ARBITRAL PROCEDURE BERNARD TAPIE CDR GROUP
LexInter | December 8, 2018 | 0 Comments

ARBITRAL PROCEDURE BERNARD TAPIE CDR GROUP

The first president, by ordinance of June 26, 2006, referred the examination of these appeals to the Plenary Assembly;

On appeal n ° 06-11.056  :

The plaintiff invokes before the Plenary Assembly the grounds of cassation annexed to this judgment;

These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by the SCP Célice, Blancpain and Soltner, lawyer for CDR Créances;

Observations in support of the appeal were filed by SCP Vier, Barthélemy and Matuchansky, lawyer for Crédit lyonnais;

A defense and a possible cross-appeal whose plea is annexed to this judgment were filed at the registry of the Court of Cassation by the SCP Piwnica and Molinié, lawyer of the company MJA and Mr. Y …, in his capacity;

A defense was deposited with the registry of the Court of Cassation by the SCP Lyon-Caen, Fabiani and Thiriez, lawyer of Mr. and Mrs. T …;

A defense with possible cross-appeal, observations in reply and request for an injunction to communicate documents, and an additional clarification were filed with the registry of the Court of Cassation by SCP Célice, Blancpain and Soltner;

Additional observations, additional observations in defense and a rejoinder were filed by SCP Lyon-Caen, Fabiani and Thiriez;

Observations in defense were lodged with the registry of the Court of Cassation by Me Jacoupy, lawyer of the company Consortium de Réalisation;

On appeal n ° 06-11.307  :

The applicant invokes before the Plenary Assembly the grounds of cassation annexed to this judgment;

These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Vier, Barthélemy and Matuchansky, lawyer for Crédit Lyonnais;

A defense and a possible cross-appeal, whose plea is annexed to this judgment, were filed with the registry of the Court of Cassation by SCP Piwnica and Molinié, lawyer of the company MJA and Mr. Y …, in his capacity;

A defense, additional observations in defense and a rejoinder were filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer Mr. and Mrs. T …;

A reply and defense to possible cross-appeal was filed with the registry of the Court of Cassation by SCP Vier, Barthélemy and Matuchansky;

A defense was lodged with the registry of the Court of Cassation by Me Jacoupy, lawyer for the Consortium de Réalisation;

The written report of Mr. Petit, advisor, and the written opinion of Mr. Lafortune, advocate general, were made available to the parties;

(…)

Ruling both on appeal n ° 06-11.056 brought by the company CDR claims (CDR claims) coming to the rights of the Western Bank Company (SDBO) and on appeal n ° 06-11.307 brought by the company Le Crédit lyonnais (Crédit Lyonnais), who attack the same stop;

Whereas, according to the judgment under appeal, that MT … had, with his wife, organized his activities and his patrimony around two partnerships of which they were the only partners, the company Financière et Immobilière B … T .. (the company FIBT) and the company Groupe B … T … (the company GBT); that while the first grouped together the various patrimonial assets of the spouses T …, the second held the majority of the capital of the limited company B … T … finance (the company BTF SA), itself holder of the participations industrial products of the group and in particular that acquired in July 1990 and January 1991, through the intermediary of the German company BTF GmbH and with the financial support of the SDBO, in the capital of the company Adidas; that Mr. T …. having decided to cease his industrial and commercial activities, the companies GBT, FIBT and BTF SA have, on December 10 and 16, 1992, concluded with the SDBO a “memorandum” then a “letter of engagement” under the terms of which the company BTF SA irrevocably undertakes to sell, to later on February 15, 1993 and for a price set at 2,085,000,000 francs, to all companies designated by SDBO and at its first request, all of its shares representing 78% of the capital of BTF GmbH as well that to allocate the whole of the price to perceive of this transfer with the refunding of the contests having benefited to the three companies, which were also to merge within a new company; that this same December 16, 1992, the company BTF SA entrusted to the SDBO, for the same duration, the irrevocable mandate to solicit buyers and receive the prize; that the planned transfers took place on February 12, 1993 for the benefit of eight companies, including the company Clinvest, a subsidiary of Crédit lyonnais, which, while it already held 10% of the capital of BTF GmbH, acquired some 9.9% additional, and the company Rice SA formed by Mr. Louis-Dreyfus, with the help for some of them of a specific loan called “with limited recourse” granted by Crédit Lyonnais and stipulating in particular that in the event of resale, the capital gain would be shared at the rate of one-third for the borrower and two-thirds for the bank; that the same day, all the assignees also consented to Mr. L …- D …, until December 31, 1994, a promise to sell their respective acquisitions for a price of 3,498,000,000 francs, an option which was exercised on December 22, 1994; that the memorandum could not be executed, nor the protocol signed on March 13, 1994 with Credit Lyonnais to put an end to the banking relations of the interested parties and settle the accounts of the group T …, the loans granted to the latter have been made payable; that the companies of the group T … were then the subject of reorganization procedures then of judicial liquidation, soon continued under common patrimony, with the exception of the company BTF SA which, benefiting from a continuation plan, is became the European Distribution and Weighing Company (CEDP); that reproaching Crédit Lyonnais and the SDBO for having abusedly supported the Tapie group and fraudulently concluded, as of December 1992, “a secret double resale agreement” with ML ..- D …, the bodies of insolvency proceedings sought the responsibility of Crédit Lyonnais and SDBO; that after having declared the company Associated legal representatives (the company MJA) and MY .. admissible to act, in their capacity as liquidating agents of the companies GBT, FIBT, BTF SA and B … T … gestion (the company BTG) as well as Mr. and Mrs. T …, in compensation for the damage suffered by the company GBT and said that, although not having been a party to the mandate, Crédit Lyonnais was obliged by it, the court of appeal ruled, first of all, that the two credit institutions had failed in their obligations as agents by acquiring intermediaries of the participations they were responsible for selling as well as by lacking loyalty towards the principal which they had not informed of the negotiations in course with ML ..- D … and to which they had not offered the limited recourse loans granted to the assignees and, then, that this last fault had caused the group T … to lose a chance to realize the gain of which he would have benefited if, having obtained adequate financing, he had been able to sell directly the participation Adidas to ML ..- D … in December 1994; that appreciating this prejudice in the light of the conditions of the limited recourse loans,

On the fifth ground of appeal brought by CDR claims and the first ground of appeal brought by Crédit lyonnais, which are preliminary, met:

Whereas the CDR claims and Crédit Lyonnais criticize the judgment for having declared admissible the action brought against them by the company MJA and MY .., acting in their capacity as liquidators of the companies GBT, FIBT, BTF SA and BTG, as well as Mr. and Mrs. T …, then, according to the means developed by the CDR claims:

1 ° / that if the existence of a group of contracts can justify the interest of the third party to act against a person with whom he is not directly bound by a contract, this circumstance does not give him for all that quality to exercise against him an action of a contractual nature; in the present case, the judicial liquidators of SNC GBT based their action against Crédit lyonnais and CDR claims on the violation of their contractual obligations as agent, as evidenced by the visa of articles 1116, 1134 , 1596, 1991 and 1992 of the Civil Code; that by ruling their action admissible on the ineffective ground that there was an indisputable link between the mandate of December 16, 1992 and the memorandum of December 10, 1992, the Court of Appeal violated Article 1165 of the Civil Code,

2 ° / that a third party to a contract could not invoke the violation of the obligations which it contains without establishing that the invoked breach is also constituting a fault with regard to it; in this case, the memorandum of December 10, 1992 was limited to providing for the allocation of the price of the future sale of Adidas to the clearance of debts of the company BTF SA and SNC GBT with regard to the SDBO; that this memorandum did not refer either to the terms of the cession to intervene, or to the existence of a mandate between BTF SA and the SDBO; that by holding that, solely because of its status as a party to the memorandum of 10 December 1992,

3 ° / that the shareholder of a company is inadmissible to ask a third party for compensation for damage which is only the corollary of damage inflicted on this company; by affirming, on the contrary, that the judicial liquidators of SNC GBT, the majority shareholder of BTF SA, were entitled to request compensation for the damage which they considered to have indirectly suffered as a result of the wrongful execution of the contract of December 16, 1992, the court of appeal violated article 31 of the new code of civil procedure;

4 ° / that the CDR claims recalled in its conclusions that, according to under the terms of the memorandum of December 10, 1992, the allocation of the available cash generated by the sale of Adidas and other industrial subsidiaries of BTF SA to the deleveraging of SNC GBT and FIBT was subject to the prior condition of a merger of the companies BTF SA, GBT and FIBT in a single entity, this condition being necessary to avoid an abuse of corporate assets to the detriment of BTF SA; that it underlined still that the company BTF SA had expressly renounced the merger envisaged, because of the hostility of its minority shareholders, what it had informed the SDBO and the COB by letters of January 28 and February 3, 1993;

5 ° / that the repair granted to the plaintiff cannot exceed the limits within which the judge admitted his interest to act; that it follows from the very findings of the judgment under appeal that SNC GBT had no interest in acting unless part of the sale price that BTF SA would receive under the sale of Adidas would be assigned to the extinction of its own debts, under the conditions provided for in the memorandum of 10 December 1992; that the judgment under appeal, which itself recognizes that SNC GBT did not have the capacity to “request the recovery of the capital gain that could have been achieved by BTF SA following the sale of Adidas”, does not could, without ignoring the consequences of its own findings and violate Articles 1382 of the Civil Code and 31 of the New Code of Civil Procedure,

6 ° / that by omitting to specify which of the entities of the “Tapie Group” had lost a chance to achieve this capital gain and to indicate whether this entity was distinct from the seller BTF SA, the court of appeal did not put the Court of Cassation in a position to ensure that the damage for which it ordered compensation was indeed personal damage to SNC GBT, distinct from that suffered by its subsidiary BTF SA; that thus ruling, the court of appeal deprived its decision of legal basis with regard to article 31 of the new code of civil procedure;

7 ° / that a possible acquisition by SNC GBT of Adidas shares held by its subsidiary BTF SA by means of limited recourse loans granted by Crédit Lyonnais would have characterized an abuse of corporate assets by illicit transfer of unrealized capital gains the assets of a listed company (BTF SA) for the benefit of one of its shareholders (SNC GBT), so that by declaring SNC GBT admissible to apprehend, as compensation, the proceeds of this unlawful assembly, the Court of Appeal violated Articles L. 242-6 of the Commercial Code and 31 of the new Code of Civil Procedure;

and, according to the means developed by Crédit lyonnais:

8 ° / that a company is inadmissible to request compensation for damage suffered by another company in which it holds the social shares; that by declaring the action taken by the legal representatives of SNC GBT in compensation for damage allegedly suffered by BTF SA, a company of which SNC GBT had been a shareholder, the Court of Appeal violated Article 31 the new code of civil procedure;

