Puede que si la Juez ve indicios de irresponsabilidad hacia los accionistas que no tengamos ni siquiera que llegar a elecciones de BOD.
From the U.S. Trustee Program-Dept. of Justice
3-4.6 - EQUITY SECURITY HOLDERS' COMMITTEE
The Bankruptcy Code (11 U.S.C. § 1102(a)(1)) authorizes the appointment by the United States Trustee of additional committees, including a committee of equity security holders. If the United States Trustee declines to exercise the discretion to appoint a supernumerary committee, the court may order the appointment of a committee by the United States Trustee. 11 U.S.C. § 1102(a)(2). While there is no statutory requirement to do so, practitioners should be encouraged to submit requests for additional committees first to the United States Trustee prior to moving for relief from the court, as this may achieve the desired result without the need for litigation. If a party in interest moves the court for an order directing the appointment of a committee, the court can grant the relief only upon finding that the appointment of the additional committee is "necessary to assure adequate representation" of the movant's interests. In re Edison Bros. Stores, Inc., 1996 WL 534853 (D. Del. Sept. 17, 1996); In re Lykes Bros. S.S. Co., 200 B.R. 933 (M.D. Fla. 1996). If the court directs the appointment, the United States Trustee actually selects and appoints the committee.
The appointment of an equity committee is the exception rather than the rule, with the burden on the requesting party in interest to demonstrate the need for adequate representation. See Edison Bros, Stores, Inc., supra; In re Johns-Manville Corp., 68 B.R. 155, 158 (S.D.N.Y. 1986). While equity holders clearly have an interest different from that of unsecured creditors, this is not a sufficient reason to routinely establish an equity committee. There are many sources of adequate representation aside from the appointment of an official committee. See Johns-Manville, 68 B.R. at 163; In re Hills Stores Co., 137 B.R. 4 (Bankr. S.D.N.Y. 1992). Generally, the board of directors acts for the shareholders. Once a company becomes insolvent, the directors still owe a fiduciary duty to the shareholders. Commodities Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 355 (1985); In re Bush Terminal Co., 78 F.2d 662, 665 (2d Cir. 1935); In re Lionel, 30 B.R. 327 (Bankr. S.D.N.Y. 1983). Upon commencement of a bankruptcy case, the board's fiduciary duty is extended to the creditors. Commodities Futures Trading Comm'n v. Weintraub, supra. Pure speculation that a debtor's board and management will sacrifice equity to placate the creditors is insufficient to establish the need for an equity committee. Edison Bros. Stores, Inc., supra.
-----------------------------------------
My favorite lines are:
the court can grant the relief only upon finding that the appointment of the additional committee is "necessary to assure adequate representation"
Once a company becomes insolvent, the directors still owe a fiduciary duty to the shareholders.