Professional Documents
Culture Documents
18-1374
United States Court of Appeals
for the
Second Circuit
10.78%, 7.74%, 7.61%, 5.47%, and 5.16%, respectively, and Prime Cap
Appellees’ stock.
i
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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT............................................ i
TABLE OF AUTHORITIES ..................................................................... iv
INTRODUCTION ...................................................................................... 1
COUNTERSTATEMENT OF THE ISSUES ............................................ 4
COUNTERSTATEMENT OF THE CASE................................................ 4
Statutory Background ...................................................................... 4
The Parties ....................................................................................... 6
A Market Downturn Renders The Debtors Insolvent And
Prompts Their Restructuring ................................................. 7
The Debtors Seek Chapter 15 Recognition ................................... 10
The JPLs Determine To Promote The Schemes ........................... 11
The Bankruptcy Court Grants Recognition .................................. 13
The Cayman Court Sanctions The Schemes, And The
Bankruptcy Court Issues An Order Enforcing Them.......... 16
The Restructuring Becomes Final ................................................. 18
The District Court Dismisses Ms. Weiner’s Appeal ..................... 19
SUMMARY OF ARGUMENT ................................................................. 21
STANDARD OF REVIEW....................................................................... 25
ARGUMENT ............................................................................................ 26
I. Ms. Wiener Lacks Standing To Pursue This Appeal........... 26
A. Only those persons aggrieved by a bankruptcy
court’s order have standing to challenge the order
on appeal. ..................................................................... 26
B. As a purported shareholder of an insolvent
company, Ms. Wiener lacked a pecuniary interest
in the Debtors’ restructuring. ...................................... 29
ii
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iii
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TABLE OF AUTHORITIES
Page(s)
Cases
In re Agrokor d.d.,
No. 18-12104, __ B.R. __, 2018 WL 5298403 (Bankr.
S.D.N.Y. Oct. 24, 2018) ........................................................................ 50
In re Baker,
604 F.3d 727 (2d Cir. 2010) ................................................................. 25
In re Barnet,
737 F.3d 238 (2d Cir. 2013) ..................................... 1, 26, 27, 28, 40, 41
In re BGI, Inc.,
772 F.3d 102 (2d Cir. 2014) ........................... 2, 3, 26, 44, 45, 46, 48, 53
In re BGI, Inc.,
No. 12cv7714 (ALC), 2013 WL 10822966 (S.D.N.Y. May
22, 2013) ............................................................................................... 58
iv
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In re Chateaugay Corp.,
10 F.3d 944 (2d Cir. 1993) ....................................................... 52, 55, 57
In re Chateaugay Corp.,
988 F.2d 322 (2d Cir. 1993) ................................................................. 58
In re City of Detroit,
838 F.3d 792 (6th Cir. 2016) .......................................................... 47, 48
In re Gucci,
126 F.3d 380 (2d Cir. 1997) ................................................................. 27
In re Johns-Manville Corp.,
843 F.2d 636 (2d Cir. 1988) ............................................... 26, 27, 36, 38
v
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In re Quigley Co.,
391 B.R. 695 (Bankr. S.D.N.Y. 2008) .................................................. 35
Royal & Sun Alliance Ins. Co. v. Century Int’l Arms, Inc.,
466 F.3d 88 (2d Cir. 2006) ................................................................... 51
Webster v. Fall,
266 U.S. 507 (1925) .............................................................................. 43
In re Zarnel,
619 F.3d 156 (2d Cir. 2010) ........................................................... 25, 27
Zhang v. Gonzales,
426 F.3d 540 (2d Cir. 2005) ................................................................. 37
vi
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11 U.S.C. § 1129........................................................................................ 48
11 U.S.C. § 1504.......................................................................................... 5
11 U.S.C. § 1507.................................................................................... 5, 55
11 U.S.C. § 1508.................................................................................... 5, 51
11 U.S.C. § 1515.......................................................................................... 5
11 U.S.C. § 1517........................................................................................ 11
11 U.S.C. § 1521.......................................................................................... 5
Order 102, Rule 20(4)(e) of the Grand Court Rules 1995 ....................... 12
vii
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Order 102, Rule 20(7) of the Grand Court Rules 1995 ........................... 12
Other Authorities
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INTRODUCTION
based insolvency proceedings of Ocean Rig UDW Inc. (UDW) and three
court overruled her objections, and in the absence of any request for a
Barnet, 737 F.3d 238, 242 (2d Cir. 2013). Second, because “effective
1
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BGI, Inc., 772 F.3d 102, 107 (2d Cir. 2014). The district court granted
supported that relief. Although Ms. Wiener now purports to contest the
Debtors’ solvency, she fails to identify any clear error in the lower
interests.
