Bondi v. Capital & Finance Asset Management S.A.

535 F.3d 87, 59 Collier Bankr. Cas. 2d 1772, 2008 U.S. App. LEXIS 15442, 50 Bankr. Ct. Dec. (CRR) 78, 2008 WL 2812964

• Court: Court of Appeals for the Second Circuit
• Decided: July 22, 2008
• Docket: Docket 07-2949-cv
• Status: Published

Opinions

DENNIS JACOBS, Chief Judge:

This appeal is taken from an order of the United States District Court for the Southern District of New York (Kaplan, J.), denying the motion by a debtor in foreign bankruptcy proceedings to enjoin actions brought against it in the United States. In re Parmalat Sec. Litig., 493 F.Supp.2d 723 (S.D.N.Y.2007). The debtor is the entity that emerged from Parmalat’s Italian bankruptcy proceedings. Because the district court acted within its sound discretion, we affirm.

Background

Following its financial implosion in the wake of a colossal fraud, Parmalat Finanzi-aria, S.p.A. and several of its subsidiaries and affiliates (“Old Parmalat”) filed for bankruptcy protection under Italy’s newly-created Marzano law. The bankruptcy court in Parma (the “Parma Court”) declared Old Parmalat insolvent, and Italy’s Minister of Finance appointed appellant Dr. Enrico Bondi to serve as Extraordinary Commissioner of Old Parmalat’s bankruptcy estate, a role analogous to Chapter 11 Trustee.

A

Almost immediately after Old Parmalat filed for bankruptcy in Italy, purchasers of Old Parmalat’s debt and equity securities (the “Securities Fraud Plaintiffs”) filed securities fraud class action lawsuits in the United States (the “Securities Fraud Actions”) against Old Parmalat and against various banks and auditing firms that had allegedly participated in the fraud. Among the defendants were Grant Thornton International (“GTI”) and Grant Thornton, LLP (collectively “GT”).

In June 2004, Dr. Bondi, in his capacity as Extraordinary Commissioner of the Old Parmalat bankruptcy estate, petitioned the Southern District of New York Bankruptcy Court to enjoin actions against the Old Parmalat estate with respect to any property involved in its Italian bankruptcy proceedings pursuant to § 304 of the Bankruptcy Code, 11 U.S.C. § 304 (repealed 2005). Section 304 permitted a representative of a foreign bankruptcy estate to commence a bankruptcy case in the United States in order to enjoin litigation against the foreign debtor in U.S. courts.¹ It instructed courts to fashion relief “guided by what will best assure an economical and expeditious administration” of the foreign bankruptcy estate consistent with, inter alia, “just treatment of all” holders of claims against the estate, and “comity.” 11 U.S.C. § 304(c). The bankruptcy court entered a preliminary injunction shielding Old Parmalat from American lawsuits (“§ 304 Injunction”), and the Securities Fraud Plaintiffs dropped Old Parmalat as a defendant.

Once the § 304 Injunction was in place, Old Parmalat went on the offensive in United States courts. Among other initiatives, Old Parmalat sued GT for malpractice (the “Recovery Actions”).

All the while, Old Parmalat’s Italian bankruptcy proceedings continued. Pursuant to his duties as Extraordinary Commissioner, Dr. Bondi proposed a restructuring plan, the “Concordato,” which became effective upon approval both by a majority of Old Parmalat’s creditors and by the Parma Court.² Under the Concor-dato, the assets of the 16 companies that composed Old Parmalat were transferred to a newly formed entity, appellant Par-malat, S.p.A. (“New Parmalat”), of which Dr. Bondi is the CEO. In marked contrast to bankruptcy norms in the United States, New Parmalat assumed all of the legal liabilities of its predecessor companies. Under the Concordato,

eligible unsecured creditors with a title and/or cause that predates the date when individual [Old Parmalat companies] were declared eligible for Extraordinary Administration Proceedings, including creditors whose claims were not included in the sum of liabilities but whose claims [are] later verified by a court decision that has become final and, therefore, can no longer be challenged (“Late-Filing Creditors”)

are entitled to receive New Parmalat stock. Concordato ¶ 7.3b. “New Parmalat thus functions ... as a claims administrator, converting approved [late-filed] claims against Old Parmalat into ... equity interests in New Parmalat.” In re Parmalat Sec. Litig., 493 F.Supp.2d at 727. Liquidated claims are discharged upon receipt of New Parmalat equity.