9 ° / that having noted the loss, by SNC GBT, of its capacity as shareholder of BTF SA since October 25, 1995, following the allocation of BTF shares to SDBO, and therefore that ‘it was also common ground that the proceedings instituted by the judicial liquidators of “Groupe T …” and of spouses T … for the purpose of ordering Crédit lyonnais, SDBO and Clinvest to pay them an overall compensation of 2,500,000,000 francs for various alleged faults, had been introduced by deed of February 21, 1996, either subsequent to the loss by SNC GBT of its capacity as shareholder of BTF SA, the court of appeal,who refused to deduce from this the lack of current interest of GBT and its liquidators to complain about the circumstances of the sale by the company BTF SA of the shares of the company BTF GmbH, violated article 31 of the new code civil procedure;

10 ° / that by deducting the interest in acting of SNC GBT and its liquidators from the application of a memorandum providing for the allocation by the company BTF SA of the price of the future sale of Adidas to the payment of the sums owed by GBT to the SDBO, hypothetical application since depending on the possibility for BTF to actually carry out this allocation, once the transfer has been made, or even on its willingness to respect the terms of the memorandum, the Court of Appeal retained an interest in bringing proceedings. purely possible, in violation of article 31 of the new code of civil procedure;

11 ° / by not investigating, as Crédit Lyonnais had invited, whether the execution of the memorandum providing for an allocation of the proceeds from the sale of the shares of the company BTF GmbH, itself holding Adidas, held by the company BTF SA to the reimbursement of the assistance granted by the SDBO to the SNC GBT and to the SNC FIBT, was not subject to the prior fulfillment of a condition relating to the merger of these last two companies and the company BTF SA , since BTF SA was a listed company and the capital gain resulting from the sale of shares belonging to it could not, without injury to the interests of minority shareholders, be allocated to the payment of the debts of third-party companies, one of them being SNC GBT, even if it were a shareholder of BTF SA, and if, consequently,the rapid abandonment of the merger project between the three companies concerned had not rendered the memorandum null and void and deprived SNC GBT of any interest, even purely possible, in complaining about the circumstances of the sale by the company BTF SA of the shares in the company BTF GmbH, the court of appeal deprived its decision of legal basis with regard to article 31 of the new code of civil procedure;

12 ° / that by affirming purely and simply that the judicial representatives of SNC GBT would be admissible to seek compensation for the indirect damage suffered as a result of the alleged faulty performance of the contract of December 16, 1992, without however specifying in any way the content this alleged prejudice by ricochet, the court of appeal deprived its decision of legal basis with regard to article 31 of the new code of civil procedure;

But given, in the first place, that it follows neither from the judgment nor from their conclusions that the CDR claims and the Crédit lyonnais developed, in support of their dispute relating to the admissibility of the action of the liquidator agents , the criticisms raised by the fourth, fifth, sixth, seventh, tenth and eleventh branches of the plea, which are new and mixed in fact and in law;

Whereas, in the second place, the judgment notes that the liquidator representatives did not limit themselves to requesting compensation for the loss suffered by the company GBT in its capacity as shareholder of the company BTF SA but that invoking breaches of the agreement of December 16, 1992 by which the latter company had, in execution of the memorandum of December 10, 1992 of which this agreement constituted the implementation, charged the SDBO with the sale of its participation, they also requested compensation for the damage suffered by GBT for having been deprived of part of the funds which the memorandum had planned to allocate to the repayment of its own debts; that in the state of these findings from which it follows that the liquidator agents, who invoked prejudice specific to the company GBT,

From which it follows that the plea, partly inadmissible, is unfounded for the rest;

On the second and third grounds of appeal brought by the CDR claims, met:

Whereas the CDR claims criticizes the judgment for having said that the SDBO had failed in its obligations as agent, then, according to the means:

1 ° / that the prohibition made to the agent to act as counterparty is of private interest and only sanctions counterparty transactions concealed from the principal; that in the present case, the judicial liquidators of the companies of the “Group T …” had not supported in their conclusions that the strengthening by Clinvest of its own participations in the capital of the company BTF GmbH (Adidas) carried out by the acquisition of an additional 9.90%, was constitutive of a counterpart transaction which would have been concealed from the principal and therefore unlawful under Article 1596 of the Civil Code; that they had, moreover, abandoned any request of this head against the company CDR participations, coming to the rights of Clinvest, in their last conclusions;

2 ° / that the prohibition enacted by article 1596 of the civil code does not apply when the principal consents to the agent acting as counterpart by ratifying the transaction; that in the present case, he indicated in his conclusions that the company BTF SA was represented by an ad hoc representative, a lawyer, through which it had concluded the act of February 12, 1993 relating to the sale of the 78% that it held in the capital of the company BTF GmbH for the benefit of various named purchasers including the company Clinvest for 9.90%; that by affirming that this acquisition of a block of 9.90% by Clinvest was illegal under Article 1596 of the Civil Code, without investigating whether the company BTF SA, principal, had not knowingly consented to sell part of its shares to Clinvest,

3 ° / that only the granting of a right of intervention in social affairs for the benefit of the lender of funds is likely to confer on him the quality of associate of the business which he finances; in the present case, he emphasized in his conclusions that the limited recourse loan agreements concluded between Crédit Lyonnais and some of the purchasers of the shares of the company BTF GmbH (Adidas) had not conferred on the bank any right to intervention in the business of the transferred company, each of the borrowers remaining free to exercise their partner prerogatives at their convenience, without having to render an account to the bank; that, in order to decide that Crédit Lyonnais had purchased shares in BTF GmbH through intermediaries, the court of appeal held that the purchasers of these shares were only the apparent owners, since they had conventionally waived the free disposal of their shares and that the bank had itself reserved two-thirds the capital gain that could result from the resale of these units; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code; since they had conventionally renounced the free disposal of their shares and the bank had itself reserved two-thirds of the capital gain that could be generated by the resale of these shares; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code; since they had conventionally renounced the free disposal of their shares and the bank had itself reserved two-thirds of the capital gain that could be generated by the resale of these shares; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code;

4 ° / that article 8-3 of the limited recourse loan agreements provided: “regardless of the completion of any transfer operation, the Borrower shall have the option of prepaying all of this loan subject to compliance with a notice period of fifteen days. (…) Any reimbursement will be final and will be made for the balance of any account. ” ; that it follows from the clear and precise terms of this provision that borrowers had the option of recovering the free disposal of their units at any time, reserving all of any capital gain by substituting a conventional loan for the loan at any time. limited recourse; that by affirming that it resulted from the combination of Articles 8 and III of the loan agreements that the borrowers, apparent owners,

5 ° / that the carry is the agreement by which a person acquires securities on behalf of a principal who undertakes to buy them back or have them bought back by a third party on a fixed date and for a minimum price ; that, considering that the loans granted by Crédit Lyonnais to some of the purchasers of shares in BTF GmbH (Adidas) constituted a carry transaction pending the exercise of the option granted until December 31, 1994, at the request of the bank, by all the partners in ML …- D … however that it noted that ML ..- D … had only been granted a forward purchase option on these shares, which resulted in the co-purchasers of Adidas not being creditors of any commitment to buy back their shares, the Court of Appeal violated Article 1134 of the Civil Code;

6 ° / that the agent responsible for selling company shares is only required to bring to the attention of the principal that the elements likely to lead the latter to renounce the planned sale or to revise its conditions; that by retaining that it entered into the obligations of the SDBO to inform its principal that a buyer was “possibly a buyer” at a term of two years for a price higher than that fixed by the principal, however that it raised that it was only a simple option to buy, insusceptible to lead to the slightest certainty of a future sale, the court of appeal did not draw the legal consequences of its own findings, in violation Articles 1992 and 1147 of the Civil Code;

7 ° / that the court of appeal which reproaches, moreover, the Credit lyonnais not to have informed MB … T … that it was ready to finance the purchasers of Adidas, information of nature indifferent to the principal and that the bank did not have to bring to its knowledge violates again articles 1992 and 1147 of the civil code;

8 ° / that it is all the more so since the banker, bound by a duty of confidentiality on the affairs of his correspondents, does not have to reveal, even to his own principal, the private agreements concluded by the purchasers of the shares that he is responsible for selling, as long as they relate to operations distinct from the planned contract; that it is free for him to finance the purchasers without being required to inform his principal; that in judging that Crédit Lyonnais had committed a fault by refraining from revealing to its principal the fact that the bank was prepared to grant financing to some of the buyers of Adidas as well as the reciprocal arrangements by which some of these buyers had granted one of them an option to repurchase their shares at term,

9 ° / that the agent is not required to specifically draw the attention of his principal to public information already known to him; that in the present case, he poured into the debates, on the one hand, a press release of February 4, 1993, prior to the sale of Adidas, by which MB …- T … had, in advance, publicly defended the legitimacy of the intervention of Crédit Lyonnais in the financing of buyers and, on the other hand, the statements by which Ms. G … B ……, usual counsel of MT …, had indicated on the subject of the purchase option granted by the co-purchasers of Adidas to ML ..- D …: “I obviously know the clause from the purchase of the shares of T …. But I do not remember if I spoke to him about it. It is more likely that I spoke about it to his deputy E … F … “, CEO of the company BTF SA; legal basis with regard to Articles 1992 and 1147 of the Civil Code;

But whereas, if the judgment notes first of all that the banks committed faults by becoming assignees of the shares which they were mandated to sell and by failing in their obligation to faithfully inform their principal, it is limited to then, to characterize the existence and assess the extent of the damage caused by the breaches attributed to the Crédit lyonnais group, it should be noted that the latter did not comply with its obligations as an agent bank by refraining from making a proposal to the T group. .. the financing constituted by the limited recourse loans granted to some of the transferee companies; that, the Court of Appeal having thus held that this abstention was the sole cause of the damage for which it granted compensation, it cannot be usefully reproached to him to have noted the existence of other failures which do not constitute the support of its decision; that the means, inoperative, can not be accepted;

But on the second ground of appeal brought by Crédit lyonnais:

Considering articles 1134 and 1165 of the civil code;

Whereas to retain the responsibility of Crédit lyonnais, the judgment retains that, although it was not a signatory of the mandate or of any of the agreements signed with the companies GBT, FIBT and BTF SA in December 1992, this establishment , which was actively involved in the design and execution of these agreements, in particular by granting and organizing the necessary financing for the set-up imagined with the co-purchasers of the Adidas participations, and who had even agreed to report on its action to the press and the parliamentary commission of inquiry charged with analyzing the operation, was bound by the mandate;