the district court’s finding that this appeal is equitably moot. Although
2
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“without apparent ill effect.” BGI, 772 F.3d at 109. There is every
reason to apply this doctrine to chapter 15 appeals, like this one, that
a foreign court. Here, Ms. Wiener never sought to stay the bankruptcy
In sum, because Ms. Wiener cannot show she has any pecuniary
already been consummated, this Court should affirm the district court’s
3
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Statutory Background
4
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businesses.” In re Fairfield Sentry Ltd., 714 F.3d 127, 132 (2d Cir.
States, as well as all actions that interfere with the debtor’s property
located within the United States. See Fairfield Sentry, 714 F.3d at 133
the country where the debtor has the center of its main interests”).
5
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Moreover, once a recognition order is entered, the court may grant “any
The Parties
is the holding company of the Ocean Rig Group and the parent of the
¶ 4 (Sbarounis Declaration).2
6
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point before she filed her objection to the Debtors’ motion for
recognition.3
market forces and substantial payments coming due under the Debtors’
3Ms. Wiener takes issue with the notion that she is a “purported”
shareholder, claiming that Appellees “admitted she is a shareholder” by
describing her as such in a filing with the Securities and Exchange
Commission. Br. 13 n.6. The district court and bankruptcy court
properly referred to Ms. Wiener as a “purported” or “asserted”
shareholder because she has never “backed up with any evidence” her
assertion that she owns UDW shares. SA622-23; A31. In any event,
there is no need for this Court to resolve that semantic dispute; this
appeal should be dismissed even assuming (as the district court did)
that Ms. Wiener in fact holds UDW shares.
7
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payments of about $288 million, and new secured debt of $450 million.
8
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JPLs (Ms. Fisher and Mr. Appell) and authorized them to commence
agreement as set forth in the Schemes. SA171-231. The next day, the
a filing with the Securities and Exchange Commission. See Ocean Rig
UDW Inc., SEC Form 6-K, Ex. 99.1 (Mar. 28, 2017), https://www.sec.gov
/Archives/edgar/data/1447382/000091957417003022/d7448127_ex99-
9
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out creditors, see SA250-51 ¶¶ 35-38, the JPLs (in their capacity as the
chapter 15 cases for each of the Debtors in the U.S. Bankruptcy Court
in the Southern District of New York on the same day the JPLs were
appointed: March 27, 2017. In the chapter 15 cases, the JPLs sought
since at least April 2017, SA477 (April 15, 2017 email from Ms. Wiener
10
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recognition motion on July 10, 2017, the last possible date to do so. See
alia, that the Debtors could not meet their burden of proving either that
recognition motion.
the Schemes, the JPLs decided to promote the Schemes. SA552 § 9.3
(Practice Statement Letter). The JPLs then promptly filed the Schemes
6On the eve of the recognition hearing, Ms. Wiener filed a letter motion
challenging the venue of the chapter 15 proceedings. SA469-71.
11
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creditors’ meetings the following month for the purpose of voting on the
12
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SA598 ¶ 48, the Cayman court scheduled hearings for September 2017
¶¶ 23-24.
evidence and examined witnesses. Later that month, the court issued
https://cases.primeclerk.com/oceanrig/Home-DocketInfo?DocAttribute
=3208&DocAttrName=SCHEMEDOCUMENTS.
9For purposes of clarity, this brief departs from the defined terms the
district court used in its dismissal opinion to refer to the opinion and
order granting the petition for recognition. See A23 (referring to the
bankruptcy court’s August 24, 2017 memorandum opinion on
recognition as the “Recognition Order” and to the accompanying order of
the same date as the “Enforcement Order”). This brief uses the term
“Enforcement Order” to refer to the bankruptcy court’s September 20,
2017 order giving full force and effect to the Cayman Schemes in the
United States (SA875-81), discussed infra at 17, which resolved a
separate motion.
13
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The bankruptcy court found, among other things, that venue of the
Debtors’ COMI was in the Cayman Islands; that the Debtors did not
11Because Ms. Wiener did not provide any documentary evidence of her
alleged shareholder status, the bankruptcy court concluded that she
“failed to establish that she is a party-in-interest with standing to
contest recognition.” SA623. The court nonetheless considered her
objections on the merits “as if she had established her standing to object
to recognition” because of the court’s independent obligation to
determine whether recognition was proper. Id.
