Last January, The Amsterdam District Court rejected a request by eleven investment funds to obtain access to documents and examine directors as witnesses in connection with the restructuring of Hunkemöller. The funds sought these preliminary evidentiary measures in preparation for intended proceedings against former directors and a shareholder of the group. The judgment has recently been the subject of a case note published in Jurisprudentie Onderneming & Recht.
The case concerns a so-called Liability Management Exercise (LME), including an up-tiering transaction under which a group of lenders obtained a higher-ranking position within Hunkemöller’s financing structure. The investment funds argued that they had been disadvantaged by the transaction and that the directors and shareholders involved had acted unlawfully. They therefore requested extensive disclosure of internal documents and sought a preliminary examination of the directors as witnesses.
The Court dismissed both requests. It held that the funds had not sufficiently substantiated the alleged director and shareholder liability. In addition, it had not yet been established that the underlying transactions were unlawful or that any of the relevant entities were liable. Proceedings relating to the transactions, including litigation in the United States, are still ongoing.
The Court further found the requests to be premature and speculative. Granting them would, in its view, amount to an impermissible fishing expedition aimed at uncovering potential evidence without sufficiently concrete indications of liability. As a result, both the document disclosure request and the application for witness examinations were rejected.
The decision is noteworthy as, to the authors’ knowledge, it is the first Dutch judgment addressing allegations arising from an LME transaction. The case highlights the challenges that investors may face when seeking evidence to support director or shareholder liability claims in the context of complex cross-border restructurings.
This article was first published in JOR afl. 4, 2026, SDU
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