Collins v. Oilsands Quest Inc.

484 B.R. 593, 2012 WL 6709266
CourtDistrict Court, S.D. New York
DecidedDecember 27, 2012
DocketNo. 11 civ. 1288 (JSR), 12-10476 (JSR)
StatusPublished
Cited by6 cases

This text of 484 B.R. 593 (Collins v. Oilsands Quest Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Oilsands Quest Inc., 484 B.R. 593, 2012 WL 6709266 (S.D.N.Y. 2012).

Opinion

MEMORANDUM

JED S. RAKOFF, District Judge.

Ernst & Young Inc., a bankruptcy monitor and authorized foreign representative (the “Monitor”) for Oilsands Quest, Inc. (“Oilsands”) and certain of its subsidiaries, filed Verified Petitions for Recognition of Foreign Proceedings and Related Relief (the “Petitions”) pursuant to Chapter 15 of the Bankruptcy Code. The Monitor seeks 1) recognition of certain bankruptcy proceedings (the “Canadian Proceedings”) pending before the Court of Queen’s Bench of Alberta (the “Alberta Court”) as foreign main proceedings under section 1517 of the Bankruptcy Code; 2) an order giving full force in the United States to certain orders of the Alberta Court (the only contested parts of these orders being the stays of pending litigation against the individual officers and directors of Oil-sands); and 3) a stay of proceedings in the above-captioned civil case against McDaniel & Associates Consulting, Ltd. (“McDaniel”), a former consultant to Oilsands. Plaintiffs in the above-captioned civil action initially objected to all three of the Monitor’s requests, but they later agreed that if the Court decided to grant the Monitor’s first two requests, the Court should also grant the Monitor’s third request, the stay against McDaniel. By bottom-line order dated March 29, 2012, the Court granted the Monitor’s petitions in their entirety. Although the parties have now filed proposed settlement papers, this Memorandum explains the reason for those rulings.

The Court turns first to the question of recognition of the Canadian Proceeding as a foreign main proceeding. The Monitor bears the burden of proof on this issue. See In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 128 (Bankr.S.D.N.Y.2007). However, the only dispute relating to this recognition is whether the Canadian bankruptcy is indeed pending in the country where the debtor has its center of main interests. See 11 U.S.C. § 1517(b)(1). If it is not, then this Court cannot recognize the Canadian proceedings as a foreign main proceeding.

Oilsands has a registered- office in Colorado. Section 1516(c) of the Bankruptcy Code provides that “[i]n the absence of evidence to the contrary, the debtor’s registered office ... is presumed to be the center of the debtor’s main interests.” 11 U.S.C. § 1516(c). Here however, there is evidence to the contrary, and so the Court must examine all of the evidence to determine where Oilsands’s center of main interest lies. In so doing, factors that are normally relevant include, inter alia, the locations of the debtor’s headquarters, management, assets, and creditors, and the jurisdiction whose law would apply to most disputes. See In re Millennium Global Emerging Credit Master Fund Ltd., 458 B.R. 63, 70 (Bankr.S.D.N.Y.2011).

As to headquarters and management, the Court agrees with the Monitor that Oilsands “is a highly centralized business that is located and operated entirely in and around Alberta, Canada.” See [596]*596Memorandum of Law in Support of Chapter 15 Petitions for Recognition of Foreign Proceedings and Related Relief (“Monitor Mem”) at 8. Oilsands does not have any place of business in the United States, and its headquarters, executive offices, and principal street address are located in Alberta, Canada. Verified Petitions for Recognition of Foreign Proceedings and Related Relief (“Petitions”) ¶ 22. Moreover, all of Oilsands’s strategic decisionmaking and corporate functions occur in Canada, and all of Oilsands’s employees are located in Canada. See Monitor Mem. at 8; Petitions ¶ 8. The fact that Oilsands has a registered agent in Colorado and is listed on the American Stock Exchange is not sufficient to overcome the other evidence that Oilsands’s headquarters and management are located in Canada.

Oilsands’s principal assets are also located in Canada. Those assets are permits, licenses, and leases relating to natural resource properties in Alberta and Saskatchewan, which were granted by the provinces of Alberta or Saskatchewan. Petitions ¶ 24.

Oilsands’s primary creditors are also in Canada. See Petitions ¶ 25. In fact, all but two of the 90 creditors who have filed claims against Oilsands are located in Canada. See Transcript of Oral Argument, March 15, 2012 (“Tr.”) at 6. While plaintiffs argue that the putative class in the above-captioned civil suit before this Court is the largest creditor of Oilsands, the members of the putative class are not yet proven creditors, and even if plaintiffs ultimately prevail in the civil suit, their claims would be subordinated to general unsecured claims. 11 U.S.C. § 510(b); Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 § 2(d).

Turning to the jurisdiction whose law will govern most disputes, the Court also finds that this jurisdiction is Canada. Most disputes that arise out of the bankruptcy will relate to assets and property, and those disputes will be governed by Canadian law.

Finally, as discussed above, a company’s center of main interests should be ascertainable by third parties. The Monitor correctly argues that Oilsands has represented itself to investors as a company based in Canada. Every SEC filing, press release, presentation, and prospectus has said that the company was based in Canada. See Monitor Mem. at 4-5. It is true that Oilsands was required in SEC filings to state that it was incorporated in the United States, but those SEC filings also stated that the principal executive offices of the Company were located in Alberta. See Declaration of Judith Scolnick, Mar. 5, 2012, Exs. A, B.

Therefore, the Court recognizes the Canadian Proceedings as “foreign main proceedings.” Having done so, the Court must next determine whether to give full force and effect to the orders of the Alberta Court.

Section 1509 of the Bankruptcy Code provides that “if the court grants recognition [as a foreign main proceeding] under section 1517, and subject to any limitations that the court may impose consistent with the policy of [chapter 15] ... a court in the United States shall grant comity or cooperation to the foreign representative.” 11 U.S.C. § 1509(b)(3). But the statutory imperative that the Court shall grant comity or cooperation does not mean that the Court must enforce every order entered into by the Alberta Court, for, under the plain terms of the statute, the Court must also consider “any limitations that the court may impose consistent with the policy of [chapter 15].” Id. § 1509(b). More generally, “[t]he principle of comity has never meant categorical deference to [597]*597foreign proceedings. It is implicit in the concept that deference should be withheld where appropriate to avoid the violation of the laws, public policies, or contrary to the public policy of the United States.” See 11 U.S.C. § 1506; Monitor Mem. at 12; Pis.’ Mem. at 4.

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Bluebook (online)
484 B.R. 593, 2012 WL 6709266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-oilsands-quest-inc-nysd-2012.