14
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and enforceable upon its entry.” SA658. Ms. Wiener did not seek a stay
12As Ms. Wiener acknowledges, the district court dismissed her appeal
on the basis that she lacked standing and that the appeal was equitably
moot, “without reaching the merits of the appeal.” Br. 12. Accordingly,
the merits of the bankruptcy court’s ruling on recognition are not before
this Court. Ms. Wiener’s brief nonetheless includes several asides
questioning various aspects of the recognition proceedings as well as
certain terms of the Cayman Schemes. See Br. 6-11 & nn.2-4, 6.
Appellees disagree with Ms. Wiener’s characterizations and reserve all
rights to address them in due course if this case is remanded to the
district court for further proceedings on the merits of the bankruptcy
court’s ruling.
15
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inter alia, that “[t]he restructuring of all four Schemes put together is
the best way of maximising value for the creditors of the Group,” who
¶¶ 130-31. The Cayman court further found that the alternative to the
SA852 ¶ 11. Neither the Cayman court nor any party to those
16
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order granting comity and giving full force and effect to the Schemes in
had notice of this motion, its objection deadline, and hearing date,
SA602-08, but did not file any objection or appear at the hearing.
recognizing, granting comity to, and giving full force and effect in the
found, inter alia, that the enforcement relief requested was “necessary
assets and the interests of their creditors and other parties in interest.”
17
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2017, while Ms. Wiener’s appeal was still pending in the district court.
18
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court’s Recognition Order, she did not seek to stay that order, did not
https://www.sec.gov/Archives/edgar/data/1447382/0000919574170
06817/d7655314_ex99-1.htm (announcing reverse stock split).
19
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rendered the appeal equitably moot. The district court stayed merits
As set forth in its dismissal order, the district court granted the
appellate standing. A30. The district court held that Ms. Wiener
company, she “did not stand to lose anything from, and thus had no
also rejected Ms. Wiener’s contention that the decision to permit the
20
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equity for the purpose of enabling UDW to maintain its Nasdaq listing
Wiener never sought a stay of the Recognition Order. A34. As the court
bankruptcy cases filed under chapter 11, has since been applied in cases
SUMMARY OF ARGUMENT
persons who are “aggrieved” by that order, meaning that the order
21
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standard is more stringent than the test for Article III standing. That
recognition. The bankruptcy court, district court, and Cayman court all
determined that the Debtors were profoundly insolvent at the time the
chapter 15 petitions were filed. Ms. Wiener fails to identify any error,
let alone a clear error, in that factual finding. All relevant stakeholders
whole, and all provisions of the Scheme were consistent with that
insolvent enterprise are not entitled to any recovery until creditors have
been paid in full. Because Ms. Wiener stood to gain nothing in these
22
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had merit, Ms. Wiener would still lack standing because she cannot
articulate any connection between the order she challenges and her
pecuniary interests. The Recognition Order did not target Ms. Wiener
proceedings and other actions adverse to the Debtors and their property
in the United States. The bankruptcy court entered that order after
stakeholders, and the public. Ms. Wiener has not contested any of those
findings, and she cannot explain why the Recognition Order directly
and adversely affects her financial interests. Thus, she is not a person
23
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it has been extended to other contexts. The policies that give rise to the
undisputed that the Cayman restructuring has now been completed for
over a year. The presumption therefore applies, and Ms. Wiener has
necessary to rebut it. First and foremost, she has never sought a stay
that would preserve the status quo. Moreover, because the Schemes
24
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equity, distributions of cash and notes, and entry into new agreements
with third parties. For these reasons, granting appellate relief here
STANDARD OF REVIEW
but reviewing its conclusions of law de novo.” In re Baker, 604 F.3d 727,
“legal issue” subject to de novo review, In re Zarnel, 619 F.3d 156, 161
(2d Cir. 2010), but underlying factual findings are reviewable for clear
16 See, e.g., In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 116 (2d Cir.
2010) (holding that district court and bankruptcy court findings that
bankruptcy estate had insufficient value to pay creditors in full were
“findings of fact” subject to clear error review, and concluding that the
debtor thus lacked standing to challenge the sale of assets); Rajamin v.
