In Re: Parmalat Securities Litigation v., No. 07-2949 (2d Cir. 2008)

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07-2949-cv In Re: Parmalat Securities Litigation v. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: November 29, 2007 Decided: July 22, 2008) Docket No. 07-2949-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ENRICO BONDI, EXTRAORDINARY COMMISSIONER OF PARMALAT FINANZIARIA S.P.A. AND PARMALAT S.P.A., A/K/A NEW PARMALAT, AND OTHER AFFILIATED ENTITIES, IN EXTRAORDINARY ADMINISTRATION UNDER THE LAWS OF ITALY, Appellants, RENATO ESPOSITO, FONDAZIONE ITALO MONZINO, SOUTHERN ALASKA CARPENTERS PENSION FUND, CRISTINA PONCIBO, MARGERY LOUISE KRONENGOLD, ROBERT MCQUEEN, CUSTODIAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, FERRI GIAMPOLO, FOOD HOLDINGS LIMITED, DAIRY HOLDINGS LIMITED, G. JAMES CLEAVER, GORDON I. MACRAE, GERALD K. SMITH, LAURA J. STURAITIS, MONUMENTAL LIFE INSURANCE COMPANY, TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, TRANSAMERICA LIFE INSURANCE COMPANY, AVIVA LIFE INSURANCE COMPANY, PRINCIPAL GLOBAL INVESTORS, LLC, PRINCIPAL LIFE INSURANCE COMPANY, SCOTTISH RE {US} INC., PARMALAT CAPITAL FINANCE LIMITED, HARTFOLD LIFE INSURANCE COMPANY, G. PETER PAPPAS, PLAN ADMINISTRATOR AND ERSTE SPARINVEST KAPITALANLAGEGESELLSCHAFT M.B.H., Plaintiffs, - v.CAPITAL & FINANCE ASSET MANAGEMENT S.A., CATTOLICA PARTECIPAZIONI S.P.A., HERMES FOCUS ASSET MANAGEMENT EUROPE LIMITED, SOLOTRAT, SOCIETE MODERNE DES TERRASSEMENTS PARISIENS, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Plaintiffs-Appellees, BONLAT FINANCING CORPORATION, CALISTO TANZI, FAUSTO TONNA, COLONIALE S.P.A., CITIGROUP INC., BUCONERO, LLC, ZINNI & ASSOCIATES, P.C., DELOITTE TOUCHE TOHMATSU, DELOITTE & TOUCHE S.P.A., A SOCIETA PER AZIONI UNDER THE LAWS OF ITALY, GRANT THORNTON S.P.A., A SOCIETA PER AZIONO UNDER THE LAWS OF ITALY NOW KNOWN AS ITALAUDIT, S.P.A., NOW KNOWN AS ITALAUDIT, S.P.A, ,, DEUTSCHE BANK AG, MORGAN STANLEY & CO., INCORPORATED, BANK OF AMERICA CORPORATION, JAMES E. COPELAND JR., PARMALAT FINANZIARIA S.P.A., STEFANO TANZI, LUCIANO DEL SOLDATO, DOMENICO BARILI, FRANCESCO GIUFFREDI, GIOVANNI TANZI, DELOITTE & TOUCHE USA, LLP., DELOITTE & TOUCHE L.L.P., CREDIT SUISSE FIRST BOSTON, BANC OF AMERICA SECURITIES LIMITED, BANK OF AMERICA, N.A., CITIBANK, EUREKA SECURITISATION PLC, VIALATTEA LLC, PAVIA E ANSALDO, BANCA NAZIONALE DEL LAVORO S.P.A., CITIBANK, N.A., MARIA MARTELLINI, PROFESSOR, BANCA INTESA S.P.A., BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, BANC OF AMERICA SECURITIES, LLC, BANK OF AMERICA INTERNATIONAL, LTD., DELOITTE & TOUCHE TOHMATSU AUDITORES INDEPENDENT, CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE SECURITIES LIMITED, CREDIT SUISSE, CREDIT SUISSE GROUP, GRANT THORNTON INTERNATIONAL AND GRANT THORNTON LLP, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Before: JACOBS, Chief Judge, B.D. PARKER and WESLEY, Circuit Judges. Appeal from an order of the United States District 35 Court for the Southern District of New York (Kaplan, J.), 36 denying the motion under 11 U.S.C. § 304 (repealed 2005) by 37 a debtor in bankruptcy abroad to enjoin actions brought 38 against it in the United States. 39 AFFIRMED. Judge Wesley dissents in a separate opinion. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KATHLEEN SULLIVAN (John B. Quinn, Peter E. Calamari, Loren Kieve, Terry L. Wit, Sanford I. Weisburst, Angela Nguyen, and William B. Adams, on the brief), Quinn Emanuel Urquhart Oliver & Hedges, LLP, New York, NY, for Appellants. STUART M. GRANT (James J. Sabella, John C. Kairis, and Diane Zilka, on the brief), Grant & Eisenhofer P.A., New York, NY; Steven J. Toll, Lisa M. Mezzetti, Mark S. Willis, and Joshua S. Devore, on the brief, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, D.C.; Robert M. Roseman, Andrew D. Abramowitz, Daniel J. Mirarchi, and Rachel E. Kopp of counsel, Spector Roseman & Kodroff, PC, Philadelphia, PA, for Plaintiff-Appellees. DENNIS JACOBS, Chief Judge: This appeal is taken from an order of the United States 29 District Court for the Southern District of New York 30 (Kaplan, J.), denying the motion by a debtor in foreign 31 bankruptcy proceedings to enjoin actions brought against it 32 in the United States. 33 Supp. 2d 723 (S.D.N.Y. 2007). 