Whereas in determining themselves thus, while the liquidator agents, who based their action on breaches of Articles 1116, 1134, 1596, 1991 and 1992 of the Civil Code, had chosen to act on the sole contractual ground, that the companies GBT, FIBT and BTF SA had only dealt, for the transaction in question, with the sole SDBO, a separate legal person which it was claimed neither that it would have been fictitious nor that its assets would have merged with that of its parent company, the Court of Appeal, which ruled for reasons improper to show that the interference of Crédit Lyonnais in the execution of the mandate issued to its subsidiary had been such as to create for the principals a specific deceptive appearance to allow them to legitimately believe that this establishment was also their co-contracting party,from which it could then have deduced that the latter was bound by a mandate to which he had not been a party, did not give a legal basis to his decision;

On the first ground of appeal brought by CDR claims, taken in its third part, and the fourth ground of appeal brought by Crédit lyonnais, taken in its first part, met:

Considering articles 1134 and 1147 of the civil code;

Whereas in order to retain the liability of CDR claims and Crédit lyonnais, the judgment retains that the Crédit lyonnais group had failed in its obligations as an agent bank by refraining from offering the T group … the financing constituted by the loans to limited recourse which it had granted to some of the assignees of the disputed shareholdings;

That by so ruling, while it does not enter into the mission of the agent to finance the transaction for which he is entrusted and that, except in the case where he is bound by a previous commitment, the banker is always free , without having to justify its decision, which is discretionary, to offer or grant credit in any form, to abstain or refuse to do so, the Court of Appeal violated the aforementioned texts;

And on the single ground of the possible cross-appeal:

Whereas the liquidator representatives ask, in the event that a cassation is pronounced on one or other of the main appeals, to quash the provisions of the judgment which limited the compensation for the damage suffered by the T group … third of the gain of which he had been deprived;

But expected that the terms of the cassation pronounced on the main appeals make the means without object;

And given that the judgment being quashed in that it held that the banks had committed a fault engaging their liability, there is no need to rule on the complaints criticizing the assessment of the damage which would have been caused by this fault;

FOR THESE REASONS, and without there being any need to rule on the other complaints:

BROKEN AND CANCELED, but only on the grounds of the sentences pronounced against CDR claims and Crédit Lyonnais, the judgment rendered on September 30, 2005, between the parties, by the Paris Court of Appeal; returns, on this point, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Paris, otherwise composed;



SUPPLEMENTARY MEANS  


 

Pleas produced by the SCP Célice, Blancpain and Soltner, lawyer advising for the company CDR Créances, plaintiff in the main appeal n ° 06-11.056 

FIRST MEANS OF TERMINATION  

On the alleged obligation of Crédit Lyonnais to offer financing to “Groupe T …”, keystone of the condemnation

The judgment under appeal is criticized for having condemned Crédit Lyonnais and CDR Claims to be paid to SELAFA MJA represented by Master X … and to Master Y …, ex officio, the sums of 135,000 000 € for damages and 300 000 € for their irrecoverable costs, in addition to the charge of the costs of first instance and of appeal, and AVAVIR says that the claims of the judicial Liquidators relating to the damage suffered for good reason of the judicial liquidation of the companies of the group T … and the tax incidence would be reserved;

FOR THE REASONS THAT the obligation to inform his [principal], the duty of loyalty and transparency and the concern for the ethics of any bank in particular business required to make known to Mr. T …, client benefiting from considerable and constant financial assistance since 1977 (…) that Crédit Lyonnais was ready to finance the operation, and therefore to continue to lend for Adidas, on the terms of limited recourse loans; (…) that the liquidator agents can rightly maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, if the Crédit Lyonnais Group had fulfilled its obligations as an agent banker by offering financing consisting of limited recourse loans to Groupe T … so that the capital gain would have been distributed in this case in the proportion mentioned above: 1/3 to the seller, 2/3 to the bank; whereas the sale of 78% of the capital of Adidas in December 1994 represents 3 billion 498 million francs; that the loss of opportunity to realize the gain which was deprived of the Group T … is constituted by the difference between the sale price of the 78% of the capital of Adidas in December 1994 (3 billion 498 million francs) and the price received in January 1993 (2 billion 85 million) or 1 billion 313 million of which one third (438 million) would have gone to the Tapie Group, two thirds (875 million) to Crédit Lyonnais; (…) that the amount of damages will therefore be fixed – after updating – at € 135,000,000;

 1. ALORS, firstly, THAT the judicial liquidators of SNC GBT exposed in their conclusions (pp. 11-12), that “the entry into the government of MB .. T …, [had] modified [é ] the strategy initially envisaged “between the latter and its bankers, in the sense that it was no longer possible to” consolidate the credit “of the acquisition of Adidas over a longer period and allow the group T .. . to retain ownership of Adidas until its initial public offering scheduled for 1995; that, far from claiming that Crédit Lyonnais would have had the obligation to offer new financing to the T group … in December 1992 in order to allow it to defer the sale of Adidas, the same legal representatives were suing the against Crédit Lyonnais a liability action for having wrongfully supported the T group … until 1992; that by affirming, consequently, that “the liquidator agents can rightly maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, if the Crédit Lyonnais group had respected its obligations as agent banker by offering the financing constituted by the limited recourse loans to the T group … “, which the said liquidator agents did not support at all, the court of appeal distorted the terms of the dispute , in violation of article 4 of the new code of civil procedure; 

2. WHEREAS thus falling automatically, to justify the granting to group T … of compensation equivalent to the capital gain made by the purchasers of Adidas, the plea according to which Crédit Lyonnais would have committed a fault by not offering to the group T … the financing that it was prepared to grant to the latter, without provoking the contradictory explanations of the parties, the Court of Appeal violated article 16 of the new code of civil procedure ;

3. ALORS, third part, THAT the banker is always free to propose or to grant a credit to which it sees fit; that by justifying the condemnation of CDR Créances and Crédit Lyonnais to compensate the loss for the T group … of a chance to be associated with any capital gains from Adidas on this ground that Crédit Lyonnais and its subsidiaries would have been required, in their capacity as agent banker, to “offer Groupe T … the financing” which would have enabled it to postpone the proposed sale and to sell later at a better price, the Court of Appeal ignored the principle of the autonomy of the will and the intuitu personae character of any credit agreement, in violation of Articles 1101, 1108, 1382 and 1147 of the Civil Code; 

4. ALORS, fourth part, THAT it emerged from one of the judgments under appeal of November 7, 1996, ruling on a request for condemnation of the SDBO for abusive support, still pending, that the SNC GBT and FIBT “ were in virtual insolvency in 1989 ”(p. 16); that the same judgment, finding that each was “incapable of meeting its payable liabilities without the permanent bank support of the SDBO” (p. 15), had deduced from this that the bank had improperly supported the companies of the Tapie group and the ordered to pay a provision of 600 million francs; that the report of the judicial expert Péronnet, given to the magistrate Eva Joly and regularly paid to the debates, noted that on the eve of the sale of Adidas, the group T … in its entirety was heading “irreversibly towards insolvency”, the expert noting “not only that BTF no longer had the financial means necessary for the recapitalization of Adidas, but could no longer justify that its bankers grant it the necessary advances” (p. 43); that, to justify the condemnation of CDR and Crédit Lyonnais, the judgment under appeal asserts on the contrary that these banks disregarded their obligations as agent bankers, for lack of having offered the T group … itself the financing they were prepared to consent to others for the acquisition of Adidas; that by pronouncing thus, without ever explaining the conformity of such financing to the duties of 

appeal notes that this one would have had to propose to the group T … to carry itself purchaser of Adidas to the financial conditions which it was ready to agree to other purchasers; that thus placing at the charge of the agent an obligation contrary to the very object of his mandate, the Court of Appeal violated Articles 1989 and 1991 of the Civil Code; 

6. ALORS, of sixth part, THAT it emerged from the conclusions of all the parts – those of the liquidators included / understood (pp. 12-13) – that following the appointment of MB … T … as Minister, whom he himself considered “incompatible with the maintenance of his stakes in the capital of Adidas”, he had signed a memorandum providing for “the disengagement of MT … and the transformation of its industrial heritage into a company with a vocation heritage ”(ibid.); that the exhibitor concluded that the thesis of the alleged “loss of a chance” for the group T … to defer the sale of its holdings in Adidas to sell them directly to Mr. Robert L …- D. .. was just as contrary to the declared wishes of the person concerned (“there are two solutions, either I leave BTF, or BTF leaves BTF GmbH ”, Le Monde, November 9, 1992, conclusions of the exhibitor, p. 56) than the agreements it had concluded with the SDBO; that the contested judgment, which, to justify the compensation for a lost profit by the group T …, asserts, without further explanation or examination of the means of the parties, that the Credit Lyonnais had committed a fault by not giving to the group T … the financial means to keep its participations in Adidas until 1994, violates article 455 of the new code of civil procedure. 

SECOND MEANS OF TERMINATION  

On the alleged violation by Crédit Lyonnais of the legal prohibition on acting as a counterparty (article 1596 of the civil code) 

The judgment under appeal is criticized for having condemned Crédit Lyonnais and CDR Claims to be paid to SELAFA MJA represented by Master X … and to Master Y …, ex officio, the sums of 135,000 000 € for damages and 300 000 € for their irrecoverable costs, in addition to the charge of the costs of first instance and of appeal, and AVAVIR says that the claims of the judicial Liquidators relating to the damage suffered for good reason of the judicial liquidation of the companies of the group T … and the tax incidence would be reserved;

 FOR THE REASONS THAT the acquisition of 9.90% additional by Clinvest constitutes an acquisition, by an intermediary, for the SDBO, as for the Credit lyonnais, acquisition for which these companies have not obtained the express authorization of their agent [ read: principal] even though Clinvest was already the owner of 10% of the capital of Adidas and that Mr. T … knew it; that this aspect of the sale of Adidas was not reported to the principal; that this acquisition brought to 19.9% ​​the share of Crédit Lyonnais through Clinvest in the capital of Adidas in accordance with the instructions of Mr. H …, who did not want the bank to appear as a managing shareholder of Adidas; 

1. ALORS, first, THAT the prohibition made to the agent to carry counterpart is of private interest and only sanctions counterparty transactions concealed in the principal; that in the present case, the liquidators of the companies of the group T … had not supported in their conclusions that the strengthening by Clinvest of its own participations in the capital of BTF GmbH (Adidas), achieved by the acquisition by an additional 9.90%, was constitutive of a counterparty transaction which would have been concealed from the principal and therefore unlawful under Article 1596 of the Civil Code; that they had, moreover, abandoned any request of this count against the company CDR Participations, coming to the rights of Clinvest, in their last conclusions; that 