Deutsche Bank Nat’l Trust Co., 757 F.3d 79, 85 (2d Cir. 2014) (“If the
court … resolved disputed facts in ruling on standing, we will accept the
25
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ARGUMENT
such that the specific order in question “‘directly affects [the appellant’s]
F.2d 636, 642 (2d Cir. 1988)). This “aggrieved person” test is “stricter”
than the injury-in-fact test for Article III standing, Barnet, 737 F.3d at
‘financial,’” In re DBSD N. Am., Inc., 634 F.3d 79, 89 (2d Cir. 2011). Put
26
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386 (5th Cir. 2018). The “stringency” of the “aggrieved person” test is
737 F.3d at 243, “sound[ing] the death knell of the orderly disposition of
bankruptcy matters,” In re Gucci, 126 F.3d 380, 388 (2d Cir. 1997).17
express terms limit standing to appeal, “for practical reasons this Court
and others have adopted the general rule, loosely modeled on the former
Court has described that test as “the general rule,” id. (emphasis
or SEC. Id. at 89 n.3 (citing Zarnel, 619 F.3d at 162); accord Barnet,
27
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737 F.3d at 242 n.1. Ms. Wiener does not contend that the “public
interest” test permits her to maintain this appeal, and she cannot point
to any other test this Court has used to assess bankruptcy appellate
standing.
Point Center Financial, Inc., 890 F.3d 1188 (9th Cir. 2018), only
district court had dismissed the appeal despite that pecuniary interest
the motion at issue. The Ninth Circuit reversed, holding that “one need
not have attended and made objections at the hearing to be directly and
Point Center is perfectly consistent with what this Court and the
28
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the contrary misunderstand the applicable law and fall well short of
the Debtors’ foreign representative, the district court found that the
18See, e.g., Freeman v. Journal Register Co., 452 B.R. 367, 370-71
(S.D.N.Y. 2010) (where debtors are not “sufficiently solvent to provide
equity holders with a recovery” under a bankruptcy plan, equity holders
lack a “pecuniary interest” in the plan’s confirmation); see also 60 E.
80th St. Equities, 218 F.3d at 115 (chapter 7 debtors have standing to
challenge a sale of their assets “only if there could be a surplus after all
creditors’ claims are paid”); In re GT Automation Grp., Inc., 828 F.3d
602, 605 (7th Cir. 2016) (unsecured creditor lacked standing to appeal
bankruptcy court order when creditor could not demonstrate how it
“would get ‘even a dollar’ from a favorable decision,” where estate’s
assets were insufficient to satisfy other claims that had priority).
29
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to be approximately $2.6 billion), such that there was “no value left for
Indeed, Ms. Wiener has never disputed that the Debtors’ distributable
“cash flow” solvency, positing that the Debtors could have used
payments that were due in April 2017, and thereby avoided triggering
30
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bankruptcy court thus concluded that the Debtors “did not expect to
the Cayman Islands. SA628-29. The district court likewise found that
insolvent and had an upcoming interest payment that it did not have
the money to pay without borrowing funds, which UDW would not have
been able to repay.” A27. Ms. Wiener has come nowhere close to
identifying any clear error in those findings, and her revisionist history
First, she points to the fact that such shareholders retained a 0.02%
31
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in order to enable the company to preserve its Nasdaq listing and avoid
the expense and delay of reapplying for listing on Nasdaq after the
Wiener did not present that argument to the district court: Her
32
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North R.R. Co., 658 F.3d 154, 163 (2d Cir. 2011) (“Arguments raised for
plan do nothing to establish that the Debtors were solvent such that
have interests, as the Debtors fully disclosed. See SA92. TMS was
33
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equity plan in no way undermined the reality that the Debtors were
she suggests does not hold true under Cayman law. Br. 18-19. But Ms.
not diverge from U.S. law in that regard. Instead, Cayman law
34
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(Reynolds Declaration).
failed to satisfy the “person aggrieved” test for appellate standing. And
appellants may only assert their “own legal rights and interests and not
those of third parties.” A30 (citing In re Quigley Co., 391 B.R. 695, 705
35
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based on the rights of third parties who apparently favor the plan,”
have often denied standing as to any claim that asserts only third-party
Br. 21. Ms. Wiener’s arguments are misguided, and in fact confirm
deficiencies in her standing that go beyond the fact that she “did not
stand to lose anything from, and thus had no pecuniary interest in,
36
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she is subject.” Br. 16; see also Br. 14. That contention is flawed for
SA74, and did not contend that the operation of these injunctions
Because she did not present that argument, the district court did not
address it in its dismissal order. And even in this Court, she does not
develop the point beyond her ipse dixit assertion that she is “aggrieved
by [the] injunctions.” Br. 16; see, e.g., Zhang v. Gonzales, 426 F.3d 540,
545 n.7 (2d Cir. 2005) (deeming argument waived when appellate brief
In any event, Ms. Wiener’s claim proves entirely too much. The
injunctions in the Recognition Order cover “all entities (as that term is
defined in section 101(15) of the Bankruptcy Code), other than the JPLs
37
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likewise be aggrieved in that same way. The whole point of the “person
bankruptcy court order to those who are “directly and adversely affected
that showing.