34 emerged from Parmalat s Italian bankruptcy proceedings. 35 Because the district court acted within its sound 36 discretion, we affirm. In re Parmalat Sec. Litig., 493 F. The debtor is the entity that 3 1 Background 2 Following its financial implosion in the wake of a 3 colossal fraud, Parmalat Finanziaria, S.p.A. and several of 4 its subsidiaries and affiliates ( Old Parmalat ) filed for 5 bankruptcy protection under Italy s newly-created Marzano 6 law. 7 declared Old Parmalat insolvent, and Italy s Minister of 8 Finance appointed appellant Dr. Enrico Bondi to serve as 9 Extraordinary Commissioner of Old Parmalat s bankruptcy 10 The bankruptcy court in Parma (the Parma Court ) estate, a role analogous to Chapter 11 Trustee. 11 A 12 13 Almost immediately after Old Parmalat filed for 14 bankruptcy in Italy, purchasers of Old Parmalat s debt and 15 equity securities (the Securities Fraud Plaintiffs ) filed 16 securities fraud class action lawsuits in the United States 17 (the Securities Fraud Actions ) against Old Parmalat and 18 against various banks and auditing firms that had allegedly 19 participated in the fraud. 20 Thornton International ( GTI ) and Grant Thornton, LLP 21 (collectively GT ). 22 Among the defendants were Grant In June 2004, Dr. Bondi, in his capacity as 4 1 Extraordinary Commissioner of the Old Parmalat bankruptcy 2 estate, petitioned the Southern District of New York 3 Bankruptcy Court to enjoin actions against the Old Parmalat 4 estate with respect to any property involved in its Italian 5 bankruptcy proceedings pursuant to § 304 of the Bankruptcy 6 Code, 11 U.S.C. § 304 (repealed 2005). 7 permitted a representative of a foreign bankruptcy estate to 8 commence a bankruptcy case in the United States in order to 9 enjoin litigation against the foreign debtor in U.S. Section 304 10 courts.1 11 what will best assure an economical and expeditious 12 administration of the foreign bankruptcy estate consistent 13 with, inter alia, just treatment of all holders of claims 14 against the estate, and comity. 15 bankruptcy court entered a preliminary injunction shielding 16 Old Parmalat from American lawsuits ( § 304 Injunction ), 17 and the Securities Fraud Plaintiffs dropped Old Parmalat as 18 a defendant. 19 20 It instructed courts to fashion relief guided by 11 U.S.C. § 304(c). The Once the § 304 Injunction was in place, Old Parmalat went on the offensive in United States courts. 1 Among other Though § 304 was repealed, it remains applicable to this case. See Pub. L. 109-8 (enacting Chapter 15 of the Bankruptcy Code and repealing 11 U.S.C. § 304 for all ancillary petitions filed after October 17, 2005). 5 1 initiatives, Old Parmalat sued GT for malpractice (the 2 Recovery Actions ). 3 All the while, Old Parmalat s Italian bankruptcy 4 proceedings continued. Pursuant to his duties as 5 Extraordinary Commissioner, Dr. Bondi proposed a 6 restructuring plan, the Concordato, which became effective 7 upon approval both by a majority of Old Parmalat s creditors 8 and by the Parma Court.2 9 of the 16 companies that composed Old Parmalat were Under the Concordato, the assets 10 transferred to a newly formed entity, appellant Parmalat, 11 S.p.A. ( New Parmalat ), of which Dr. Bondi is the CEO. 12 marked contrast to bankruptcy norms in the United States, 13 New Parmalat assumed all of the legal liabilities of its 14 predecessor companies. 15 16 17 18 19 20 21 22 23 In 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 2 Some creditors have appealed from the Italian bankruptcy court s approval of the Concordato. 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. 6 decision that has become final and, therefore, can no longer be challenged ( Late-Filing Creditors ) 1 2 3 4 5 are entitled to receive New Parmalat stock. Concordato ¶ 6 7.3b. 7 administrator, converting approved [late-filed] claims 8 against Old Parmalat into . . . equity interests in New 9 Parmalat. New Parmalat thus functions . . . as a claims In re Parmalat Sec. Litig., 493 F. Supp. 2d at 10 727. 11 Parmalat equity. 12 Liquidated claims are discharged upon receipt of New After New Parmalat came into being, the district court 13 permitted the Securities Fraud Plaintiffs to amend their 14 complaint to join New Parmalat as a defendant in the 15 Securities Fraud Actions as the successor to Old Parmalat. 