After New Parmalat came into being, the district court permitted the Securities Fraud Plaintiffs to amend their complaint to join New Parmalat as a defendant in the Securities Fraud Actions “as the successor to Old Parmalat.” New Parmalat appealed on the mistaken premise that the district court’s order was tantamount to denying New Parmalat § 304 protection against direct securities fraud claims. But the district court explained that it had not yet considered whether to grant § 304 relief to New Parmalat because the court had never received a motion seeking that relief. New Parmalat withdrew its appeal and moved in the district court to expand the existing § 304 Injunction to bar the Securities Fraud Plaintiffs from bringing direct claims against New Parmalat (the “Expansion Motion”).

While the Expansion Motion was pending, the district court granted another motion — this one brought by GTI and Bank of America, N.A. — to narrow the § 304 Injunction to permit certain parties (who were defendants in both the Recovery Actions and the Securities Fraud Action) to file third party contribution claims against New Parmalat based on Old Parmalat’s securities fraud (the “Narrowing Order”). The Narrowing Order contained a special feature: to the extent that any judgment in favor of GTI, Bank of America, or any other third party plaintiff, exceeds what the third party plaintiff owes New Parma-lat, enforcement of the contribution claims will be allowed only in Italy. In other words, while the third party plaintiffs can use American judgments to set off their liability to New Parmalat, they may collect no money from New Parmalat unless and until the Italian courts choose to enforce the American court’s judgment. New Par-malat appealed, and we eventually affirmed. See In re Parmalat Sec. Litig., 240 Fed.Appx. 916 (2d Cir.2007).

B

While the appeal from the Narrowing Order was pending in this Court, the district court denied New Parmalat’s Expansion Motion, a decision which effectively let the Securities Fraud Plaintiffs bring direct (in addition to contribution) claims against New Parmalat. In re Parmalat Sec. Litig., 493 F.Supp.2d 723 (“Expansion Denial Order”). This is the order now on appeal.

In explaining the Expansion Denial Order, the district court referred to its Narrowing Order (then on appeal, and later affirmed, see infra), and the five considerations that drove its decision there: (1) that economical and expeditious administration of the Old Parmalat estate would best be served by liquidating liability in the United States, where relevant facts were already being litigated in the Securities Fraud Litigation; (2) that comity would be served because, while plaintiffs would be allowed to liquidate their claims in the United States, they would be enforced only in Italy, if at all; (3) that the Narrowing order does not unfairly advantage GT because its contribution claim will be permitted in some forum in any event— if not in the United States, then in Italy; (4) that Dr. Bondi’s equitable claim to § 304 protection is weakened by his affirmative Recovery Actions against Parma-lat’s auditors and banks in the American courts rather than in Italy; and (5) that settlement would be facilitated by having all potentially liable parties before the district court.

In denying the Expansion Motion, Judge Kaplan wrote that “[t]he same considerations weigh against Section 304 relief here.” In re Parmalat Sec. Litig., 493 F.Supp.2d at 739. Specifically, Judge Kaplan reasoned: since the Narrowing Order permitted GTI’s contribution claims against New Parmalat, New Parmalat was already before the court to litigate its fault for the securities fraud; as to comity, the Italian courts would benefit from an American court’s determination of New Parma-lat’s liability under American securities law (an issue the parties were already litigating), and “plaintiffs seek to liquidate their claims in the United States, but would seek to enforce any judgment only in Italy”; Dr. Bondi’s claim to equitable relief was no stronger than it was at the time of the Narrowing Order; and denying § 304 relief would facilitate settlement. Id. The district court concluded: “while denying Section 304 relief undoubtedly would impose some expense on New Parmalat, the Court is persuaded that the benefits in efficiency and expeditiousness outweigh the costs.” Id.

In sum, when § 304 motion practice concluded, New Parmalat was subject both to contribution claims and to direct claims for securities fraud in the district court.

