Jurisdiction and Venue in Chapter 15 Selected Issues

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1 Jurisdiction and Venue in Chapter 15 Selected Issues Prepared by: Jeanne P. Darcey Sullivan & Worcester LLP Boston, MA October 8, 2013 Please visit us on our website at

2 Chapter 15 Purpose of Chapter 15: Provide effective mechanism for dealing with cross-border insolvencies Provide cooperation between U.S. courts and courts of foreign countries Provide greater legal certainty for trade and investment Provide fair and efficient administration that protects all creditors and interested parties, including debtor Facilitate rescue of financially troubled businesses, thereby protecting investment and preserving employment Jurisdiction and Venue in Chapter 15 - Selected Issues 2

3 Petition For Recognition Case commenced by filing petition for recognition of foreign proceeding ( 1504) Requests recognition of either foreign main proceeding or foreign nonmain proceeding 1502: Main Proceeding: foreign proceeding pending in country where the debtor has center of main interests ( COMI ) Nonmain Proceeding: foreign proceeding, other than foreign main proceeding, pending in country where debtor has an establishment Establishment defined as any place of operations where debtor carries out nontransitory economic activity Jurisdiction and Venue in Chapter 15 - Selected Issues 3

4 Relief Upon Filing 1519: Upon the filing of the chapter 15 petition and before recognition, bankruptcy court may grant relief where urgently needed to protect assets of the debtor or the interest of creditors, including among other things: Issuing a stay against execution of the debtor s assets Entrusting estate assets to a foreign representatives Standards applicable to injunctions apply to relief under this section Relief under 1519 granted only if the interests of the creditors and other interested entities, including the debtor, are sufficiently protected ( 1522) Jurisdiction and Venue in Chapter 15 - Selected Issues 4

5 Relief Upon Recognition Recognition: Entry of an order granting recognition of a foreign main proceeding or a foreign nonmain proceeding under chapter 15 ( 1502(7)) 1520: Recognition of foreign main proceeding results in automatic and non-discretionary relief, including imposition of automatic stay of all proceedings against debtor and property of the debtor within United States 1521: Upon recognition of either foreign main or foreign nonmain proceeding, bankruptcy court may grant appropriate relief to protect assets of debtor and interests of creditors Relief under 1521 granted only if the interests of the creditors and other interested entities, including the debtor, are sufficiently protected ( 1522) Jurisdiction and Venue in Chapter 15 - Selected Issues 5

6 Relief Upon Recognition Court may extend any relief previously granted under 1519, including issuance of a stay Court may entrust foreign representative with distribution of assets, provided that the court is satisfied that the interests of creditors in the United States are sufficiently protected. 1521(b) Jurisdiction and Venue in Chapter 15 - Selected Issues 6

7 Additional Assistance 1507 (a): Provides that the court may grant additional assistance to the foreign representative 1507 (b): In determining whether to provide additional assistance, court shall consider whether, consistent with the principles of comity, such assistance will reasonably assure: Just treatment of creditors Protection of U.S. creditors against prejudice and inconvenience Prevention of preferential or fraudulent dispositions of property of the debtor Distributions of proceeds substantially in accordance with the U.S. Bankruptcy Code Jurisdiction and Venue in Chapter 15 - Selected Issues 7

8 Comity Recognition by courts of one jurisdiction of the laws and judicial decisions of another Principles of comity govern post-recognition relief under both 1507 and 1521 Subjective analysis; court will exercise discretion Comity is not a one-way street; rarely appropriate where foreign court has failed and refused to recognize judgments emanating from U.S. courts Factors set forth in 1507(b)(1)-(4) are elements in considering propriety of granting comity to foreign orders Jurisdiction and Venue in Chapter 15 - Selected Issues 8

9 Comity Factors Just treatment of all claims against or interests in the debtor s property (b)(1): Does foreign proceeding provide a comprehensive procedure that ensures an orderly and equitable distribution of assets among creditors Inquiry should not rest on whether procedures exist, but on a factual analysis of whether procedures were followed Procedures intended to provide equitable, non-discriminatory treatment for all holders of claims against debtor Jurisdiction and Venue in Chapter 15 - Selected Issues 9

10 Comity Factors Protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding (b)(2): Do U.S. creditors have the same rights and status as creditors in the foreign jurisdiction Do U.S. creditors have an opportunity to file claims and the right to be heard in the foreign jurisdiction Inconvenience of participating in a foreign proceeding given little weight Jurisdiction and Venue in Chapter 15 - Selected Issues 10

11 Comity Factors Prevention of preferential or fraudulent dispositions of property of the debtor (b)(3): Chapter 15 court to consider if foreign insolvency law contains avoidance statutes giving creditors the means to prevent preferences or fraudulent transactions Determination by chapter 15 court should not rest on whether theoretical safeguards exist in the statute itself, but whether creditors had an opportunity to present such claims Jurisdiction and Venue in Chapter 15 - Selected Issues 11