16 New Parmalat appealed on the mistaken premise that the 17 district court s order was tantamount to denying New 18 Parmalat § 304 protection against direct securities fraud 19 claims. 20 yet considered whether to grant § 304 relief to New Parmalat 21 because the court had never received a motion seeking that 22 relief. 23 district court to expand the existing § 304 Injunction to But the district court explained that it had not New Parmalat withdrew its appeal and moved in the 7 1 bar the Securities Fraud Plaintiffs from bringing direct 2 claims against New Parmalat (the Expansion Motion ). 3 While the Expansion Motion was pending, the district 4 court granted another motion--this one brought by GTI and 5 Bank of America, N.A.--to narrow the § 304 Injunction to 6 permit certain parties (who were defendants in both the 7 Recovery Actions and the Securities Fraud Action) to file 8 third party contribution claims against New Parmalat based 9 on Old Parmalat s securities fraud (the Narrowing Order ). 10 The Narrowing Order contained a special feature: to the 11 extent that any judgment in favor of GTI, Bank of America, 12 or any other third party plaintiff, exceeds what the third 13 party plaintiff owes New Parmalat, enforcement of the 14 contribution claims will be allowed only in Italy. 15 words, while the third party plaintiffs can use American 16 judgments to set off their liability to New Parmalat, they 17 may collect no money from New Parmalat unless and until the 18 Italian courts choose to enforce the American court s 19 judgment. New Parmalat appealed, and we eventually 20 affirmed. See In re Parmalat Sec. Litig., 240 F.App x 916 21 (2d Cir. 2007). 22 8 In other 1 2 B While the appeal from the Narrowing Order was pending 3 in this Court, the district court denied New Parmalat s 4 Expansion Motion, a decision which effectively let the 5 Securities Fraud Plaintiffs bring direct (in addition to 6 contribution) claims against New Parmalat. 7 Sec. Litig., 493 F. Supp. 2d 723 ( Expansion Denial Order ). 8 This is the order now on appeal. 9 In re Parmalat In explaining the Expansion Denial Order, the district 10 court referred to its Narrowing Order (then on appeal, and 11 later affirmed, see infra), and the five considerations that 12 drove its decision there: (1) that economical and 13 expeditious administration of the Old Parmalat estate would 14 best be served by liquidating liability in the United 15 States, where relevant facts were already being litigated in 16 the Securities Fraud Litigation; (2) that comity would be 17 served because, while plaintiffs would be allowed to 18 liquidate their claims in the United States, they would be 19 enforced only in Italy, if at all; (3) that the Narrowing 20 order does not unfairly advantage GT because its 21 contribution claim will be permitted in some forum in any 9 1 event--if not in the United States, then in Italy; (4) that 2 Dr. Bondi s equitable claim to § 304 protection is weakened 3 by his affirmative Recovery Actions against Parmalat s 4 auditors and banks in the American courts rather than in 5 Italy; and (5) that settlement would be facilitated by 6 having all potentially liable parties before the district 7 court. 8 9 In denying the Expansion Motion, Judge Kaplan wrote that [t]he same considerations weigh against Section 304 10 relief here. In re Parmalat Sec. Litig., 493 F. Supp. 2d 11 at 739. 12 Narrowing Order permitted GTI s contribution claims against 13 New Parmalat, New Parmalat was already before the court to 14 litigate its fault for the securities fraud; as to comity, 15 the Italian courts would benefit from an American court s 16 determination of New Parmalat s liability under American 17 securities law (an issue the parties were already 18 litigating), and plaintiffs seek to liquidate their claims 19 in the United States, but would seek to enforce any judgment 20 only in Italy ; Dr. Bondi s claim to equitable relief was no 21 stronger than it was at the time of the Narrowing Order; and 22 denying § 304 relief would facilitate settlement. Specifically, Judge Kaplan reasoned: since the 10 Id. The 1 district court concluded: while denying Section 304 relief 2 undoubtedly would impose some expense on New Parmalat, the 3 Court is persuaded that the benefits in efficiency and 4 expeditiousness outweigh the costs. 