Shortly after the district court denied New Parmalat’s Expansion Motion, we affirmed the Narrowing Order. In re Parmalat Sec. Litig., 240 Fed.Appx. 916. We emphasized that “the district court’s decision to leave the enforcement (or not) of any judgment against plaintiff-appellant to the Italian courts was a sufficient measure of deference and comity.” Id. at 919.

Discussion

We review the Expansion Denial Order for abuse of discretion, see id. at 918; accord Bank of New York v. Treco (In re Treco), 240 F.3d 148, 155 (2d Cir.2001), mindful that courts enjoy “broad latitude in fashioning an appropriate remedy” under § 304, Koreag, Controle et Revision S.A. v. Refco F/X Assocs., Inc. (In re Koreag, Controle et Revision, S.A.), 961 F.2d 341, 348 (2d Cir.1992).

Subsection (c) of § 304 required that,

In determining whether to grant [injunctive] relief ..., the court shall be guided by what will best assure an economical and expeditious administration of such estate, consistent with—

(1) just treatment of all holders of claims against or interests in such estate;

(2) protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding;

(3) prevention of preferential or fraudulent dispositions of property of such estate;

(4) distribution of proceeds of such estate substantially in accordance with the order prescribed by this title;

(5) comity; and

(6) if appropriate, the provision of an opportunity for a fresh start for the individual that such foreign proceeding concerns.

11 U.S.C. § 304(c) (repealed 2005). New Parmalat contends that the Expansion Denial Order violated § 304’s instruction to assure an economical and expeditious administration of the foreign estate, and that it was inconsistent with both “just treatment” of all claimholders and “comity”.

I

We cannot say categorically that allowing the American Securities Fraud Litigation to proceed before Judge Kaplan “will best assure an economical and expeditious administration of’ the Old Parmalat bankruptcy estate. It depends. On one hand, American litigation costs can be exorbitant; on the other, it may cost New Par-malat less to litigate the Securities Fraud Litigation here and now, given the risk that the Securities Fraud Plaintiffs will bring their American claims in the Parma Court. The governing law is that of the United States, and the frauds alleged were conducted in English. If the Securities Fraud Action were to be litigated in Italy some time in the future, the Parma Court would confront a foreign legal and regulatory scheme to which (we are informed) there is no Italian analog, a large number of documents in a foreign language, and (no doubt) conflicting expert affidavits on what American securities law requires. All that said, we cannot say with assurance that, if excluded from American courts, the Securities Fraud Plaintiffs would proceed in Italy at all.

So there are good reasons on either side of the proposition that granting the Expansion Motion would “best assure an economical and expeditious administration of’ the Old Parmalat estate. The question is whether the district court abused its discretion in denying the Expansion Motion.

Of course, if we believed that the Par-ma Court would view the district court as lacking jurisdiction (and that the Parma Court would treat any American judgment as a nullity), then we would reverse. (Under that circumstance, we assume the district court would not have entered its order in the first place.) But, to our knowledge, the Parma Court has made no statement regarding the district court’s jurisdiction to liquidate the Securities Fraud Actions.

II

New Parmalat contends that the Expansion Denial Order is inconsistent with “just treatment” of all claimholders, 11 U.S.C. § 304(c)(1), and “comity,” id. § 304(c)(5).

New Parmalat emphasizes that its shareholders are all claimholders, and argues that the Expansion Denial Order thus treats other claimholders unjustly by imposing litigation costs on New Parmalat without any potential benefit. But the detriment is the same as that suffered by shareholders in any company that is made the defendant of a legitimate lawsuit. And it would do no injustice to other claimhold-ers if the Securities Fraud Plaintiffs win a judgment, which — at the direction of the Parma Court — results in issuance of New Parmalat stock. True, issuance of stock to the Securities Fraud Plaintiffs would dilute New Parmalat’s equity, thus reducing the value of existing share holdings; but there is no cognizable injustice to one claimholder in the satisfaction of claims properly presented by another.

Appellants argue (as they did when appealing the Narrowing Order) that denying the Expansion Motion violates § 304’s policy of “comity.” On New Parmalat’s appeal from the Narrowing Order, we considered the nature of Parmalat’s Italian bankruptcy proceedings and the Concorda-to, and we concluded that “to leave the enforcement (or not) of any judgment against plaintiff-appellant to the Italian courts was a sufficient measure of deference and comity.” In re Parmalat Sec. Litig., 240 Fed.Appx. at 919. Since the Expansion Denial Order makes clear that the courts of Italy will decide whether or not to enforce any judgment that the Securities Fraud Plaintiffs win in their direct suits against New Parmalat, we adhere to the view that international comity is respected.