2. ALORS, in any event, THAT the prohibition enacted by article 1596 of the civil code does not take place when the principal consents so that the agent carries counterpart by ratifying the operation; that in the present case, the exhibitor indicated in its conclusions (p. 68) that the company BTF SA was represented by an ad hoc representative – a lawyer – through whom it had concluded the act of February 12, 1993, on the sale of the 78% that it held in the capital of BTF GmbH for the benefit of various named buyers including the company Clinvest for 9.90%; that by affirming that this acquisition of a block of 9.90% by Clinvest was illegal under Article 1596 of the Civil Code, without investigating whether the company BTF SA, principal, does not

 AND ON THE REASONS THAT the acquisitions by Omega and Coatbridge of their units were carried out through a limited recourse loan agreement; that EFC, already a partner of Adidas, also benefited from such an agreement, like Ricesa (Mr. Robert L …- D …), who was above all the beneficiary of a purchase option on the entire capital of Adidas; that the limited recourse loan agreements had the following characteristics: fixed annual interest rate of 0.50%, capital repayable by December 31, [1997] at the latest, capital gain realized by shared cession, according to complex formulas , at a rate of one-third for the borrower and two-thirds for Crédit Lyonnais; that, as the CDR, which relies on the article 8-2 of the loan agreements to deny the carrying nature of the transaction, if at the maturity of the loan, the transfer of the units to a designated purchaser was not carried out, the borrower kept them; that it should be noted however that, in this case, the obligations of payment of the borrower towards the bank were definitively extinct; that from the combination of Articles 8 and III of the loan agreements, Article III providing for the repayment of the loan (in principal) in a single payment, no later than December 31, 1997, it can be deduced that if the securities of Adidas were not sold by the borrowers, they remained acquired without having to repay the amount of the loan, only the annual interest at the rate of 0.5% of the sums borrowed being due; that the borrowers being required to sell their holdings at the request of the bank, this assumption was likely to be carried out only if the titles Adidas proved to be worthless; that it is therefore argued, and rightly so, that this transaction constituted a carry transaction pending the exercise of the option granted until December 31, 1994, at the request of the bank, by all the partners in Mr. L …- D … that indeed, on the one hand, the disposition of the titles was not free and depended on the decision of Crédit lyonnais, the apparent owners not remaining ultimately in possession of their titles that if their value turned out to be zero and, on the other hand, Crédit Lyonnais fully financed the purchase, reserving two-thirds of the sale price; that this carrying character emerges moreover from the own declarations of Mr P …, Chairman and CEO of Crédit lyonnais, on May 10 and June 16, 1994 before the parliamentary inquiry committee, to which he explained that Crédit lyonnais had took control of Adidas with 54.9% of the capital (19.9% ​​+ 15% + 20%) by carrying out a carry transaction, remarks he qualified in a letter sent on March 21, 1995 to the expert Tourin, and that the CDR makes explicit by asserting that the head of the bank, who is not an expert in law but a banker, wanted to speak of an economic carry; that the new directors of Credit Lyonnais (Mr. P …) recognized the portage designed and carried out by and for the bank by the previous direction (Mr. H …); that with inexplicable consistency, the leaders of the defeasance structure, the Consortium de Réalisation, who have no responsibility for the reprehensible actions of Crédit lyonnais and its subsidiaries, and whose role was precisely to undo what the banks had gone wrong in fact, persist in defending objectionable practices, as in maintaining that the qualification of mandate cannot be given to the mission entrusted to the SDBO, the stake of the legal qualification being precisely the prohibition for the agent to acquire the principal’s titles; that they thus accredit the reality of the acquisition by an intermediary, and undermine the image, the reputation and the credibility of a financial institution which it has been said that he struggles to recognize his mistakes and accept the consequences; (…) it therefore appears that the Crédit lyonnais Group, by acting as counterparty through an intermediary, has not complied with the obligations resulting from its mandate; 

3. ALORS, third part, THAT only the granting of a right of intervention in social affairs for the benefit of the lender of money is likely to confer him the quality of associate of the business he finances; in the present case, the CDR Créances underlined in its conclusions (p. 88) that the limited recourse loan agreements concluded between Crédit Lyonnais and some of the purchasers of the shares of BTF GmbH (Adidas) had not conferred on the bank no right to intervene in the business of the transferred company, each of the borrowers remaining free to exercise their partner prerogatives at their convenience, without having to render an account to the bank; that, in order to decide that Crédit lyonnais had acquired the shares of BTF GmbH through intermediaries, the court of Appel retained that the purchasers of these shares were only the apparent owners, since they had conventionally renounced to freely dispose of their shares and that the bank had itself reserved two-thirds of the over- value that could be generated by the resale of these shares; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code; they had conventionally given up freely disposing of their shares and that the bank had itself reserved two-thirds of the capital gain that could be generated by the resale of these shares; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code; they had conventionally given up freely disposing of their shares and that the bank had itself reserved two-thirds of the capital gain that could be generated by the resale of these shares; that in determining by such reasons, unfit to justify the disqualification of these contracts of loans in society, the court of appeal, which did not find that the loans with limited recourse conferred on the bank a right of intervention in the social affairs of BTF GmbH, has not given a legal basis for its decision with regard to Articles 1596, 1832 and 1892 of the Civil Code;

4. ALORS, in any event, THAT article 8.3 of the limited recourse loan agreements provided: “regardless of the completion of any transfer operation, the Borrower shall have the option of prepaying all of this loan through compliance with a fifteen-day notice period. (…) Any reimbursement will be final and will be made for the balance of any account ”; that it follows from the clear and precise terms of this provision that the borrowers had the option to recover at any time the free disposal of their shares and to reserve all of any capital gain by substituting a conventional loan for the loan limited recourse; that by affirming that it resulted from the combination of Articles 8 and III of the loan agreements that the borrowers,

5. THEN, finally and abundantly, THAT the carry is the agreement by which a person acquires securities on behalf of a principal who undertakes to buy them back or have them bought back by a third party on a fixed date. and for a minimum price; that, considering that the loans granted by Crédit Lyonnais to some of the purchasers of shares in BTF GmbH (Adidas) constituted a carry transaction pending the exercise of the option granted until December 31, 1994, at the request of the bank, by all the associates to Mr. Louis-Dreyfus, however that it noted that ML …- D … had only been granted a forward purchase option on these shares, which he The result was that the co-purchasers of Adidas were not creditors of 

THIRD MEANS OF TERMINATION  

On the alleged violation by Crédit Lyonnais of its duties of information and loyalty

The judgment under appeal is criticized for having condemned Crédit lyonnais and CDR Receivables to be paid to SELAFA MJA represented by Master X … and to Master Y …, ex officio, the sums of 135,000 000 € for damages and 300 000 € for their irrecoverable costs, in addition to the charge of the costs of first instance and of appeal, and AVAVIR says that the claims of the judicial Liquidators relating to the damage suffered for good reason of the judicial liquidation of the companies of the group T … and the tax incidence would be reserved; 

FOR THE REASONS THAN the bank finally received on December 16, 1992 the mandate to seek a purchaser for the participation held by BTF in the capital of Adidas; that the will of Mr. T … and the need for him to find a purchaser was known since the beginning of the year 1992; that the will of Credit lyonnais to reduce its receivables with regard to the Group T … was going in the same direction; that finally, the SdBO concluded with Mr. Robert L …- D … the agreement of February 12, 1993 by which he acquired through Ricesa on this date 15% of the capital of Adidas, the sale of the other 63% being organized as indicated above; that at the same time, Mr. Robert L …- D … obtained consent from all holders of Adidas titles, by the through Crédit Lyonnais, a promise to purchase [read: promise to sell or purchase option], which had to be exercised by December 31, 1994 at the latest, at the price determined in February 1993, of 4 billion 485 million francs; that Mr. Robert L …- D …, in response to an interpellative summons, declared on May 27, 1999 that approached by Mr. F …, controller general of Clinvest, who had offered to ensure the management Adidas in September or October 1992, he had given his agreement on condition of buying the business, not having had any contact with B … T …, nor any relation with the offshore companies (Omega and Coatbridge); that in a letter of March 8, 2005, addressed to the mediator appointed by the court, Mr. Robert L …- D … confirmed his statements and specified that, asked to be the manager of Adidas, he had declined the proposal, in late November or early December 1992, that the discussions were then resumed at the beginning of January 1993 to lead to the acquisition of 15% of Adidas by Ricesa, together with a purchase option of the remaining 85%, in order to verify the potential of Adidas, the whole operation being concluded on a valuation of Adidas at 1 billion 300 million DM (4 billion 485 million francs), value retained by the ceding companies since the start of the negotiation; that the obligation to inform his agent [read: principal], the duty of loyalty and transparency and the ethical concern of any bank, in particular business, required to make known to Mr. T …, client benefiting of considerable and constant financial assistance since 1977, on the one hand, that a buyer had been contacted to ensure the management of Adidas, that he was possibly a buyer in the near term, two years at most, for a price of 4 billion 485 million francs, compared to the 2 billion 85 million francs of the mandate, and on the other hand, that Crédit Lyonnais was ready to finance the operation, and therefore to continue to lend to Adidas, on the terms of recourse loans limit ; that this information was provided neither to Mr. T …, nor to the company BTF, nor to the SNC GBT; that Crédit Lyonnais, like CDR and Clinvest, cannot seriously maintain that the article published in the weekly Le Nouvel Observateur from February 18 to 24, 1993 constitutes proof that they had informed B … T … of the conditions made to Robert L …- D …, this article indicating that Robert L …- D … had a call option on the securities held by public companies at a price 30% higher than the current price, completely inaccurate information since Mr. Robert L …- D … held a purchase option on all of the shares in the capital of Adidas and at a price higher by 67.68% (4 billion 485 million francs instead of 3 billion 474 million francs); that it therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client faithfully, did not respect the obligations resulting from his mandate; had a call option on the securities held by public companies at a price 30% higher than the current price, completely inaccurate information since Mr. Robert L …- D … held a call option on all of the Adidas shares at a price 67.68% higher (4 billion 485 million francs instead of 3 billion 474 million francs); that it therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client faithfully, did not respect the obligations resulting from his mandate; had a call option on the securities held by public companies at a price 30% higher than the current price, completely inaccurate information since Mr. Robert L …- D … held a call option on all of the Adidas shares at a price 67.68% higher (4 billion 485 million francs instead of 3 billion 474 million francs); that it therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client faithfully, did not respect the obligations resulting from his mandate; held a call option on all of the shares in Adidas capital and at a price 67.68% higher (4 billion 485 million francs instead of 3 billion 474 million francs); that it therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client faithfully, did not respect the obligations resulting from his mandate; held a call option on all of the shares in Adidas capital and at a price 67.68% higher (4 billion 485 million francs instead of 3 billion 474 million francs); that it therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client faithfully, did not respect the obligations resulting from his mandate;

