Commodore International Ltd. v. Gould

262 F.3d 96, 266 B.R. 96, 2001 WL 897138
CourtCourt of Appeals for the Second Circuit
DecidedAugust 9, 2001
DocketDocket No. 00-5082
StatusPublished
Cited by1 cases

This text of 262 F.3d 96 (Commodore International Ltd. v. Gould) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commodore International Ltd. v. Gould, 262 F.3d 96, 266 B.R. 96, 2001 WL 897138 (2d Cir. 2001).

Opinion

JOHN M. WALKER, Jr., Chief Judge:

The Official Committee of Unsecured Creditors of Commodore International Limited and Commodore Electronics Limited (“the Creditors’ Committee”), suing on behalf of the debtor corporations, appeals from an October 6, 2000 judgment of the United States District Court for the Southern District of New York (Richard C. Casey, District Judge) that dismissed the Creditors’ Committee’s suit against defendants-appellees, various directors and officers of the debtor corporations. For the reasons set forth below, that judgment is affirmed.

The background of this case has been substantially detailed in In re Commodore Int'l Ltd., 231 B.R. 175, 176-77 (Bankr.S.D.N.Y.1999) (“Commodore I”). Only the facts relevant to this appeal are set out herein.

This dispute concerns the bankruptcy of two Bahamian corporations: Commodore International Limited and Commodore Electronics Limited (collectively “Commodore”), a parent and its subsidiary, respectively. Prior to its insolvency, Commodore was engaged in the world-wide manufacture of personal computers and related products under the “Commodore” and “Amiga” brand names.

Bankruptcy proceedings involving Commodore are pending before both the Supreme Court of the Commonwealth of The Bahamas (“Bahamian Court”) and the United States Bankruptcy Court in New York (“Bankruptcy Court”). Pursuant to an agreement (“Protocol”) between the Creditors’ Committee of the New York action and Frank R. Wilson and MacGre-gor N. Robinson, the court-appointed liquidators in the Bahamian action (“the Liquidators”), the Bahamian Court and the Bankruptcy Court are jointly administering Commodore’s bankruptcy.1 With court [98]*98approval, the Liquidators have been granted the rights, powers and duties of debtors in possession in the Bankruptcy Court action. See 11 U.S.C. § 1107(a); see generally 3 Collier on Bankruptcy §§ 1107.01 to 1107.04 (3d ed. 2001) [hereinafter “Collier”].

In the normal course, the Liquidators-having the powers and duties of a debtor in possession-would pursue Commodore’s viable legal claims in an effort to increase the size of the bankruptcy estate. See generally 3 Collier, supra, at § 1107.02[3] (discussing debtor in possession’s fiduciary duties). However, on or about March 26, 1997, the Liquidators instead consented to the Creditors’ Committee’s pursuing Commodore’s claims for fraud, waste and mismanagement against the defendants, various former officers and directors of Commodore. See 11 U.S.C. § 1109(b). The Bankruptcy Court entered a general order approving of this arrangement.

The following sequence of events then occurred. On April 2, 1997, the Creditors’ Committee brought suit in the Bankruptcy Court against the defendants. On June 2, 1997, the defendants moved to dismiss the action based on, inter alia, forum non conveniens and international comity grounds. Thereafter, on November 5, 1997, the Liquidators filed suit in the Bahamian Court against the defendants asserting identical claims to those set forth in the Creditors’ Committee’s complaint in the Bankruptcy Court.2

On March 11, 1998, the Bankruptcy Court directed the parties to address whether, in light of the Liquidators’ Bahamian suit, the Creditors’ Committee still retained standing to prosecute an identical suit in the Bankruptcy Court. After briefing and oral argument on the issue, the Bankruptcy Court held that the Liquidators’ suit divested the Creditors’ Committee of standing to pursue claims against the defendants, and it therefore dismissed the action. See Commodore I, 231 B.R. at 180 (holding that “the Liquidators’ commencement of the Bahamian Litigation divests the Committee of standing to bring this litigation”). The district court affirmed the dismissal on October 4, 2000, see In re Commodore Int’l Ltd., 253 B.R. 336, 339 (S.D.N.Y.2000) (“Commodore II”), and this appeal followed.

Before us the parties have joined issue on two questions. The first is whether a creditors’ committee can sue on behalf of a debtor only where the debtor has unjustifiably refused to bring the action, as defendants assert, cf. In re The Gibson Group, Inc., 66 F.3d 1436, 1443 (6th Cir.1995); In re Nicolet, Inc., 80 B.R. 733, 739-40 (Bankr.E.D.Pa.1988); In re Wesco Prods. Co., 22 B.R. 107, 109-10 (Bankr.N.D.Ill.1982), or whether a creditors’ committee can also obtain standing with the debtor’s consent and bankruptcy court approval, as the plaintiff Creditors’ Committee contends. The second is whether, assuming a creditors’ committee can obtain standing with the consent of the trustee, debtor in possession, or court-approved representative with similar authority such as the Liquidators here, that consent can be withdrawn unilaterally, without court permis[99]*99sion once the creditors’ committee has commenced suit. If consent cannot be unilaterally revoked, the Creditors’ Committee contends, then both the Bankruptcy Court and the district court erred in treating the Liquidators’ filing suit in The Bahamas as an automatic withdrawal of the consent upon which its standing was based.

Because, as we explain below, our answer to the first question is dispositive in light of the present posture of the dual bankruptcy proceedings, we do not reach the second question and express no view on it.

On the first question, the district court agreed with the defendants that ‘“creditors committees have an implied ... right ... to initiate adversary proceedings ... only when the trustee or debtor in possession unjustifiably failed to bring suit or abused its discretion in not suing to avoid a preferential transfer.’” Commodore II, 253 B.R. at 339 (quoting In re STN Enters., 779 F.2d 901, 904 (2d Cir.1985)). In arriving at this conclusion, the district court relied on this court’s decision in STN Enterprises. In STN Enterprises, this court held that while “[u]sually ... the debtor in possession initiates proceedings to recover” on the debtor’s legal claims, there is a “qualified right for creditors’ committees to initiate [such] adversary proceedings in the name of the debtor in possession” with “the approval of the bankruptcy court.” In re STN Enters., 779 F.2d at 904. We noted that courts have only so approved when the “debtor in possession unjustifiably failed to bring suit or abused its discretion in not suing to avoid a preferential transfer.” Id.

The district court read STN Enterprises as foreclosing any other basis for creditors’ committee standing. We disagree with this reading, however. STN Enterprises neither presented nor required this court’s consideration of whether a creditors’ committee can gain standing in situations other than the unjustified failure of the debtor in possession to bring suit.

Therefore, we approach the question of whether a creditors’ committee may gain standing with the consent of a trustee, debtor in possession, or court-approved representative having similar authority, as a matter of first impression in this circuit. See generally 3 Collier, supra,

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In Re Commodore International Ltd.
262 F.3d 96 (Second Circuit, 2001)

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Bluebook (online)
262 F.3d 96, 266 B.R. 96, 2001 WL 897138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commodore-international-ltd-v-gould-ca2-2001.