This appeal is distinguishable factually from New Parmalat’s appeal of the Narrowing Order, but the differences do not compel a different result on comity grounds. The Narrowing Order allowed the defendants in Dr. Bondi’s Recovery Action to assert counterclaims, and thus to set off any judgment Dr. Bondi might win against them, whereas the Expansion Denial Order opens New Parmalat to suit by parties unconnected to the Recovery Actions. In both cases, however, the orders are consistent with comity because no third party plaintiff would be permitted to collect on an American judgment without the Italian courts’ approval.

Finally, the district court’s order does not violate the dictate of Italian bankruptcy law that the bankruptcy court has exclusive jurisdiction to satisfy creditors’ claims. The Securities Fraud Plaintiffs are not yet creditors of New Parmalat. Only if the Securities Fraud Plaintiffs prevail in district court will they become judgment creditors of New Parmalat; and, as creditors, they will be required to submit their claims to the Italian courts for enforcement.

Ill

New Parmalat complains that the district court considered two factors not properly a part of the § 304 analysis: settlement potential and Dr. Bondi’s offensive litigation in the United States.

We are naturally inclined against judicial decisions calculated to force a defendant to settle. See, e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 148 (2d Cir.2001) (Jacobs, J., dissenting). But it is hard to dispute the district court’s idea that consolidating American securities claims before a single court would make it easier for the parties to settle their differences without a judicial determination of liability. See In re Parmalat Sec. Litig., 493 F.Supp.2d at 739 (Expansion Denial Order). This may or may not be true. Indeed, it is unclear whether the Concordato would allow for any such settlement at all. But, in any event, since it is often thought that settlement is more economical and expeditious than litigation, the district court acted within the bounds of its discretion in considering likelihood of settlement.

Finally, we see nothing improper about weighing Dr. Bondi’s offensive litigation in the United States: it is incrementally harder for Dr. Bondi to contend that it is a hardship for him to be where he has chosen to come.

IV

In dissent, Judge Wesley states that it is imprudent to issue this opinion now because (in the parties’ words) “the parties do not believe that a disposition of the appeal at this time would advance the interests of either party,” and because (in Judge Wesley’s words) “the relevance of this Court’s resolution of the appeal is entirely dependent upon the outcome of the settlement approval process in the Southern District.” We respectfully disagree for the following reasons:

First, the parties brought this controversy before us, and they have not moved to withdraw it. As the parties advise, this case is not moot-though no doubt it may become moot if left undecided long enough.

Second, we expect that our opinion will be of use to the parties — as well as other persons and entitles: (1) the district judge may want to consider whether the case is properly before him as he decides whether to approve the proposed settlement, see Fed.R.Civ.P. 23(e); (2) the Italian courts— to which we owe a duty of comity unaffected by the stated desires of the parties, and which would decide whether to enforce the resulting judgment — may wish to know whether the case (and settlement) was properly before the district court; and (3) the class members, who must decide whether to object to the proposed settlement, see Fed.R.Civ.P. 23(e)(5), or possibly opt out of it, may want to know whether an American court could hear their case in the event they reject the settlement.

Conclusion

We cannot say with certainty what effect the Expansion Denial Order may have on the economy and expeditiousness with which the Old Parmalat estate will be administered. But we cannot conclude that the district court abused its discretion on that score. And our review of the record satisfies us that Judge Kaplan did not act inconsistently with any of the six considerations mandated by § 304(c). New Par-malat’s remaining arguments are merit-less. The order of the district court is therefore affirmed.

1 . Though § 304 was repealed, it remains applicable to this case. See Pub.L. 109-8 (enacting Chapter IS of the Bankruptcy Code and repealing 11 U.S.C. § 304 for all ancillary petitions filed after October 17, 2005).

2 . Some creditors have appealed from the Italian bankruptcy court's approval of the Con-cordato. While these appeals do not delay implementation of the Concordato, they keep the Italian bankruptcy case open until the Italian appellate courts resolve the appeals.