1. ALORS THAN the agent responsible for selling social shares is required to bring to the attention of the principal that the elements likely to lead the latter to give up the proposed sale or to revise the conditions; that by retaining that it entered into the obligations of the SdBO to inform its principal that a prospective buyer was “possibly a buyer” at a term of two years for a price higher than that fixed by the principal, while it noted that it was only a simple option to purchase, insusceptible to lead to the slightest certainty of a future sale, the court of appeal did not draw the legal consequences which were evicted from its own findings, in violation of Articles 1992 and 1147 of the Civil Code; 

2. ALORS THAN the Court of Appeal which reproaches, moreover, the Credit Lyonnais not to have informed MB … T … that he was ready to finance the purchasers of Adidas, information by nature indifferent to the principal and that the bank did not have to bring to its knowledge, violates again articles 1992 and 1147 of the civil code;

3. WHEREAS this is all the more so as the banker, bound by a duty of confidentiality on the affairs of his correspondents, does not have to reveal, even to his own principal, the private agreements concluded by the purchasers of the shares that he is responsible for selling, as long as they relate to operations distinct from the planned contract; that it is free for him to finance the purchasers without being required to inform his principal; that in judging that Crédit Lyonnais had committed a fault by refraining from disclosing to its principal the fact that the bank was prepared to grant financing to some of the buyers of Adidas as well as the reciprocal arrangements by which some of these buyers had consented to one of 

4. ALORS, in any event, THAT the agent is not required to draw the attention of his principal on public information already known to him; that in the present case, the exhibitor poured into the debates, on the one hand, a press release of February 4, 1993, prior to the sale of Adidas, by which MB … T … had, in advance, publicly defended the legitimacy of Crédit Lyonnais’ intervention in the financing of buyers (prod. n ° 37) and, on the other hand, the statements by which Madame G … B …, usual counsel to MT .. , had indicated about the purchase option granted by the co-purchasers of Adidas to Mr. Robert L …- D …: “I obviously know the clause from the purchase of the shares of T … . But I don’t remember if I told him about it. It is more probable that I spoke about it to his deputy E … F … ”, CEO of the company BTF SA (prod. N ° 50); that, judging that Crédit Lyonnais had disregarded its obligations as agent by concealing such elements, without seeking, as it was invited to do, if their knowledge by the principal was not sufficiently established by the aforementioned documents, the court appeal once again deprived its decision of legal basis with regard to articles 1992 and 1147 of the civil code. 

FOURTH SUBMISSION OF TERMINATION  

on the damage and its compensation 

The judgment under appeal is criticized for having condemned Crédit lyonnais and CDR Receivables to be paid to SELAFA MJA represented by Master X … and to Master Y …, ex officio, the sums of 135,000 000 € for damages and 300 000 € for their irrecoverable costs, in addition to the charge of the costs of first instance and of appeal, and AVAVIR says that the claims of the judicial Liquidators relating to the damage suffered for good reason of the judicial liquidation of the companies of the group T … and the tax incidence would be reserved;

ON THE REASONS THAT “the liquidator agents can on the other hand, rightly, maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, if the Group Crédit Lyonnais had respected its obligations as an agent banker by offering the financing constituted by limited recourse loans to Groupe T … so that the capital gain would have been distributed in this case in the proportion mentioned above: 1/3 to the seller , 2/3 at the bank; whereas the sale of 78% of the capital of Adidas in December 1994 represents 3 billion 498 million francs; that the loss of opportunity to realize the gain which was deprived of the Group T … is constituted by the difference between the sale price of the 78% of the capital of 

1. ALORS, firstly, THAT the culpable termination of the negotiations not authorizing the failed party to seek compensation for the loss of a chance to achieve the gains that the contract could have provided (Com., November 26, 2003, Bull ., n ° 186), the refusal to initiate negotiations cannot, a fortiori, justify compensation for such damage; so that the Court of Appeal, which imputes to Crédit Lyonnais the fact of not having proposed to the group T … the financing which it had granted to the purchasers of Adidas, and which holds that the damage resulting therefrom for the group T … consists of a loss of chance to achieve the gains that this financing would have enabled him to hope, violates articles 1101, 1108, 1151 and 1382 of the civil code; 

2. ALORS, second hand, THAT IN any event, the judge which compensates a loss of chance must bring out the seriousness of the lost chance; in the present case, the exhibitor argued (conclusions pp. 105-109) that the alleged chance that the group T … would have directly sell its holdings to Mr Robert L …- D. .. and thus benefit from the capital gain collected in 1994 after the recovery of Adidas was in reality non-existent, as contrary, on the one hand, to the own wishes of MT .. and his group, which did not intend to keep in any case the quality of shareholder of Adidas, on the other hand, at the will of its banker who preferred to substitute “an Adidas risk for a T risk …”, finally, in the interest of the company Adidas it -even, whose recovery implied a complete change of shareholders and management; that the contested judgment which deduces the existence of a loss of chance from the sole assessment that it makes of it and which first refrains from ruling, in view of the conclusions of the parties and of the facts of the dispute, on the seriousness of the supposedly lost chance, deprives its decision of a legal basis with regard to Articles 1147 and 1382 of the Civil Code; 

3. ALORS, of third part, THAT the repair of a loss of chance must be measured with the lost chance and can not be equal to the advantage which would have procured this chance if it had been realized; that after having justified the existence of a loss of chance to realize a gain by this reason that “the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, if the Crédit Lyonnais Group had complied with its obligations as an agent banker by offering the financing consisting of limited recourse loans to Groupe T …, so that the capital gain would have been distributed in this case in the proportion mentioned above : 1/3 to the seller, 2/3 to the bank ”, the court of appeal, to assess it, retained that “the loss of opportunity to realize the gain which was deprived of the Group T … is constituted by the difference between the sale price of the 78% of the capital of Adidas in December 1994 (3.498 billion) and the price received in January 1995 (2.085 billion) or 1.313 billion, of which a third (438 million) would have gone to group T …, two thirds (875 million) to Crédit lyonnais ”; that by evaluating in this way this loss of chance of realizing a capital gain, without taking into account the hazard to which it was subject, the court of appeal violated articles 1149, 1151 and 1382 of the civil code. 313 billion of which a third (438 million) would have gone to group T …, two-thirds (875 million) to Crédit lyonnais ”; that by evaluating in this way this loss of chance of realizing a capital gain, without taking into account the hazard to which it was subject, the court of appeal violated articles 1149, 1151 and 1382 of the civil code. 313 billion of which a third (438 million) would have gone to group T …, two-thirds (875 million) to Crédit lyonnais ”; that by evaluating in this way this loss of chance of realizing a capital gain, without taking into account the hazard to which it was subject, the court of appeal violated articles 1149, 1151 and 1382 of the civil code.

  FIFTH MEANS OF TERMINATION  

On the ability of SNC GBT to rely on alleged violations in the execution of Adidas’ sales mandate and to seek redress for itself 

The contested judgment of AVIR says admissible the action brought by SELAFA MJA, represented by Master X … and Master Y … as judicial liquidators of SNC GBT, SA ACT, SNC FIBT, SA BTG and Mr. and Mrs. T … FOR having ordered Crédit Lyonnais and CDR Créances to pay them the sums of € 135,000,000 for damages and € 300,000 for of their irrecoverable costs, in addition to the charge of the costs of first instance and appeal, and AVAVIR says that the claims of the liquidators relating to the damage suffered as a result of the compulsory liquidation of the companies of the T group … and the tax incidence would be reserved; 

TO REASONS THAN the liquidators representatives request compensation for the damage that GBT would have suffered as a shareholder of its subsidiary BTF during the sale by BTF of its participation in ADIDAS; that representatives of GBT, which is no longer a shareholder of BTF, the liquidator agents cannot, in this capacity which they have lost since the ordinance of 25 October 1995 for the allocation of BTF shares to the SdBO, ordinance object of ‘an ongoing dispute, demands the capital gain resulting from the sale of which they would have been deprived; that, however, the memorandum dated 10 December 1992, the disputed date of which is irrelevant in this regard, signed by B … T … in a personal capacity, of BTF and GBT, provided for the sale of Adidas and the allocation of its price immediately and in priority to the payment of the sums due to the bank by GBT and BTF, which had contributed to the acquisition of Adidas; that this memorandum was followed by the signing of the contract of December 16, 1992 entrusting the SdBO with the sale of Adidas; that the link between the two acts is indisputable, one being the outright implementation of the other; that the agents liquidators are thus admissible to criticize the conditions under which was executed the convention of December 16, 1992 entrusting to the SdBO the care to sell Adidas in application of the memorandum; that they also base their action on compensation for the damage which they consider to have indirectly suffered as a result of the faulty performance of the contract of December 16, 1992,

1. ALORS THAT if the existence of a group of contract can justify the interest of the third party to act against a person with whom it is not directly bound by a contract, this circumstance does not give him by for all that quality to exercise against him an action of a contractual nature; in the present case, the judicial liquidators of SNC GBT based their action against Crédit lyonnais and CDR Créances on the violation of their contractual obligations as agent, as evidenced by the visa of articles 1116, 1134 , 1596, 1991 and 1992 of the Civil Code (see their conclusions, p. 78); that by holding their action admissible on the ineffective ground that there was an indisputable link between the mandate of December 16, 1992 and the memorandum of December 10, 1992,

2. ALORS QU’UN third to a contract can not rely on the violation of the obligations it contains without establishing that the breach invoked is also constituting a fault in its regard; in this case, the memorandum of December 10, 1992 was limited to providing for the allocation of the price of the future sale of Adidas to the clearance of debts of the company BTF SA and SNC GBT with regard to the SdBO; that this memorandum did not refer either to the terms of the transfer to intervene, or to the existence of a mandate between BTF SA and SdBO; that, holding that, solely by virtue of its status as a party to the memorandum of December 10, 1992, SNC GBT was entitled to seek compensation for the damage which it had personally caused by the SdBO’s breaches of its obligations.

