company in order to manipulate their further actions. Often, much of the hijacking is carried out at the hands of others who are unaware of the consequences of their actions.
Law enforcement agencies have enough methods to fully combat raider attacks. However, the ever-growing professionalism of “pirates” makes it possible to circumvent the law.
If the raiders manage to carry out at least 80% of their plan and cover them with legal documents, then it will become impossible to bring them to criminal responsibility.
At the same time, the basic, proven ways of raiders “working” remain unchanged. For example, a corrupt method. It is considered the simplest and most effective. And since the direct participants in this scheme are law enforcement officers, their involvement in the crime can rarely be proven.
Example with Omsk MPZ
Let us give an interesting example of a double raider takeover, when one raider managed to take away an enterprise from another.
The Omsk MPZ (meat processing plant) at the beginning of the 2000s was a tasty morsel for many: it was the oldest enterprise in its industry, produced high-quality products, and was located on very expensive land in the city center.
In 2001, after the old owner passed away by falsifying documents in the LLC decision and after possibly bribing a notary, a person who knew little about the meat business, but wanted to make money, became the director and owner. The equipment at the enterprise was outdated, so a decision was made to modernize it using loans.
Banks were reluctant to give loans, so the director thoughtlessly took money from private individuals with a semi-criminal past at a high interest rate and a short term. The financial situation quickly deteriorated, modernization never happened, and the loans had to be repaid.
This situation was observed by a well-known company in Omsk that provides services in the field of security and finance. This company offered its services to the director of the MPZ, including the improvement of the business, provided that their person was appointed deputy. The powers of the deputies were practically greater than those of the director. In 3 months, a complete financial and legal picture was collected, and the prosecutor’s office was involved in relation to some violations.
Soon the director was arrested, and the company began to go through bankruptcy proceedings. After this, part of the MPZ area was leased out, and part - for housing development.
Victims of deception
With the introduction of a temporary administration in “STINKO”, events begin to unfold at lightning speed. First, Victoria Morozova, as the arbitration manager of STINKO, filed a statement with the Ministry of Internal Affairs of the Omsk Region about deliberate bankruptcy (Article 196 of the Criminal Code of the Russian Federation) on the part of the nominal director of the organization (and unidentified persons), claiming that immediately before the revocation of the license from STINKO » it identified suspicious transfers of funds from the organization’s account. Then the Arbitration Court of the Omsk Region declares STINKO bankrupt (case No. A46-5158/2016). STINKO LLC was declared bankrupt, and at the request of Morozova, Yosipchuk was appointed bankruptcy manager. In mid-July 2021, at the request of the same Morozova, the investigator of the Investigative Committee of the Ministry of Internal Affairs for the Omsk Region opened criminal case No. 354456 under Article 196 of the Criminal Code of the Russian Federation against unidentified persons.
Not the least role in the problems of STINKO, which insured the Balakovo shareholders of ZAO Saratovgesstroy, was played by the introduction of bankruptcy proceedings and the subsequent bankruptcy procedure of this construction company. The company built four apartment buildings in the city of Balakovo (a regional center in the Saratov region) (https://kvobzor.ru/article/i2539). The number of affected shareholders due to the introduction of bankruptcy proceedings at ZAO Saratovgesstroy is about 300 people. STINK insured the liability of Saratovgesstroy in the amount of about 500 million rubles, and the situation turned out in such a way that after the hasty introduction of a competitive procedure, initiated at the insistence of some aggressive creditors, the largest claimant, represented by the insurer, was left off the register. If half of the potential insurance payment was paid off by the delivery of a highly completed house, which was being built by Saratovgesstroy, then the remaining 250 million rubles became a direct loss to STINKO.
The problems of Balakov’s defrauded shareholders reached the federal level, and, apparently, Vladimir Yosipchuk actively used them as part of the bankruptcy of STINKO LLC. At the same time, it is absolutely unclear on what grounds and for what purpose the defrauded shareholders of Saratovgesstroy were recognized as victims in the theft of funds from STINKO in the criminal case of Matselevich and other participants in the trial in Omsk.
Vladimir Iosipchuk
Photo: Novosti-saratova.ru
Technologies
There is no universal and unified technology for raider capture, but the following methods are used:
- Fraud . Forgery of documents, falsification of court decisions, minutes of meetings, bribes to officials, nominal registration of an enterprise with the Federal Tax Service with a dummy director, forgery of signatures, production of false documents. It is very common for minority shareholders to hold a general meeting of shareholders without notifying the majority shareholders. At such a meeting, a general director is elected, who immediately withdraws assets and redirects cash flows. Most likely, such a decision of the general meeting of shareholders will be overturned by the court, but the raiders will already carry out their plans. There are often cases when people come to an entrepreneur with a court decision to recover an amount from another region or are sent to a bailiff. After this, the seizure of property and accounts and debt collection begin. In general, fraud leads the list of raiding methods.