5 Id. In sum, when § 304 motion practice concluded, New 6 Parmalat was subject both to contribution claims and to 7 direct claims for securities fraud in the district court. 8 9 Shortly after the district court denied New Parmalat s Expansion Motion, we affirmed the Narrowing Order. In re 10 Parmalat Sec. Litig., 240 F.App x 916. We emphasized that 11 the district court s decision to leave the enforcement (or 12 not) of any judgment against plaintiff-appellant to the 13 Italian courts was a sufficient measure of deference and 14 comity. Id. at 919. 15 16 17 Discussion We review the Expansion Denial Order for abuse of 18 discretion, see id. at 918; accord Bank of New York v. Treco 19 (In re Treco), 240 F.3d 148, 155 (2d Cir. 2001), mindful 20 that courts enjoy broad latitude in fashioning an 21 appropriate remedy under § 304, Koreag, Controle et 11 1 Revision S.A. v. Refco F/X Assocs., Inc. (In re Koreag, 2 Controle et Revision, S.A.), 961 F.2d 341, 348 (2d Cir. 3 1992). Subsection (c) of § 304 required that, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 11 U.S.C. § 304(c) (repealed 2005). 38 that the Expansion Denial Order violated § 304 s instruction 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. 12 New Parmalat contends 1 to assure an economical and expeditious administration of 2 the foreign estate, and that it was inconsistent with both 3 just treatment of all claimholders and comity . 4 I 5 6 We cannot say categorically that allowing the American 7 Securities Fraud Litigation to proceed before Judge Kaplan 8 will best assure an economical and expeditious 9 administration of the Old Parmalat bankruptcy estate. It 10 depends. On one hand, American litigation costs can be 11 exorbitant; on the other, it may cost New Parmalat less to 12 litigate the Securities Fraud Litigation here and now, given 13 the risk that the Securities Fraud Plaintiffs will bring 14 their American claims in the Parma Court. 15 is that of the United States, and the frauds alleged were 16 conducted in English. 17 to be litigated in Italy some time in the future, the Parma 18 Court would confront a foreign legal and regulatory scheme 19 to which (we are informed) there is no Italian analog, a 20 large number of documents in a foreign language, and (no 21 doubt) conflicting expert affidavits on what American The governing law If the Securities Fraud Action were 13 1 securities law requires. 2 assurance that, if excluded from American courts, the 3 Securities Fraud Plaintiffs would proceed in Italy at all. 4 All that said, we cannot say with So there are good reasons on either side of the 5 proposition that granting the Expansion Motion would best 6 assure an economical and expeditious administration of the 7 Old Parmalat estate. 8 court abused its discretion in denying the Expansion Motion. The question is whether the district 9 Of course, if we believed that the Parma Court would 10 view the district court as lacking jurisdiction (and that 11 the Parma Court would treat any American judgment as a 12 nullity), then we would reverse. 13 we assume the district court would not have entered its 14 order in the first place.) 15 Court has made no statement regarding the district court s 16 jurisdiction to liquidate the Securities Fraud Actions. (Under that circumstance, But, to our knowledge, the Parma 17 18 II 19 New Parmalat contends that the Expansion Denial Order 20 is inconsistent with just treatment of all claimholders, 21 11 U.S.C. § 304(c)(1), and comity, id. § 304(c)(5). 14 1 New Parmalat emphasizes that its shareholders are all 2 claimholders, and argues that the Expansion Denial Order 3 thus treats other claimholders unjustly by imposing 4 litigation costs on New Parmalat without any potential 5 benefit. 6 shareholders in any company that is made the defendant of a 7 legitimate lawsuit. 8 claimholders if the Securities Fraud Plaintiffs win a 9 judgment, which--at the direction of the Parma Court-- But the detriment is the same as that suffered by And it would do no injustice to other 10 results in issuance of New Parmalat stock. 11 of stock to the Securities Fraud Plaintiffs would dilute New 12 Parmalat s equity, thus reducing the value of existing share 13 holdings; but there is no cognizable injustice to one 14 claimholder in the satisfaction of claims properly presented 15 by another. 