AND AGAIN FOR THE REASONS THAT the liquidator agents [of SNC GBT] can rightly maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, if the Crédit lyonnais Group had complied with its obligations as an agent banker by offering the financing constituted by limited recourse loans to Groupe T … so that the capital gain would have been distributed in this case in the proportion mentioned above: 1/3 to the seller, 2/3 to the bank; whereas the sale of 78% of the capital of Adidas in December 1994 represents 3 billion 498 million francs; that the loss of opportunity to realize the gain which was deprived of the Group T … is constituted by the difference between the sale price of the 78% of the capital of Adidas in December 1994 (3 billion 498 million francs) and the price received in January 1993 (2 billion 85 million) or 1 billion 313 million of which one third (438 million) would have gone to Groupe T …, two thirds ( 875 million) to Crédit lyonnais; (…) that the amount of damages will therefore be set – after updating – at € 135,000,000; 

3. ALORS THAN the shareholder of a company is inadmissible to request a third party compensation for damage which is only the corollary of damage inflicted on this company; by affirming, on the contrary, that the judicial liquidators of SNC GBT, the majority shareholder of BTF SA, were entitled to request compensation for the damage which they considered to have indirectly suffered as a result of the wrongful execution of the contract of December 16, 1992, the court of appeal violated article 31 of the new code of civil procedure; 

4. ALORS, then, THAT the CDR Créances recalled in its conclusions (p. 61) that, according to the terms of the memorandum of December 10, 1992, the allocation of the available cash generated by the sale of Adidas and other industrial subsidiaries of BTF SA to the deleveraging of SNC GBT and FIBT was subject to the prior condition of a merger of the companies BTF SA, SNC GBT and SNC FIBT into a single entity, this condition being necessary to avoid an abuse of corporate assets to the detriment of BTF HER ; that the exhibitor also underlined (pp. 70-71) that the company BTF SA had expressly renounced the proposed merger, due to the hostility of its minority shareholders, of which it had informed the SdBO and the COB by letters from the January 28 and February 3, 1993; that 

5. ALORS, in any event, THAT the repair granted to the plaintiff can not exceed the limits within which the judge admitted his interest to act; that it follows from the very findings of the judgment under appeal that SNC GBT had no interest in acting unless part of the sale price that BTF SA would receive under the sale of Adidas would be assigned to the extinction of its own debts, under the conditions provided for in the memorandum of 10 December 1992; that the judgment under appeal, which itself recognizes that SNC GBT did not have the capacity to “request the recovery of the capital gain that could have been achieved by BTF SA following the sale of Adidas”, does not could, 

6. ALORS, in any event again, THAT IN omitting to specify which of the entities of the “Group T…” had lost a chance to achieve this capital gain and to indicate whether this entity was distinct from the “seller “(BTF SA), the Court of Appeal did not enable the Court of Cassation to ensure that the damage for which it was ordering compensation was indeed personal damage to SNC GBT, distinct from that suffered by its subsidiary BTF SA; that thus ruling, the Court of Appeal deprived its decision of legal basis with regard to Article 31 of the New Code of Civil Procedure;

7. ALORS, finally, THAT A possible acquisition by SNC GBT of Adidas securities held by its subsidiary BTF SA by means of limited recourse loans granted by Crédit Lyonnais would have characterized an abuse of corporate assets by illicit transfer of assets. – unrealized values ​​of the assets of a listed company (BTF SA), for the benefit of one of its shareholders (SNC GBT), so that by declaring SNC GBT admissible to be apprehended, as compensation , the product of this illicit assembly, the Court of Appeal violated Articles L. 242-6 of the Commercial Code and 31 of the new Code of Civil Procedure. 

SIXTH SUBMISSION OF TERMINATION  

The judgment under appeal is criticized, after having rejected the parties to their other claims, D’AVOIR says that those relating to the damage suffered as a result of the judicial liquidation of the entities represented by the judicial liquidators and the impact tax will be reserved; 

FOR THE REASONS THAT “on the request for compensation for the damage suffered by reason of the compulsory liquidation: the consolidated liabilities of the Tapie Group are established as follows in euros: 

– social debts 4,086,459

– tax receivables 37,065,912

– customs debts 1,035,896

– bank receivables 167,567,772

– miscellaneous receivables 7,054,450

                                         ————-

                                     216,810,489

 

that the asset comprising the compensation allocated today and the assets to be valued, that is to say the hotel in Cavoye where Mr. and Mrs. T reside … and the furniture made up of a certain number of ‘art objects, it is not possible to say to date that judicial liquidation could have been avoided; that it cannot currently be ruled on this request ”; 

1. ALORS, first hand, THAT the judges can not stay ruling pending an event which is determined neither in its object, nor as to the term to which it will occur; that they can not either stay ruling pending an event whose realization is subordinated to the purely potestative will of a party; that in the present case, the judgment notes that, failing the judicial Liquidators to indicate to the court the value of the assets constituted by the Hôtel de Cavoye and the furniture and works of art therein, “it it is not possible to say so far that the liquidation could have been avoided ”; that in the light of these findings, the judgment under appeal which decides to stay the ruling pending the 

2. ALORS, secondly, THAT by so ruling, the contested judgment which, instead of dismissing the applicants from their action, suspends the proceedings sine die to allow them to present new documents and conclusions to the effect to better justify the reality of the damage of which they were failing in the administration of the evidence, violates articles 6, 9, 377 and following of the new code of civil procedure, together article 1315 of the Civil code. 

 


 

SUPPLEMENTARY MEANS



Pleas produced by SCP Vier et Barthélemy, lawyer with the Advice for Crédit lyonnais, plaintiff in the main appeal n ° 06-11.307
  

 

FIRST MEANS OF TERMINATION 

(on the interest of the liquidators of the companies of the B … T … group to bring compensation for the alleged damage caused by the circumstances of the sale of the shares of BTF GmbH)

 The plea criticizes the judgment under appeal D’AVOIR says admissible the action initiated by SELAFA MJA represented by Maître Jean-Claude X … and by Maître Didier Y … as liquidators of SNC GBT, of SA ACT, SNC FIBT, SA BTG and Mr. and Mrs. B … T …; 

TO REASONS THAN the liquidators representatives requested compensation for the damage that GBT would have suffered as a shareholder of its subsidiary BTF during the sale by BTF of its participation in Adidas; that representatives of GBT, which was no longer a shareholder of BTF, the liquidator agents could not, in this capacity which they had lost since the ordinance of 25 October 1995 for the allocation of BTF shares to SDBO, ask for more- value resulting from the sale, of which they would have been deprived; that however, the memorandum dated 10 December 1992, the disputed date of which was irrelevant in this regard, signed by B … T … in a personal capacity, BTF and GBT provided for the sale of Adidas and the allocation of its price immediately and in priority to the payment of the sums due to the bank by GBT and BTF, which had contributed to the acquisition of Adidas; that this memorandum had been followed by the signing of the contract of 16 December 1992 entrusting the SDBO with the sale of Adidas; that the link between the two acts was indisputable, one being the outright implementation of the other; that the agents liquidators were therefore admissible to criticize the conditions under which had been executed the convention of 16 December 1992 entrusting to the SDBO the care to sell Adidas, in application of the memorandum; that they also based their action on compensation for the damage which they considered to have indirectly suffered as a result of the faulty performance of the contract of December 16, 1992, without asking for the increase in the capital gain that could have been realized by BTF following the sale of Adidas; that the action of the liquidator agents was therefore admissible (judgment, p. 12); 

ALORS, ON THE ONE HAND, THAT a company is inadmissible to request compensation for damage suffered by another company which it holds the social shares; that by declaring admissible the action taken by the legal representatives of GBT in compensation for damage allegedly suffered by BTF, a company of which GBT had been a shareholder, the Court of Appeal violated Article 31 of the new Code of Civil Procedure ;

THEN, ON THE OTHER HAND AND IN ANY CASE, WHEREAS having noted the loss, by GBT, of its capacity as shareholder of BTF since October 25, 1995, following the allocation of BTF shares to SDBO, and since it was also common ground that the proceedings instituted by the judicial liquidators of the Tapie group and of the spouses T … for the purpose of ordering Crédit lyonnais, SDBO and Clinvest to pay them an overall compensation of 2 500,000,000 F for various alleged faults, had been introduced by deed of February 21, 1996 (cf. judgment rendered by the Paris Commercial Court on November 7, 1996, p. 4), i.e. subsequent to GBT’s loss of its capacity as shareholder of BTF, the court of appeal, which refused to infer the absence ofcurrent interest of GBT and its liquidators in complaining about the circumstances of the sale by BTF of the shares of BTF GmbH, violated Article 31 of the new Code of Civil Procedure; 

THEN, THIRD PART, THAT by deducting the interest in acting of GBT and its liquidators from the application of a memorandum providing for the allocation by BTF of the price of the future sale of Adidas to the payment of the sums due by GBT to the SDBO, hypothetical application since depending on the possibility for BTF to actually carry out this assignment, once the transfer has been made, or even on its willingness to respect the terms of the memorandum, the Court of Appeal retained an interest in acting purely if necessary. , in violation of article 31 of the new code of civil procedure;

 THEN, FROM THE FOURTH PART, THAT by not seeking, as the Crédit Lyonnais had invited it to do (conclusions, pp. 33 et seq.), Whether the execution of the memorandum providing for an allocation of the proceeds from the sale of shares in BTF GmbH (which itself owns Adidas) held by BTF for the reimbursement of assistance granted by SDBO to GBT and FIBT, was not subject to the prior fulfillment of a condition relating to the merger of the latter two companies and BTF , since BTF was a listed company and the capital gain resulting from the sale of shares belonging to it could not, without injury to the interests of minority shareholders, be allocated to the payment of the debts of third-party companies, one of them –GBT– were it a shareholder of BTF, and if, as a result, theThe rapid abandonment of the proposed merger between the three companies concerned had not rendered the memorandum null and void and deprived GBT of any interest, even purely possible, in complaining about the circumstances of the sale by BTF of the shares of BTF GmbH, the court of appeal deprived its decision of legal basis with regard to article 31 of the new code of civil procedure;

THEN, OF FIFTH PART, THAT by affirming purely and simply that the judicial representatives of GBT would be admissible to seek compensation for an indirect damage suffered as a result of the alleged faulty performance of the contract of December 16, 1992, without however specifying no content of this alleged prejudice by ricochet, the court of appeal deprived its decision of legal basis with regard to article 31 of the new code of civil procedure;

THEN, FINALLY AND SUBSIDIARILY, having noted that the memorandum from which the interest in acting of GBT and its liquidators would have proceeded provided for the allocation of the price of the sale of Adidas to the payment of the sums due to SDBO both by BTF and by GBT, from which it resulted that GBT had at most an interest in acting in proportion to the fraction of the price of the sale of the shares of BTF GmbH to come back to it after assignment, the court of appeal, which did not investigate what should have been this fraction, deprived its decision of legal basis with regard to article 31 of the new code of civil procedure.