12 Comity Factors Distribution of proceeds of the debtor s property substantially in accordance with the order prescribed by U.S. Bankruptcy Code 1507 (b)(4): Distribution scheme need not be identical to distribution scheme under the U.S. Bankruptcy Code, but cannot be repugnant to a fundamental policy of the U.S. or render the claims of U.S. creditors unenforceable U.S. distribution scheme generally prohibits retention of value by equity stakeholders if more senior classes are not paid in full, unless senior classes consent Jurisdiction and Venue in Chapter 15 - Selected Issues 12

13 Public Policy Exception 1506: Nothing in this chapter prevents the court from refusing to take an action governed by this chapter if the action would be manifestly contrary to the public policy of the United States. Exception to be invoked concerning matters of fundamental importance to the United States and used sparingly Deference should be withheld where appropriate to avoid violation of laws, public policies, or rights of citizens of U.S. Focus should be on 2 factors: Was foreign proceeding procedurally unfair Does application severely impinge the value and import of a constitutional or statutory right Jurisdiction and Venue in Chapter 15 - Selected Issues 13

14 Contesting Recognition Is there appropriate Foreign Proceeding entitled to recognition? What is COMI of proposed debtor? Is applicant authorized Foreign Representative? Is Venue appropriate for foreign debtor? What is Purpose of chapter 15 proceeding? Jurisdiction and Venue in Chapter 15 - Selected Issues 14

15 Foreign Proceeding Foreign Proceeding defined in 101(23): A collective or judicial or administrative proceeding in a foreign country, including an interim proceeding under a law relating to insolvency or adjustment of debt in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation Jurisdiction and Venue in Chapter 15 - Selected Issues 15

16 COMI: Foreign Main Proceeding 1517(b)(1): foreign main proceeding recognized if pending in country where debtor has center of its main interests Statutory Presumption: 1516(c): In absence of evidence to the contrary, debtor s registered office, or habitual residence in the case of an individual, is presumed to be the center of the debtor s main interests Jurisdiction and Venue in Chapter 15 - Selected Issues 16

17 COMI Factors In re SPhinX, Ltd., 351 B.R. 103 (Bankr. S.D.N.Y. 2006) provides nonexhaustive list of factors, including: Location of headquarters and management Location of primary assets Location of majority of creditors Jurisdiction of law for most disputes Place where debtor conducts the administration of his interests on regular basis Factors appear similar to concept of principal place of business under U.S. law Jurisdiction and Venue in Chapter 15 - Selected Issues 17

18 COMI: When Measured Courts generally assess factors at time petition for recognition filed In re Ran, 607 F 3d 1017 (5 th Cir. 2010): Rejects notion that COMI determination should be made with regard to operational history Congress used present tense in statute, therefore courts required to view the COMI determination in the present, at time of petition for recognition. If Congress intended otherwise, it could have said so. Focus on historical operational COMI rather than COMI at time of filing would make determination imprecise and complicated (In re Betcorp Ltd., 400 B.R. 266 (Bankr.D.Nev. 2009) In the Matter of Fairfield Sentry Limited, 2013 WL (2d Cir. April 16, 2013): Relevant time period is time of filing, subject to inquiry into whether process manipulated Jurisdiction and Venue in Chapter 15 - Selected Issues 18

19 COMI: Vitro Packaging Vitro Packaging de Mexico, S.A. de C.V. VPM organized under laws of Mexico Registered office and principal place of business in Nuevo Leon, Mexico All administrative functions conducted from Nuevo Leon, Mexico All business managed and controlled from Nuevo Leon, Mexico Voluntary petition filed in Federal Court of Nuevo Leon, Mexico Jurisdiction and Venue in Chapter 15 - Selected Issues 19

20 COMI Challenge Noteholder Arguments: VPM recipient of assets of Vitro Packaging LLC (US entity) VPM was distributor arm of glass containers business in US; otherwise conducted no business in Mexico VPM qualified to do business in 30 US states All VPM revenues from US and Canada 95% of VPM inventory in US No employees; used Texas based affiliate to continue transacting its business Court determined that as Mexican company, with business address in Monterrey, COMI satisfied Jurisdiction and Venue in Chapter 15 - Selected Issues 20

21 Foreign Representative Foreign Representative files petition for recognition in U.S. Bankruptcy Court seeking recognition of foreign proceeding in which foreign representative has been appointed ( 1515 (a)) Foreign Representative defined in 101(24): A person or body authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor s assets or affairs or to act as a representative of such foreign proceeding Jurisdiction and Venue in Chapter 15 - Selected Issues 21

22 Foreign Representative 1515(b): Petition for recognition shall be accompanied by Certified copy of decision commencing foreign proceeding and appointing foreign representative; Certificate from foreign court affirming the existence of foreign proceeding and appointment of foreign representative; OR In absence of either of the above any other evidence acceptable to the court of the existence of such foreign proceeding and of the appointment of the foreign representative. Jurisdiction and Venue in Chapter 15 - Selected Issues 22