16 True, issuance Appellants argue (as they did when appealing the 17 Narrowing Order) that denying the Expansion Motion violates 18 § 304 s policy of comity. 19 the Narrowing Order, we considered the nature of Parmalat s 20 Italian bankruptcy proceedings and the Concordato, and we 21 concluded that to leave the enforcement (or not) of any 22 judgment against plaintiff-appellant to the Italian courts On New Parmalat s appeal from 15 1 was a sufficient measure of deference and comity. 2 Parmalat Sec. Litig., 240 F.App x at 919. 3 Expansion Denial Order makes clear that the courts of Italy 4 will decide whether or not to enforce any judgment that the 5 Securities Fraud Plaintiffs win in their direct suits 6 against New Parmalat, we adhere to the view that 7 international comity is respected. 8 9 In re Since the This appeal is distinguishable factually from New Parmalat s appeal of the Narrowing Order, but the 10 differences do not compel a different result on comity 11 grounds. 12 Bondi s Recovery Action to assert counterclaims, and thus to 13 set off any judgment Dr. Bondi might win against them, 14 whereas the Expansion Denial Order opens New Parmalat to 15 suit by parties unconnected to the Recovery Actions. 16 both cases, however, the orders are consistent with comity 17 because no third party plaintiff would be permitted to 18 collect on an American judgment without the Italian courts 19 approval. The Narrowing Order allowed the defendants in Dr. In 20 Finally, the district court s order does not violate 21 the dictate of Italian bankruptcy law that the bankruptcy 22 court has exclusive jurisdiction to satisfy creditors 23 claims. The Securities Fraud Plaintiffs are not yet 16 1 creditors of New Parmalat. Only if the Securities Fraud 2 Plaintiffs prevail in district court will they become 3 judgment creditors of New Parmalat; and, as creditors, they 4 will be required to submit their claims to the Italian 5 courts for enforcement. 6 III 7 8 New Parmalat complains that the district court 9 considered two factors not properly a part of the § 304 10 analysis: settlement potential and Dr. Bondi s offensive 11 litigation in the United States. 12 We are naturally inclined against judicial decisions 13 calculated to force a defendant to settle. See, e.g., In re 14 Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 148 15 (2d Cir. 2001) (Jacobs, J., dissenting). 16 dispute the district court s idea that consolidating 17 American securities claims before a single court would make 18 it easier for the parties to settle their differences 19 without a judicial determination of liability. 20 Parmalat Sec. Litig., 493 F. Supp. 2d at 739 (Expansion 21 Denial Order). 22 unclear whether the Concordato would allow for any such 23 settlement at all. But it is hard to This may or may not be true. See In re Indeed, it is But, in any event, since it is often 17 1 thought that settlement is more economical and expeditious 2 than litigation, the district court acted within the bounds 3 of its discretion in considering likelihood of settlement. 4 Finally, we see nothing improper about weighing Dr. 5 Bondi s offensive litigation in the United States: it is 6 incrementally harder for Dr. Bondi to contend that it is a 7 hardship for him to be where he has chosen to come. 8 IV 9 10 In dissent, Judge Wesley states that it is imprudent to 11 issue this opinion now because (in the parties words) the 12 parties do not believe that a disposition of the appeal at 13 this time would advance the interests of either party, and 14 because (in Judge Wesley s words) the relevance of this 15 Court s resolution of the appeal is entirely dependent upon 16 the outcome of the settlement approval process in the 17 Southern District. 18 following reasons: 19 We respectfully disagree for the First, the parties brought this controversy before us, 20 and they have not moved to withdraw it. 21 advise, this case is not moot--though no doubt it may become 22 moot if left undecided long enough. 