SECOND MEANS OF TERMINATION

(on the determination of the persons having the capacity of representative)

The plea accuses the judgment under appeal of having condemned Crédit Lyonnais to pay SELAFA MJA represented by Master Jean-Claude X … and Master Didier Y …, ex-officio, the sum of 135,000,000 €;

FOR THE REASONS THAT the companies Credit Lyonnais, SDBO and Clinvest had separate legal personalities and were a priori required only by the acts to which they had each subscribed; that however, as regards the acts which concerned the loans granted to the various companies of the group T …, then the sale of Adidas, the transactions had been carried out by the three companies of the Crédit lyonnais group according to the specialized activity of each of them, and with the agreement of the parent company, Crédit Lyonnais, because of the importance of the transactions concerned; that thus Credit Lyonnais recognized having given its agreement to SDBO to finance the initial purchase in 1991 of Adidas by B … T …; that the direction of the industrial studies of Crédit Lyonnais of the time, was in charge of the studies preliminary to the agreements, they had been used as basis for the agreement of December 1992 and the sale of 1993; that the loans had sometimes been granted by Crédit Lyonnais and sometimes by SDBO, the shareholdings being entrusted to Clinvest, a wholly-owned subsidiary of Crédit Lyonnais; that the decisions had been taken at the top by Crédit lyonnais: as evidenced by the note of November 17, 1992 addressed to Mr. Haberer, then president of Crédit lyonnais, relating to the restructuring of the capital of BTF GmbH (Adidas) seeking its agreement for an operation which aimed to replace a group B … T … risk by an Adidas risk “which seemed to be of much better quality”, note which had been approved by Mr. Haberer and applied; that then, Clinvest had increased its stake in Adidas from 10% to 19.9% ​​in accordance with the decision of Mr. H … who had referred to a note of December 9, 1992 and gave the requested authorization indicating “it is conforms to the scheme imagined “by the previous note of November 17, 1992; that the agreements, entitled loans with limited recourse, which had allowed the purchasers chosen by SDBO in execution of its mandate, had been granted by the Credit Lyonnais; that similarly, the memorandum of December 10, 1992 had provided for the assistance of Crédit Lyonnais for a loan of 100,000,000 F (Article 11); that the protocol of March 13, 1994, which intended to end the banking relationship between Crédit Lyonnais and Mr. and Mrs. Tapie and their companies, was signed by Mr. François Gilles, Managing Director of Crédit Lyonnais, for Crédit Lyonnais as well as for SDBO; that the loan granted on December 20, 1994 to Sogedim (company of Mr. Robert L ….- D … incorporated to acquire Adidas) indicated article 3: “the borrower wishes to acquire the entire capital of Adidas. He requested to the lender 1,110,000 DM and to the Phoenix the balance of this financing 190,000 DM “; that the 1,300,000 DM (4 billion 485 million F) had been paid by the Crédit Lyonnais lender, into the account of Clinvest which had paid into the accounts indicated by Crédit Lyonnais, Clinvest, Matinvest, Ricesa, Omega, Metropole and Coatbridge, companies holding shares sold to Mr. Robert L …- D …; that finally, both in front of the press, but especially in front of the parliamentary commission of inquiry, the chief executive officer of Crédit lyonnais, Mr. Peyrelevade had reported on the action of Crédit Lyonnais and its subsidiaries; that the mandate had been conceived, carried out and it had been reported as well by the Credit lyonnais as by SDBO and Clinvest, companies subsidiaries of the Credit lyonnais, which were all three obliged by this contract (judgment, pp. 14 and 15); action by Crédit Lyonnais and its subsidiaries; that the mandate had been conceived, carried out and it had been reported as well by the Credit lyonnais as by SDBO and Clinvest, companies subsidiaries of the Credit lyonnais, which were all three obliged by this contract (judgment, pp. 14 and 15); action by Crédit Lyonnais and its subsidiaries; that the mandate had been conceived, carried out and it had been reported as well by the Credit lyonnais as by SDBO and Clinvest, companies subsidiaries of the Credit lyonnais, which were all three obliged by this contract (judgment, pp. 14 and 15);

WHEREAS by retaining that Crédit Lyonnais and Clinvest would have been bound by the alleged mandate given to the SDBO alone, without characterizing the existence of a substitution of agent or of a tacit mandate conferred on Crédit Lyonnais and Clinvest and in based in this regard exclusively on inoperative circumstances relating, on the one hand, to the granting of loans by Crédit Lyonnais and the acquisition of holdings by Clinvest, acts carried out by these companies in their own name and for their own account and therefore unsuitable for characterizing a mandate, on the other hand, for the control of the capital of SDBO and Clinvest by Crédit Lyonnais, which did not, however, make it possible to assimilate the second to the first, the Court of Appeal has violated Articles 1165 and 1984 of the Civil Code. 

THIRD MEANS OF TERMINATION  

(on compliance by the agent with the ban on acting as a counterparty) 

The plea criticizes the judgment under appeal FOR having condemned Crédit Lyonnais to pay SELAFA MJA represented by Master Jean-Claude X … and Master Didier Y …, ex-officio, the sum of 135,000,000 €; 

ON THE REASONS THAT the mandate given entailed for the agent the obligation of loyalty, transparency, information, accountability and the obligation referred to in Article 1596 of the Civil Code, in the form of a ban for the agent to be to be the purchaser himself or by an intermediary, of the goods which he is responsible for selling; that the acquisition of an additional 9.90% by Clinvest constituted an acquisition by intermediary for SDBO, as for Crédit lyonnais, an acquisition for which these companies had not obtained the express authorization of their principal even though Clinvest had already was the owner of 10% of the capital of Adidas and that Mr. T … would have known; that this aspect of the sale of Adidas had not been reported to the principal; that this acquisition had brought to 19.9% ​​the share of Crédit Lyonnais through Clinvest in the capital of Adidas in accordance with the instructions of Mr. H … who did not want the bank to appear as a managing shareholder of Adidas ; that the acquisitions by Omega and Coatbridge of their units had been carried out through a limited recourse loan agreement; that EFC, already a partner of Adidas, had also benefited from such an agreement like Ricesa (Mr. Robert L …- D …), who was above all the beneficiary of a purchase option on the entire capital of ‘Adidas; that the limited recourse loan agreements had the following main characteristics: fixed annual interest rate of 0.50%, principal repayable no later than December 31, capital gain realized by the shared sale, according to complex formulas, at a rate of one-third for the borrower and two-thirds for Crédit Lyonnais; that as the CDR rightly maintained, which relied on Article 8-2 of the loan agreements to deny the carrying nature of the transaction, if, at the maturity of the loan, the transfer of the shares to a buyer designated was not carried out, the borrower kept them; that it should be noted however that, in this case, the obligations of payment of the borrower towards the bank were definitively extinct; that of the combination of Articles 8 and III of the loan agreements, Article III providing for the repayment of the loan (in principal) in a single payment, no later than December 31, 1997, it was deduced that if the titles of Adidas were not sold by the borrowers, they remained acquired without having to repay the amount of the loan, only the annual interest at the rate of 0.50% of the sums borrowed being due; that the borrowers being required to sell their holdings at the request of the bank, this assumption was likely to be carried out only if the titles Adidas prove to be worthless; that it was therefore rightly maintained that this operation constituted a carry transaction pending the exercise of the option granted until December 31, 1994 at the request of the bank, by all the partners to Mr. X. ..- Dreyfus; that in fact, on the one hand, the disposition of the securities was not free and depended on the decision of Crédit Lyonnais, the apparent owners only ultimately remaining in possession of their securities if their value turns out to be zero and, on the other hand, Crédit Lyonnais fully financed the purchase, reserving two-thirds of the sale price; that this carry-over character emerged moreover from the own declarations of Mr. Peyrelevade, CEO of Crédit Lyonnais, on May 10 and June 16, 1994 before the parliamentary commission of inquiry, to which he explained that Crédit Lyonnais had taken control Adidas with 54.9% of the capital (19.9% ​​+ 15% + 20%) by carrying out a carry transaction, a statement he had qualified in a letter sent on March 21, 1995 to the expert Tourin and that the CDR explained by asserting that the head of the bank, who did not was not an expert in law but a banker, had wanted to speak of an economic portage; that the new leaders of Credit Lyonnais (Mr. P …) had recognized the portage designed and carried out by and for the bank by the previous direction (Mr. H …); that they thus accredited the reality of the acquisition by an intermediary (judgment, pp. 4 to 16); 

THEN, ON THE ONE HAND, THAT by not seeking, as the Crédit Lyonnais had invited it (conclusions, p. 26), whether, in the state of notarial deeds freely signed by a representative of BTF, this the latter had not fully known and approved the transfer of shares that it had granted to Clinvest and if it did not result from this that the acquisition made by Clinvest was, in the absence of an occult nature, not capable of constituting a illegal counterpart, the court of appeal deprived its decision of legal basis with regard to article 1596 of the civil code; 

THEN, ON THE OTHER HAND, THAT in the state of conclusions (p. 30, pp. 42 et seq.) By which Crédit Lyonnais showed that the essential element of carry was lacking since it itself did not had, under the terms of the limited-recourse loan agreements, entered into no obligation to acquire or cause to be acquired the shares and that he had even refrained from presenting a buyer whom he would control or for whom he would be the agent, the court appeal, which did not characterize the existence of a promise to redeem subscribed by the alleged beneficiary of the portage, deprived its decision of legal basis with regard to articles 1134 and 1596 of the civil code; 

THEN, FROM THE THIRD PART, THAT each of the limited-recourse loan agreements granted by Crédit Lyonnais to several of the purchasers of BTF GmbH shares stipulated the possibility of a “voluntary early repayment” by the borrower “regardless of the completion of any transfer operation ”,“ final ”repayment and relating to“ the entire (…) loan ”(Article 8.3); that in the state of this possibility offered to each borrower to keep the units acquired by means of the loan subject to an early repayment of the latter, the Court of Appeal, which held that the purchasers of units could not remain in possession of their securities only if their value turned out to be zero, distorted the limited-recourse loan agreements and violated Article 134 of the Civil Code; 

THEN, FINALLY, THAT by deducing the existence and the qualification of alleged carrying agreements from the extrajudicial confession that the leaders of Crédit Lyonnais would have made, the Court of Appeal violated Articles 1354 and 1355 of the Civil Code . 

