They started out raising a glass together and ended up on opposite sides of the table. What they do not always know is which court they will have to sit in.
Few films explain a dispute between business partners better than The Social Network. David Fincher tells how Mark Zuckerberg and Eduardo Saverin go from founding Facebook in a Harvard dorm room to sitting on opposite sides of a table full of lawyers. It began with a toast and ended in a lawsuit. But there is a detail almost nobody remembers: that whole war is fought in a civil case. Nobody ends up in a criminal court.
In Spain, when a business between partners collapses, the script usually goes a different way. It is only human: if everything has been lost, someone must be to blame. And the criminal route looks like the quickest one. So along comes the criminal complaint against the partner who ran the company, for breach of fiduciary duty.
The offence that does exist
The offence exists and it is serious: it is committed by someone who manages other people’s money, oversteps the limits of what they may do with it and causes them a loss. It is not the same as keeping the money, which is a different offence altogether.
A bad partner is not a criminal
But the distance between poor management and a crime is the same as the distance between a bad partner and a criminal. A business that goes wrong, an investment that does not pay off or a questionable decision are not crimes. The law even protects a businessperson’s room to make mistakes, provided they decide in good faith, without a personal interest and on an informed basis.
That is why so many complaints between partners come to nothing. They mix disagreement, frustration and suspicion, but fail to specify what was done wrong or what harm was caused. The judge finds no offence, dismisses the case, and all that is left is the noise.
The right setting
Fincher chose the setting well. Disputes between partners have their own channels: liability actions against the directors and, if there is an insolvency, the commercial judge’s examination of whether the failure was culpable. Using the criminal route as a shortcut prolongs the conflict, wears everyone down and can end up costing dearly whoever files a complaint without grounds.
If a complaint like this lands on your desk, defend yourself from day one with the documentation of your management: minutes, reports, accounts and the timeline of every decision. And if you are thinking of filing one, first ask yourself whether you have a crime or a disagreement. Are you sure your film is being shot in the right court?