23 24 As the parties Second, we expect that our opinion will be of use to the parties--as well as other persons and entitles: (1) the 18 1 district judge may want to consider whether the case is 2 properly before him as he decides whether to approve the 3 proposed settlement, see Fed. R. Civ. P. 23(e); (2) the 4 Italian courts--to which we owe a duty of comity unaffected 5 by the stated desires of the parties, and which would decide 6 whether to enforce the resulting judgment--may wish to know 7 whether the case (and settlement) was properly before the 8 district court; and (3) the class members, who must decide 9 whether to object to the proposed settlement, see Fed. R. 10 Civ. P. 23(e)(5), or possibly opt out of it, may want to 11 know whether an American court could hear their case in the 12 event they reject the settlement. 13 14 Conclusion 15 16 We cannot say with certainty what effect the Expansion 17 Denial Order may have on the economy and expeditiousness 18 with which the Old Parmalat estate will be administered. 19 But we cannot conclude that the district court abused its 20 discretion on that score. 21 satisfies us that Judge Kaplan did not act inconsistently 22 with any of the six considerations mandated by § 304(c). 23 New Parmalat s remaining arguments are meritless. 24 of the district court is therefore affirmed. And our review of the record 19 The order 1 2 WESLEY , Circuit Judge, dissenting: This appeal has changed dramatically (post-oral argument) as a consequence of an 3 executed settlement agreement now awaiting approval in the Southern District of New York. 4 Because this intervening event has materially changed the nature of an appeal that is presently on 5 the verge of resolution, the majority s affirmance strikes me as imprudent. Were it up to me, I 6 would have voted to stay the appeal, while retaining our jurisdiction to revisit it, should the 7 promise of final settlement not bear fruit. Even if I thought the majority s discussion of the 8 merits prudent, however, I would not think it correct. I therefore respectfully dissent. I. 9 10 Counsel for Plaintiff-Appellants informed the Court, by letter dated May 1, 2008, of the 11 possibility of an imminent settlement between the parties and, in light of that possibility, stated 12 that the parties jointly request that the Court refrain from issuing any decision on this appeal at 13 this time. 1 Letter of Counsel for Plaintiff-Appellees of May 1, 2008. The letter went on to say 14 that [i]f the settlement is approved, the appeal will be withdrawn. Id. As subsequently 15 revealed in the public press, the settlement agreement was ultimately executed, and now awaits 16 the confirmation of the district court.2 1 Counsel for Plaintiff-Appellees request[ed] that th[e] letter be filed under seal and not be made available to the public, but no motion to file under seal was granted by the Court and the issue, at this stage, is apparently moot. 2 The May 1 letter informed us only of the prospect of imminent settlement i.e., that the parties [were] on the verge of reaching a settlement in this matter (subject to court approval) but the agreement was, shortly thereafter, executed and made public. See Parmalat Settles U.S. Shareholder Suit, N.Y. Times, May 3, 2008, available at http://www.nytimes.com (visited July 21, 2008) (search for article title); see also Press Release, Parmalat, Settlement with class 20 The public announcement of a prospective settlement prompted this Court to solicit the 1 2 views of the parties on the impact of that agreement upon the instant appeal.3 By letter dated 3 May 12, 2008 (and assertedly joined in by Defendant-Appellants), counsel for Plaintiff-Appellees 4 stated that [t]he parties do not believe that the appeal, at this juncture, has been mooted by 5 reason of the execution of the settlement agreement. Letter of Counsel for Plaintiff-Appellees 6 of May 12, 2008. It continued: If the settlement is approved with finality, the appeal will be 7 moot, but if the settlement is not approved, it will not become effective and the appeal would not 8 be moot. Id. Finally, the letter stated that 9 10 11 12 13 14 15 16 [t]he parties do not believe that a disposition of the appeal at this time would advance the interests of either party. Because the settlement is not conditioned on the result of the appeal, the disposition of the appeal will not permit either party to withdraw from or request modification of the settlement. Id. In short, 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. 