FOURTH SUBMISSION OF TERMINATION

 (on the alleged breach of the agent’s obligations) 

The plea criticizes the judgment under appeal FOR having condemned Crédit Lyonnais to pay SELAFA MJA represented by Master Jean-Claude X … and Master Didier Y …, ex-officio, the sum of 135,000,000 €; 

TO REASONS THAN the bank had received definitively on December 16, 1992 the mandate to seek a purchaser for the participation held by BTF in the capital of Adidas; that the will of Mr. T … and the need for him to find a purchaser were known since the beginning of 1992; that the will of Credit Lyonnais to reduce its receivables with regard to the group T … was going in the same direction; that finally, SDBO had concluded with Mr. Robert L …- D … the agreement of February 12, 1993 by which he had acquired through Ricesa on that date, 15% of the capital of Adidas, the sale of the other 63% of the capital of Adidas being organized as previously indicated; that at the same time, Mr. Robert L …- D … s’ a promise to purchase was made by all holders of Adidas shares, through Crédit Lyonnais, to be exercised no later than December 31, 1994, at the price determined in February 1993, of 4 billion 485 million francs; that Mr. Robert Louis-Dreyfus, in response to an interpellative summons, had declared on May 27, 1999 that he was approached by Mr. F …, controller general of Clinvest, who had offered to take over the management of Adidas in September or October 1992, he had given his agreement on condition of buying the business, not having had any contact with B … T …, nor any relation with the offshore companies (Omega and Coatbridge); that in a letter of March 8, 2005, addressed to the mediator appointed by the court, Mr. Robert L …- D … had confirmed his statements and specified that, when asked to be the manager of Adidas, he had declined the proposal, at the end of November or the beginning of December 1992, that the discussions had then been resumed at the beginning of January 1993 to lead to the acquisition of 15 % of Adidas by Ricesa together with a purchase option of the remaining 85%, in order to verify the potential of Adidas, the whole operation being concluded on a valuation of Adidas at 1 billion 300 million DM (4 billion 485 million F), value retained by the ceding companies since the start of negotiations; that the obligation to inform his principal, the duty of loyalty and transparency and the concern for the ethics of any bank, in particular business, required to make Mr. T … known, client benefiting from considerable and constant financial assistance since 1977 on the one hand, that a buyer had been contacted to ensure the management of Adidas, that he was possibly a buyer in the near term, two years at most, for a price of 4 billion 485 million francs, compared to the 2 billion 85 million francs of the mandate, and on the other hand, that Crédit Lyonnais was ready to finance the operation, therefore to continue to lend to Adidas, on the terms of limited recourse loans; that this information had been provided neither to Mr. T … nor to the company BTF, nor to the SNC GBT; that Crédit lyonnais like CDR and Clinvest could not seriously support that the article published in the The weekly Le Nouvel Observateur from February 18 to 24, 1993 constituted proof that they had informed B … T … of the conditions made to Robert L …- D …, this article indicating that Robert L. ..- D … had a call option on the securities held by public companies at a price 30% higher than the current price, completely inaccurate information since Mr. Robert L …- D … held an option purchase on the entire capital of Adidas and at a price higher by 67.78% (4 billion 485 million francs instead of 3 billion 474 million francs); that it appeared consequently that the group Credit Lyonnais, by carrying counterpart by persons interposed and by not informing loyally his client had not respected the obligations resulting from his mandate; that became the owner of all Adidas in 1994, Mr. Robert L …- D … had been the only one, with the bank that had lent him the funds to acquire 100% of Adidas before the IPO , to be able to benefit from the fruits of this introduction, bearing in mind that Crédit Lyonnais’ gain during this operation was between 1 billion 100 million F and 1 billion 300 million; that the liquidator agents could rightly maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D … in December 1994, 

THEN, ON THE ONE HAND, THAT by retaining that the mandate to seek a purchaser would create, at the expense of the agent, the latter also the usual banker of the principal, an obligation to offer the financing of the identified transfer opportunities , the Court of Appeal violated Articles 1134 and 1984 of the Civil Code. 

THEN, ON THE OTHER HAND AND IN ANY CASE, THAT having noted “the will of Mr. T … and the need for him to find a purchaser (…) known since the beginning of 1992”, the court of ‘appeal could not blame the agent for not having proposed to his principal the financing of a subsequent sale to Mr. L …- D … which the latter was considering the possibility, without characterizing the reasons for which such financing would have was necessary and the situations in which it should have been implemented; that by confining itself to refer to the obligation to propose the financing of a subsequent cession, the Court of Appeal deprived its decision of legal basis with regard to Article 1147 of the Civil Code; 

THEN, THIRD PART AND IN ANY CASE, THAT it was demonstrated by the conclusions of Crédit Lyonnais (pp. 20 et seq., Spec. P. 22) that the T group … found in a financial situation and seriously hampered economy at the end of 1992 and at the beginning of 1993; that by affirming purely and simply that Crédit Lyonnais would have been required, as agent, to inform its principal that it was prepared to finance the operation by continuing to grant financial assistance, without examining whether the granting of a bank assistance additional to the group T … would not have been faulty as possibly constitutive of an abusive support, the court of appeal deprived its decision of legal basis with regard to article 1147 of the civil code; 

THEN, FROM THE FOURTH PART, THAT having noted that the existence, in favor of Mr. L …- D …, of options to purchase all the shares making up the capital of BTF GmbH not immediately acquired by had been made public to him in the press in February 1993, with the indication that these options provided for an acquisition price higher than that adopted on February 12, 1993 during the sale of BTF GmbH by the T group … , from which it resulted that the taking into consideration by Mr. L …- D … of a possible subsequent capital gain, likely to justify the exercise of these options, was known from the outset and that the information of the companies of the group T … and of the spouses T … had necessarily been sufficient in this regard, the court of appeal could not accept the existence offailure by the agent to fulfill his obligation to provide information without violating Article 1147 of the Civil Code; 

THEN, FINALLY, THAT the liquidators of the companies of the group B … T … had not raised the plea based on the alleged obligation, for the banker agent, to propose to his principal a financing of the presented operation, so that by raising this plea ex officio and without subjecting it to the adversarial discussion of the parties, the court of appeal violated article 16 of the new code of civil procedure. 

FIFTH MEANS OF TERMINATION  

(on the causal link and compensation for damage) 

The plea criticizes the judgment under appeal FOR having condemned Crédit Lyonnais to pay SELAFA MJA represented by Master Jean-Claude X … and Master Didier Y …, ex-officio, the sum of 135,000,000 €;

FOR THE REASONS THAT the loss of chance to achieve the gain which had been deprived of the group T … was constituted by the difference between the sale price of 78% of the capital of BTF GmbH in December 1994 (3 498 000 000 F) and the price received in January 1993 (2,085,000,000 F) or 1,313,000,000 F of which one third (438,000,000 F) would have gone to group T …, two thirds (875,000,000 F) to Crédit Lyonnais; that as requested by the liquidators, this sum should be updated; that the INSEE cost of living index since January 1, 1995 had increased by 16.5%, the CAC 40 index by 137%, the Adidas share by 370%, a sum invested at a fixed rate, at 7, 5% in 1995 at compound interest, 206%; that the amount of damages would therefore be fixed at € 135,000,000 (judgment, p. 19); 

ALORS, ON THE ONE HAND, THAT the absence of an offer to conclude or negotiate a contract is not the cause of the prejudice consisting in the loss of a chance to achieve the gains that could be expected from the conclusion of the contract ; that by retaining that the absence of a proposal by the agent banker to his client of financing allowing the latter to keep the stake that he had decided to sell would have been the cause of damage consisting of a loss of opportunity to realize a capital gain by a deferred sale of this participation, the Court of Appeal violated Articles 1147 and 1149 of the Civil Code; 

THEN, ON THE OTHER HAND, THAT Crédit Lyonnais demonstrated (conclusions, p. 47) that if BTF had not sold its stake in February 1993, the latter’s banks, pledge creditors, would have been entitled to enforce their pledge or even to be awarded it, in the context of an increasingly degraded context for Adidas and a loss by BTF of the confidence of its bankers and the impossibility for it to financially support its subsidiaries; that by not seeking, as it was thus invited to do, whether the chance, allegedly lost by the companies of the Tapie group, of retaining a stake in the capital of BTF GmbH was not devoid of seriousness, the court of appeal deprived its decision of legal basis with regard to articles 1147 and 1149 of the civil code; 

THEN, IN ANY CASE, THAT by fixing the alleged loss of chance to the entire advantage that this chance would have obtained if it had occurred, the Court of Appeal violated Articles 1147 and 1149 of the Civil Code . 

SIXTH SUBMISSION OF TERMINATION  

(on reserved requests) 

The plea criticizes the judgment attacked D’AVOIR reserved the request relating to the damage suffered due to the judicial liquidation of the entities represented by the liquidator agents and the request relating to the tax incidence; 

TO REASONS THAN on the request for compensation for the damage suffered due to the judicial liquidation, the consolidated liabilities of the group T … amounted to 216 810 489 €; that the assets comprising the compensation allocated today and the assets to be valued, namely the hotel de Cavoye where Mr. and Mrs. Tapie resided and the furniture made up of a certain number of works of art, there is no it was not possible to say so far that the judicial liquidation could have been avoided; that it could not currently be ruled on this request (judgment, pp. 19 and 20); that on the request relating to the tax incidence, the taxation of the amount allocated cannot be determined at present, there was no need to appoint an expert for this purpose,

WHEREAS by refusing to exercise its power of appreciation on the heads of claim that it was incumbent on it to reject in the absence of sufficient evidence and on which it could, as necessary, entrust an investigative measure to a technician, the court of appeal vitiated its decision with a denial of justice and violated Article 4 of the Civil Code. 


Plea produced by SCP Piwnica and Molinié, lawyer advising for the company MJA, represented by Mr X …, ex officio, and Mr Y …, ex officio, applicants for cross-appeals n ° 06-11.056 and 06-11.307 

 

The judgment under appeal is criticized for having limited to the sum of one hundred and thirty five million euros the judgment for damages pronounced against Crédit Lyonnais and CDR Créances, for the benefit of the judicial liquidators;

FOR THE REASONS THAT the liquidator agents can rightly maintain that the 78% of the capital of Adidas could have been sold directly to Mr. Robert L …- D …, in December 1994, if the Crédit lyonnais group had respected its obligations as an agent banker by offering the financing constituted by loans with limited recourse to group T … so that the capital gain would have been distributed in this case in the proportion mentioned above, one third to the seller, two thirds to the bank; that the loss of opportunity to realize the gain which was deprived of the group T … is constituted by the difference between the sale price of the 78% of the capital of Adidas in December 1994 and the price perceived in January 1993, that is to say a billion 313 million of which a third (438 million) would have gone to group T …; 

ALORS THAN one who is responsible must fully repair the damage suffered by the victim; that he could not keep part of the profit of which, through his fault, the victim was deprived; in the present case, the Court of Appeal held that, if the Crédit lyonnais group had complied with its obligations as an agent banker, the 78% of the capital of Adidas could have been sold directly to Mr. Robert L … -D …; that by refusing nevertheless to allocate to the judicial liquidators damages corresponding to the totality of the capital gain realized on the occasion of the resale of the shares to Mr. Robert L … D …, the court of The appeal did not draw the legal consequences that were evicted from its own findings and, therefore, violated Article 1382 of the Civil Code. 

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