pecuniary interests. The Recognition Order did not give effect to the
38
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United States via the Enforcement Order, which Ms. Weiner did not
What the Recognition Order did do was trigger the automatic stay
interference with the Debtors and their property in the United States.23
“in the best interest of the Debtors, their estates, their creditors and
absent such relief, “the Debtors, their creditors and such other parties
39
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SA654; SA656.
policy. See Br. 6-7; SA294-96; supra at 15. She has never disputed the
the Debtors, creditors, other parties in interest, and the public. She has
Cayman restructuring. And she has not explained how she would
challenges and her financial interests, Barnet, 737 F.3d at 243, defeats
40
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at 241. After the recognition order was entered, the debtor’s foreign
discovery motion while the recognition appeal was pending. Id. This
§ 1520.” Id. at 242. The Court went on to hold that Drawbridge had
respect to the Recognition Order. That order neither names her nor
41
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directs relief against her. To be sure, Ms. Wiener (like every other
components of the Recognition Order. But that was also true in Barnet,
took effect upon recognition, but still lacked standing to appeal from
the appellant. Ms. Wiener did not even object to the Enforcement Order
the Schemes, nor has she identified any other order that causes her
Ltd., 714 F.3d 127, as a case supporting her standing to appeal, that
42
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22; see Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which
merely lurk in the record, neither brought to the attention of the court
in the British Virgin Islands: they, unlike Ms. Wiener, could identify a
affected.
43
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Here, by contrast, Ms. Wiener cannot identify any way in which the
Inc., 691 F.3d 476, 481 (2d Cir. 2012)). Through this appeal, Ms.
Wiener seeks to upend the Recognition Order, and, in turn, Ocean Rig’s
however, Ms. Wiener did not seek a stay of the Recognition Order, and
24 As the district court noted, Fairfield Sentry differs from this case
because Sentry’s shareholders were entitled to the proceeds of the
liquidation—unlike UDW’s shareholders here, who had no prospect of
recovery. A34. Ms. Wiener tries to sow doubt about the extent of
Sentry’s liabilities, but cites no evidence that the liquidation proceeds
were insufficient to make any creditors whole, and cannot explain why
the shareholder appellants would have fought to pursue a derivative
action if they would not have shared in the recoveries.
44
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during the pendency of her appeal, the Schemes became effective and
fully implemented. Because granting Ms. Wiener the relief she seeks
upon which numerous third parties have relied for over a year and
mootness, Ms. Wiener principally contends that the doctrine should not
apply to chapter 15 appeals at all. See Br. 26-30, 33-35. She is correct
have imported the policy from its origin in Chapter 11 to cases under
45
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ones.” A38.
defined in chapter 11. See Br. 27-28 (citing Charter, 691 F.3d at 482,
and 11 U.S.C. § 1101(2)). That argument overlooks the reality that the
apparent ill effect.” BGI, 772 F.3d at 107-09. Ms. Wiener has offered
Sixth Circuits both rejected the notion that the doctrine is unique to
which these principles are bound to come into play any less in the
46
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Jefferson Cty., 899 F.3d 1240, 1250 (11th Cir. 2018). As the district
reorganizations.” A38.
The Sixth Circuit, for its part, specifically rejected the notion that
outside of the Code entirely, … [i]t did not require, at conception, any
means to determine the extent to which the plan ha[d] progressed.” Id.
chapter,” the Sixth Circuit chose to “allow[] the written definition [of
47
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mootness was not at issue in Fairfield Sentry, the sole case she cites as
requirement” for additional relief, Br. 29, yet the same is true of orders
F.3d at 107; see also In re Arcapita Bank B.S.C.(c), Nos. 13 Civ. 5755-56
48
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Insurance Co. v. Hughes, 174 B.R. 884 (S.D.N.Y. 1994), a case decided
errant description of that decision as a case from this Court, see Br. 25
(citing A35), but the ensuing analysis in his dismissal order in no way
hear th[e] appeal; it is moot.” Allstate, 174 B.R. at 891. But cf. Br. 25
(incorrectly asserting that Allstate “did not … dismiss the appeal before
it on mootness grounds”).
the standard for recognition under chapter 15, but those differences
49
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standard” than that under former section 304, under which “all relief …
Fund, Ltd., 389 B.R. 325, 332-34 (S.D.N.Y. 2008). The issue here,
did to former section 304. See In re Agrokor d.d., No. 18-12104, __ B.R.
