Fung Retailing Ltd. v. Toys "R" US, Inc.

593 B.R. 724
CourtDistrict Court, E.D. Virginia
DecidedOctober 25, 2018
DocketCivil Action No. 3:18-cv-00632-JAG; Civil Action No. 3:18-cv-00670-JAG
StatusPublished
Cited by2 cases

This text of 593 B.R. 724 (Fung Retailing Ltd. v. Toys "R" US, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fung Retailing Ltd. v. Toys "R" US, Inc., 593 B.R. 724 (E.D. Va. 2018).

Opinion

John A. Gibney, Jr., United States District Judge

Fung Retailing Limited ("Fung") appeals two orders of the United States Bankruptcy Court for the Eastern District of Virginia (the "Bankruptcy Court"). Despite Fung's active participation in the bidding process in the United States to purchase the majority stake in an Asian company, Fung now argues that the Bankruptcy Court lacked personal jurisdiction over it with respect to that process. Because Fung has immersed itself in the bidding process in the United States from start to finish, the Bankruptcy Court properly exercised specific personal jurisdiction over Fung. Accordingly, the Court AFFIRMS the decisions of the Bankruptcy Court.1

I. BACKGROUND

In September, 2017, Toys "R" Us declared bankruptcy.2 Since then, the Bankruptcy Court has devoted considerable efforts to liquidate TRU's assets. Among other things, the court has been overseeing the sale of TRU's majority interest in Toys (Labuan) Holding Limited (the "Asia JV"), which operates Toys "R" Us stores in Asia. Fung, a company incorporated and headquartered in Hong Kong, owns a 15.13% stake in the Asia JV. TRU (UK) Asia Limited (the "TRU Asia JV Partner"), a corporate subsidiary of TRU, owns the other 84.87% stake. A shareholders' agreement between Fung and the TRU Asia JV Partner governs the Asia JV.

Lazard, Frères & Co. LLC ("Lazard"), TRU's New York-based financial advisor, has shepherded the sale of the TRU Asia JV Partner's majority interest in the Asia JV. To accomplish the sale, Lazard conducted a lengthy process that combined aspects of negotiations and auctions. In March, 2018, Lazard began to seek bidders for the asset. Interested parties would tell Lazard how much they would likely pay, and what conditions of sale they would *728demand. Lazard conducted several rounds of bidding, and after each round, it whittled down the number of participating bidders. Fung, among others, submitted "Non-Binding Indications of Interest" in the rounds of bidding. Fung hung in the process through three rounds. It submitted three decreasing bids: Fung offered between $675 and $775 million on March 14, 2018, between $650 and $750 in the second round, and either $525 or $700 million in the third.3 Fung conditioned each bid on receiving favorable orders from the Bankruptcy Court. The proposed orders would insure that Fung got clear title to the asset, and would include findings of good faith and other protections under the Bankruptcy Code.

After the third round of bidding supervised by Lazard, Fung no longer participated in the negotiations. Fung's counsel was cagey about whether Fund quit bidding voluntarily or Lazard dropped Fung from the process because of its decreasing bids. Either way, the bidding continued among other potential buyers, and Lazard eventually selected a "stalking horse" purchaser for a court supervised auction. The stalking horse set a bottom line for the auction by agreeing to buy the TRU Asia JV Partner for $760 million, pursuant to certain terms (the "Stalking Horse Bid"). Lazard selected certain of TRU's creditors as the stalking horse.

The bidding process involved the exchange of large amounts of information as the bidders conducted due diligence investigations. Given the size of the asset and the expected enormous bids, Lazard set up a virtual data room where bidders could get business documents and ask questions about the sale before bidding. Fung was among the first entities to express interest in the sale and to participate in the virtual room. Lazard ultimately granted 72 Fung representatives access to the room.4 From March to August 2018, Fung submitted 279 due diligence requests to Lazard. Fung logged into Lazard's diligence data room approximately 1,200 times and downloaded approximately 100,000 documents from the data room. Fung's United States-based legal and financial advisors also sent 100 emails to Lazard and had 15 phone conferences with Lazard.

On August 4, 2018, TRU took steps to move ahead with the sale of the TRU Asia JV Partner's interest. TRU moved the Bankruptcy Court to invalidate Fung's Right of First Refusal ("ROFR") in the Partner's interest, which Fung held pursuant to a shareholder's agreement with the Partner. TRU also moved the Bankruptcy Court to approve the Stalking Horse Bid.

Although Fung had dropped out of the bidding process, at this point it jumped back into the fray to prevent the sale. Fung claimed to be concerned because the Stalking Horse Bid would strip the TRU Asia JV Partner of all its assets. On August 23, 2018, therefore, Fung filed a limited jurisdictional objection to TRU's motion, arguing that the bankruptcy court lacked personal jurisdiction over Fung and could not invalidate its ROFR.

On the same day, Fung commenced arbitration in Hong Kong against the TRU Asia JV Partner for breach of the shareholders' agreement. In this proceeding, Fung asked arbitrators declare that, regardless of the outcome of the bankruptcy sale, it could still exercise its ROFR. It *729also asked the arbitrators to determine the value of the Stalking Horse Bid,5 which would trigger the amount Fung would need to pay to exercise its ROFR. If Fung prevailed on its argument, it would essentially encumber the asset sold by the Bankruptcy Court.

Fung tried to interfere in the Bankruptcy Court sale in another way. It asked the arbitrator to require the proceeds of any sale to remain in the Asia JV, instead of going through the Bankruptcy Court to TRU's creditors.

The Bankruptcy Court held a hearing on TRU's motion to invalidate the ROFR on September 6, 2018. At the hearing, the court declined to invalidate the ROFR and overruled Fung's personal jurisdiction objection. The court noted "the immersion of Fung in the bidding process," and the execution of the confidentiality agreement. A. 383-84. By these actions, it held, Fung had "subject[ed] itself to the process that's being supervised by this Court." A. 384. On September 14, 2018, the court entered an order approving the Stalking Horse Bid and scheduling a final sale hearing, which will occur on November 5, 2018 (the "Bidding Procedures Order").

On September 10, 2018, TRU commenced an adversary proceeding against Fung in the Bankruptcy Court and filed an expedited motion to (1) extend the automatic stay as to the Asia JV and the TRU Asia JV Partner and (2) enjoin Fung from continuing the Hong Kong arbitration.6

In response, Fung tried another tactic to impede the Bankruptcy Court's sale of the asset. Fung secured an ex parte injunction from the High Court of Hong Kong on September 18, 2018. Fung told the High Court that it needed to move fast (and without notice to its opponents) to avoid the effects of the Bankruptcy Court auction that Fung had unsuccessfully participated in. Fung said "the U.S. Court will (on 20 September 2018) make an order on the Second U.S. Application, the objective of which will be to seek to fetter the ability of [Fung] to appear again before this Court for the purpose of pro-actively seeking a continuation of any time-limited ex parte injunction granted on this application." A. 738 ¶ 81.

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Bluebook (online)
593 B.R. 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fung-retailing-ltd-v-toys-r-us-inc-vaed-2018.