23 Foreign Representative Query: Must foreign representative be appointed or approved by court order in the foreign case? Vitro Board appointed in-house general counsel as sole foreign representative; Mexican Insolvency Court prohibited first foreign representative to leave Mexico; accordingly, Vitro subsequently appointed a co-foreign representative Vitro Position: Plain language of 101(24) does not require court appointment and is intended to include debtors in possession, like Vitro; therefore Vitro had power to appoint foreign representatives Model Law, predecessor law ( 304) and legislative history all permit appointment UNCITRAL Working Group expressly rejected requirement that foreign representative be authorized by statute or court order Jurisdiction and Venue in Chapter 15 - Selected Issues 23

24 Foreign Representative Contrary (Noteholder) Position: General Counsel not been appointed by court to act as foreign representative Vitro not equivalent of debtor in possession under chapter 11; those powers reserved for the conciliador Only conciliador can negotiate and file a plan Board Appointee not authorized to administer the reorganization or the liquidation of the debtor s assets or affairs as required in 1515(a) Board Appointee not disinterested party Jurisdiction and Venue in Chapter 15 - Selected Issues 24

25 Foreign Representative Result: Bankruptcy Court, District Court and 5th Circuit determined that co-foreign representatives appointed by Vitro Board were permitted; no requirement that court in foreign proceeding appoint foreign representative; Vitro retained sufficient control over its business to be a debtor in possession Debtor in possession is entity that retains control over its business; need not fit within definition of DIP under chapter 11 Jurisdiction and Venue in Chapter 15 - Selected Issues 25

26 Venue 28 U.S.C governs venue of chapter 15 cases Venue appropriate in district Where debtor has principal place of business or principal assets in the United States If no place of business or assets, then district in which there is pending an action or proceeding in Federal or State Court If neither of above, then venue consistent with interests of justice and convenience of parties, having regard to relief sought by foreign representative Jurisdiction and Venue in Chapter 15 - Selected Issues 26

27 Venue Venue Fight I: S.D.N.Y. (Vitro choice) vs. N.D. Texas (Noteholder choice) November 2010: Involuntary petitions filed against Vitro subsidiaries in Texas December 2010: Vitro commences bankruptcy case in Federal Court in Monterrey, Mexico December 2010: Foreign Representative filed petition commencing case in New York Motion to Transfer Venue: Argued January 6, 2011, and taken under advisement Vitro insolvency proceeding dismissed in Mexico on January 9; accordingly, chapter 15 petition in New York withdrawn and venue motion moot Jurisdiction and Venue in Chapter 15 - Selected Issues 27

28 Venue Venue Fight II: March 31 - April 1, 2011, hearing on involuntary petitions in Texas, taken under advisement April 6, 2011: Vitro requests relief for 4 subsidiaries in Texas April 8, 2011: Vitro insolvency dismissal in Mexico reversed April 11, 2011: Texas court denies involuntary petitions for 3 entities April 14, 2011: Vitro files second chapter 15 petition in New York based on reversal of dismissal by Mexican appellate court Motion to Transfer Venue to Texas Renewed May 13, 2011: Texas court enters order transferring venue to Texas; relies on Commonwealth Oil, 596 F.2d 1239 (5th Cir. 1979) Jurisdiction and Venue in Chapter 15 - Selected Issues 28

29 Venue Analysis includes convenience of parties, interests of justice, economic and efficient administration of case Commonwealth Oil convenience of the parties listed six factors: (1) The proximity of creditors of every kind to the Court; (2) The proximity of the bankrupt (debtor) to the Court; (3) The proximity of the witnesses necessary to the administration of the estate; (4) The location of the assets; (5) The economic administration of the estate; (6) The necessity for ancillary administration if bankruptcy should result. Jurisdiction and Venue in Chapter 15 - Selected Issues 29

30 VENUE Factors Considered Important by Texas Court in Vitro: Ease of getting to Dallas from Mexico Affiliates are debtors in pending chapter 11 cases Overlapping claims between Vitro and chapter 11 debtors Avoidance of inconsistent results Judicial economy Texas cases were filed first Jurisdiction and Venue in Chapter 15 - Selected Issues 30

31 Purpose of Recognition Obtain order of enforcement of foreign orders Obtain benefits of 1521, including stay relief and protection of assets within the US Obtain benefits of 1507 additional assistance Difficult to prove improper purpose at start of chapter 15 case, during recognition phase Need to demonstrate that chapter 15 has no legitimate purpose or that foreign insolvency order not entitled to enforcement on its face Jurisdiction and Venue in Chapter 15 - Selected Issues 31

32 A New Twist on Foreign Proceedings In re Catalyst Paper Corp., Case N (Bankr. D. Del. March 5, 2012) Court granted recognition of debtors proceedings in Canada, as foreign main proceeding, with respect to Canadian parent company, and Canadian and U.S. subsidiaries; group s nerve center in British Columbia U.S. subsidiaries had significant U.S. operations, were guarantors of parent s secured and unsecured debt issued under New York indentures Despite significant objection, court recognized foreign main proceeding for U.S. subsidiaries (other cases consensual) Result: U.S. subsidiaries did not need to adhere to chapter 11 creditor protections, including committee or plan requirements Jurisdiction and Venue in Chapter 15 - Selected Issues 32

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