17 II. 18 In its opinion below, the district court contemplated the possibility of settlement in 19 conducting its § 304(c) analysis, concluding that having the claims against New Parmalat before 20 this Court along with the others alleged in the [third amended complaint] will aid the process of (May 2, 2008). 3 The order of this Court directed [the parties] to submit a letter to the Court . . . advising us as to whether, in view of the reported settlement of the underlying litigation: (1) the issue on appeal has been mooted; and, (2) a disposition of the appeal would advance the present interests of either party. In re Parmalat Sec. Litig., No. 07-2949, (2d Cir. May 5, 2008). 21 1 possibly settling this dispute. In re Parmalat Sec. Litig., 493 F. Supp. 2d 723, 739 (S.D.N.Y. 2 2007). Defendant-Appellants argued that the district court s weighing of the possibility of 3 settlement in its § 304(c) analysis constituted legal error and an abuse of discretion. 4 Appellants Br. 41. 5 There was merit, in my view, to New Parmalat s position. After all, the possibility of 6 settlement appears nowhere among the six enumerated factors that courts were directed to 7 consider under § 304(c). Venturing beyond the specific considerations codified under § 304(c) 8 may well have constituted an abuse of discretion. 9 Presumably, the district court thought that its consideration of the possibility of 10 settlement was relevant to § 304(c) s instruction that, [i]n determining whether to grant relief . . 11 . the court shall be guided by what will best assure an economical and expeditious administration 12 of such estate, consistent with the § 304(c) factors. 11 U.S.C. § 304(c). But it is at best unclear 13 whether the pressure upon New Parmalat to settle a suit arguably not properly before the district 14 court in the first place would have helped or hindered the estate. 15 In any event, this is now water under the bridge, for New Parmalat has executed the 16 settlement agreement with Plaintiff-Appellees, and seeks the district court s approval of that 17 agreement. As a result, New Parmalat s objections to the district court s jurisdiction over this 18 parallel proceeding, and to the district court s consideration of the possibility of settlement, take 19 on a quite different hue. Even if it was improper for the district court to consider the possibility 20 of settlement in its § 304(c) analysis prior to the settlement agreement, New Parmalat is now hard 21 pressed to maintain its former objections. After all, the decision to settle is one that New 22 1 2 Parmalat willingly undertook. At the same time, the parties ambivalence concerning the prospect of our now issuing an 3 opinion counsels caution, in my view, regarding the scope of our intervention. Thus, were I in 4 the majority, I would have held the appeal to revisit it in the event that the settlement does not 5 materialize. I think it unwise for this Court to address the merits of the dispute when the parties 6 appear to be eminently (and imminently) capable of resolving it themselves. 7 III. 8 Even in the absence of a pending resolution of this case, I could not concur in the 9 majority s discussion of the merits. First, the majority accepts as true Plaintiff-Appellants 10 argument that New Parmalat assumed all of the legal liabilities of its predecessor companies, 11 Maj. at 6, a view that despite being controverted by New Parmalat is a question best left to 12 the Parma Court. Cf. In re Artimm, S.r.l., 278 B.R. 832, 837 (Bankr. C.D. Cal. 2002). Second, 13 the majority overlooks as did the district court below a crucial distinction between Dr. 14 Bondi s posture in the Recovery Actions that he initiated in American courts, and the direct 15 securities actions filed against Bondi and New Parmalat, which he did not. Bondi s purely 16 defensive involvement in the latter proceedings is unlike his offensive initiation of recovery suits 17 on behalf of Old Parmalat.4 Third, the majority presumes that the Italian courts will be poorly 4 New Parmalat argues that Bondi s offensive litigation in his recovery suits and New Parmalat s defensive litigation here are different in yet another respect in the way they are treated by