- Forceful seizure threatens the life of owners or relatives. This method is not so common now, but such cases occur in our time too.
- Taking over an enterprise through bankruptcy . Today's 127-FZ leaves few loopholes for the raider, but if he is the main creditor, then the enterprise will most likely go to him. The owner, observing this course of events, prefers to sign a settlement agreement with the creditor. There is, of course, the option to go through all stages of bankruptcy, which can last from 1.5 years. During this time, it is possible to withdraw assets and financial resources, but in this case the owner violates the law.
- Pressure from the state or security forces . Most of these security forces act arbitrarily and illegally. There is also an option when there is pressure on a businessman from the federal authorities in order to get an important business. This happened with the owner of Sibneft (now Gazpromneft) Abramovich, although he received billions of dollars from the state, so it’s difficult to talk about raiding here. However, there are other cases. For example, today Rostec is very active, acting more from an administrative position in order to absorb profitable industrial enterprises.
- Purchase of shares of a public joint stock company through intermediaries and secretly . After receiving a controlling stake, the company changes hands.
- Bribery and use of enterprise management. This method of transferring ownership rights was very popular in the 90s and 2000s, but does not lose its relevance now. A director bribed by a raider can cause deliberate damage to his enterprise: enter into obviously unprofitable deals, take out unnecessary loans, get rid of assets. All this weakens the company, which becomes easy prey for a raider.
- Conspiracy of companies against one PJSC . In this case, financial resources are used to secretly buy out shares to acquire a controlling stake.
Technologies of raider capture
In most situations, a raider combines several methods at once in order to achieve the effect as quickly as possible and for relatively little money.
How can raiding be prevented?
Takeovers usually occur due to sloppy work by top management and the economic security service. To prevent these risks, you need to take simple steps:
- Constant monitoring for interest in your business is unjustified.
- Eliminate possible legal loopholes that you can cling to.
- Diversify your business, create several joint-stock companies or LLCs.
- Protection of confidential company information.
- Avoid “dispersion” of shares, concentrate them in several hands.
- Don't take out a lot of loans.
- Additional issue of shares.
- Re-registration in another region or country.
You can also start legal action against the invading organization, which can drag on for years. Russian legislation has not yet been fully finalized in this area: both in cases of voluntary mergers of joint-stock companies, and in protecting shareholders and owners of enterprises from raider takeover.
Judicial cascade
As a rule, the judicial cascade is applied first. Its purpose is to use the necessary measures to secure the claim, which is withdrawn by the invaders themselves after a certain period. Winning in the process is not the goal itself. This measure is carried out by filing a lawsuit. Thus, a ruling is made to establish interim measures, and all or part of the enterprise’s property is seized. Consequently, the organization will no longer be able to protect its property from raider attacks. Such lawsuits are cascading in court. As a result, the organization's main assets become blocked. Consequently, it will be impossible to sell or mortgage them.
What is greenmail?
Greenmail (from English “green letter”) is no less dangerous for business than raider takeovers, and in fact, is its variety. It is a kind of message to the owner or director with an unambiguous hint, but the law is usually not violated.
As a striking example of greenmail, one can cite the head of a horse in the bed of one businessman in the film “The Godfather” from the main character.
Of course, modern business is not so radical and the blackmail is more subtle, but this does not make it any better. For example, a funeral wreath for your birthday, hints to reveal certain secrets, letters with photographs of the children of the owner of the enterprise are at least unpleasant to receive.
Typically, blackmailers do not demand control over the company; they are satisfied with a high amount for their share of shares in a PJSC or share in an LLC.
Expert opinion
Dmitry Dunyashev
Blogger, private investor, project manager real-investment.net
Another version of greenmail is a declaration of corporate war by a minority shareholder. This minority shareholder can endlessly request documents, demand explanations from management, lead people to petitions, and carry out other actions that interfere with the work of the company. The purpose of such actions is one - to sell their stake to the owners at a higher price.
Typically, blackmailers do not demand control over the company; they are satisfied with a high amount for their share of shares in a PJSC or share in an LLC.
How to prevent greenmail?
There is no punishment in the Criminal Code for such actions unless the law has been broken. In general, owners are advised to:
- Select good personnel for the security service.
- Consult through informal channels with representatives of law enforcement agencies; we are not talking about bribes here.
- Engage the legal department to constantly file lawsuits against the blackmailer for any reason.
- Carry out mirror measures, but only within the framework of the law.
If the blackmailer violated the Criminal Code, then immediately file a complaint against him with the law enforcement agencies. Evaluate every action of the blackmailer for violation of laws.