__, 2018 WL 5298403, at *15 (Bankr. S.D.N.Y. Oct. 24, 2018) (“Many of
proceedings under section 304 were carried forward and apply today in
50
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quotation marks omitted); see also 11 U.S.C. § 1508; Royal & Sun
Alliance Ins. Co. v. Century Int’l Arms, Inc., 466 F.3d 88, 92-93 (2d Cir.
2006) (finding that “[a] foreign nation’s interest in the ‘equitable and
51
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court heeded this Court’s prior applications of the doctrine. First, the
Silicones, LLC, 874 F.3d 787, 804 (2d Cir. 2017). The district court
953 (2d Cir. 1993) (Chateaugay II)). The district court found that Ms.
Wiener did not seek a stay of the recognition order and that “the
and made cash distributions to creditors and entered into a new secured
The district court did not abuse its discretion in applying the
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15, and only barely addresses the district court’s exercise of discretion
in determining her appeal was moot. Notably, apart from her meritless
chapter 11, see supra at 45-48, she does not challenge the district court’s
have comprehensively changed.” A38; see also BGI, 772 F.3d at 110
53
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the actual effects of the requested relief.” Br. 30; see also Br. 35
assessing the appeal on the merits”). The district court did no such
September 2017, that Ms. Wiener failed to request a stay, and that her
In that regard, the district court was not required to defer to Ms.
Wiener’s unsupported assurances that the relief she requests “does not
37; SA773-74, SA813-14 § 4.1; see also Allstate, 174 B.R. at 890 (finding
approved the Scheme only on the condition that the U.S. Bankruptcy
Court issue [a] permanent injunction,” such that relief modifying the
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Recognition Order, the bankruptcy court would not have been able to
issue the Enforcement Order, which gave the Schemes full force and
effect in the United States. And without the Enforcement Order, the
failure to seek a stay, which distinguishes this case from the precedents
exist,” one of which is the appellant’s having acted diligently to stay the
order on appeal. 10 F.3d at 953.26 And Charter reiterated that “all five
26The remaining four factors are whether: “(i) effective relief can be
ordered; (ii) relief will not affect the debtor’s re-emergence; (iii) relief
‘will not unravel intricate transactions’; [and] (iv) affected third-parties
are notified and able to participate in the appeal.” MPM Silicones, 874
F.3d at 804. Here, Appellees’ motion to dismiss addressed these factors,
55
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Silicones, the Court again noted that the five Chateaugay factors must
appeal.” Br. 31. But the entire point of seeking a stay is to prevent the
see SA24-26, and the district court ultimately found that it would be
inequitable to “unwind[]” the numerous transactions that took place
when the restructuring became effective, A38. Ms. Wiener alluded to
these factors only obliquely in the district court, maintaining
(incorrectly) that the relief she requests would not disturb the Schemes.
See SA83. Her brief in this Court does not address these factors at all.
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the Schemes full force and effect, the restructuring became effective,
and pursuant to the Schemes, the Debtors canceled existing debt, made
distributions of cash and equity, issued new notes, and entered into
important new agreements. See A39; see also supra at 18-19. Those
mootness not just because she failed to seek a stay, but also because
Corp., 329 F.3d 338, 346 (3d Cir. 2003) (finding no equitable mootness
$300 million,” relief that would not cause the reorganization “to
unravel”).
that the court stayed merits briefing while the motion to dismiss was
pending. See Br. 32-33. She fails to mention, however, that the district
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would not have to “worry about filing the initial brief on the appeal”
A17. In any event, “[a]s [this Court’s] precedent makes clear, the
appeal.” In re Fiorano Tile Imports, Inc., 619 F. App’x 33, 34 (2d Cir.
Chateaugay Corp., 988 F.2d 322, 325 (2d Cir. 1993)); accord, e.g., In re
Transwest Resort Props., Inc., 801 F.3d 1161, 1167 (9th Cir. 2015); In re
May 22, 2013), aff’d, 772 F.3d 102 (2d Cir. 2014). The fact that district
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CONCLUSION
the appeal.
Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
32.1(a)(4) because this brief contains 11,735 words, excluding the parts