Case Note: Hunkemöller LME Dispute Tests The New Dutch Discovery Framework

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.