Judicial practice in the field of corporate blackmail
It is quite difficult to talk about judicial practice in the context of corporate blackmail, since it is practically absent. In addition, the Ministry of Internal Affairs absolutely does not keep records of cases of greenmail, since there is no such concept there. But people are imprisoned for fraud (Article 159), for threatening life (119), for extortion and blackmail (Article 163). Detailed list of articles with links in reference materials at the end of the article.
One thing is for sure - greenmail cases rarely go to court. The evidence base of the accusers is usually small and the court often acquits the blackmailer.
Not only legal business
The story of the criminal case of Stanislav Matselevich and the bankruptcy of STINKO deserves a separate story. Pavel Yasko spoke in court about the fact that the security forces are putting pressure on Matsevelich. It should be admitted that the entrepreneur, along with legal commercial activities, was engaged in cashing out funds through shell companies, as evidenced by the materials of the criminal case, which is currently being considered in the Central District Court of Omsk. He had good patrons, but at some point he lost their support.
Rafael Petrosyan and Stanislav Primakov
Photo: Kvnews.ru
Matselevich, together with two of his subordinates, was detained on August 20, 2015 on suspicion of illegal banking activities (Article 172 of the Criminal Code of the Russian Federation) and the creation of a criminal community to commit serious crimes (Parts 1 and 2 of Article 210 of the Criminal Code of the Russian Federation). According to investigators, he is the creator and leader of a criminal organization that has been involved in cash transfers since 2011. “In their illegal activities, members of the group used at least 48 fictitious companies they created, through which they cashed out funds,” the investigation reported.
As Kommersant wrote, an illegal financial organization operated in the region for three years. It provided banking services for transit, collection and cash withdrawal, retaining a commission - from 0.03 to 3.5 percent of each transaction. According to the preliminary investigation, over the three years of its existence, the underground bank made transactions totaling more than 9.2 billion rubles. In May 2019, an additional investigation into this case was completed; it is currently being considered in the Central District Court of Omsk: there are nine defendants in the dock.
After the arrest of Stanislav Macelevich, all his assets remain unattended. At the beginning of April 2021, the Central Bank deprived STINKO of its license; the temporary administration of the company was headed by Victoria Morozova (formerly Sidorenko), who initiated the bankruptcy of the company. Then Vladimir Iosipchuk, a member of the Siberian Guild of Anti-Crisis Managers association, becomes the bankruptcy manager of STINKO. Whether it’s a coincidence or not, both Morozova and Iosipchuk are from Rostov-on-Don, as was Anastas Spiridonov, who at that time headed the prosecutor’s office of the Omsk region, who moved to the regional capital from Georgia in 1979 (by decree of Vladimir Putin he was dismissed in December 2021 of the year). There Spiridonov graduated from the Faculty of Law of Rostov State University. From 1997 to 2004, he headed the prosecutor's office of the Proletarsky district of the city of Rostov-on-Don, from December 20, 2004 he was appointed deputy prosecutor of the Rostov region, from January 25, 2008 - first deputy prosecutor of the Rostov region. And in June 2008, he was confirmed as the prosecutor of the Omsk region.
CJSC "Saratovgesstroy" Photo: Stroysar.ru
The difference between a legitimate takeover and a hostile one
Merger, acquisition or accession are forms of voluntary reorganization of public joint stock companies in order to increase the authorized capital, assets and other benefits. Situations often arise when, in order to survive in a competitive market, enterprises need to merge into one legal entity, liquidating the old ones.
By combining common assets, financial resources, technology, management, patents, a single company will have much more opportunities for entrepreneurial activity.
Nature of acquisitions
A raider takeover always occurs against the will of the owner and management, and legislation is often violated. The most important difference is that there are no economic prerequisites for takeover during raiding, which would lead to mutual benefit.
The difference between greenmail and raiding
Raiding is considered a more severe form of taking property and money from the owner of an enterprise. Many people are imprisoned for raider takeovers; this phenomenon has been criminalized. Preparing a raid requires large financial, human, administrative and other resources. Every year new laws are adopted, amendments are made, FAS decisions are made that complicate the activities of raiders.
Greenmail is also a way of taking money from a business owner, but it is very difficult to prove the criminal component here. Essentially, this is a method of blackmail, methodical and persistent, which does not break the law, but the target of the blackmail is aware of what is happening. The blackmailer's hope is not to seize ownership or control of the entire company, but to receive money, for example, for selling a block of securities at a price much higher than the exchange price.
Useful materials (download)
| # | File | file size |
| 1 | Article 159. Fraud | 186 KB |
| 2 | Article 163. Extortion | 832 KB |
| 3 | Article 185. Abuses during the issue of securities | 831 KB |
| 4 | Article 285. Abuse of official powers | 836 KB |
| 5 | Article 330. Arbitrariness | 110 KB |
| 6 | Article 119. Threat of murder or grievous bodily harm | 829 KB |