Italian law. Under Italian law, says New Parmalat, any court (Italian or foreign) outside the Italian Bankruptcy Court that liquidates or enforces claims against the estate will be deemed by the Italian Bankruptcy Court to be acting without jurisdiction, making its actions void. Appellants Reply Br. 12. In contrast, they argue, Italian law provides an exception for set-off actions perhaps including the compulsory counterclaims pressed by Grant Thornton 23 1 equipped to handle American securities fraud claims, but like the district court before it does 2 not weigh this fact against a number of other factors relevant to Italian law under § 304(c)(2), (3), 3 and (4), all of which counsel in favor of issuing an injunction.5 4 Fourth, although the majority is correct to note that any award in Plaintiff-Appellants 5 favor would ultimately need to be approved by the Parma Court, New Parmalat points out that 6 just defending against Plaintiffs claims here, aside from any potential costs of enforcement in against Bondi in response to Bondi s Recovery Action where the claims against the estate are brought by a third-party plaintiff creditor in response to the debtor s offensive suit. The exception would arguably not apply to the instant suit, however, where Plaintiffs claims are original, rather than counterclaims to Bondi s Recovery Action. 5 Section 304(c)(2) requires consideration of the protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding. 11 U.S.C. § 304(c)(2). Plaintiffs do not contest that Italian bankruptcy law comports with U.S. notions of fundamental fairness as it provides for notice, claims processing, and distribution similar to that provided for under U.S. law. Adinolfi v. Empire Marble & Granite, Inc. (In re Rosacometta, S.r.l), 336 B.R. 557, 565 (Bankr. S.D. Fla. 2005). Furthermore, the mere fact that [a creditor] would have to pursue his claim against [a debtor] in a foreign proceeding is not sufficient prejudice to deny relief. Schimmelpenninck v. Byrne (In re Schimmelpenninck), 183 F.3d 347, 364 (5th Cir. 1999). Section 304(c)(2) supports injunctive relief. Section 304(c)(3) requires consideration of the prevention of preferential or fraudulent dispositions of property of such estate. 11 U.S.C. § 304(c)(3). Plaintiffs do not contest that Italian insolvency law proscribes both preferential and fraudulent transfers. In re Rosacometta, S.r.l, 336 B.R. at 565. Section 304(c)(3) supports injunctive relief. Section 304(c)(4) instructs the court contemplating § 304 relief to consider whether the foreign bankruptcy proceeding will undertake distribution of proceeds of such estate substantially in accordance with the order prescribed by this title. 11 U.S.C. § 304(c)(4). Plaintiffs do not contest that the distribution of assets under Italian law is substantially in accordance with the order prescribed under United States law. In re Artimm, S.r.l., 278 B.R. at 843. Section 304(c)(4) supports injunctive relief. 24 1 Parma, would impose its own set of costs, justifying deference on comity grounds.6 Without 2 knowing the inner thoughts of New Parmalat and its counsel, we may speculate as to the role this 3 concern may have played in its decision to settle with Plaintiffs.7 But whether it would have 4 been proper for such pressures to impinge upon New Parmalat s decisionmaking (by virtue of the 5 district court s denial of New Parmalat s requested § 304(c) relief) is quite another matter. 6 This Court, as well as Congress through its adoption of the Private Securities Litigation 7 Reform Act of 1995 ( PSLRA ) has taken note of the pressures upon corporate defendants to 8 settle securities fraud strike suits when those settlements are driven, not by the merits of 9 plaintiffs claims, but by defendants fears of potentially astronomical attorneys fees arising 10 from lengthy discovery. See, e.g., Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 171 (2d 11 Cir. 2005) (Jacobs, J.) (noting the congressional intent of the PSLRA to deter strike suits 12 wherein opportunistic private plaintiffs file securities fraud claims of dubious merit in order to 13 exact large settlement recoveries. (quoting Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir. 2000)); 6 Indeed, one initial public report indicated that, pursuant to the pending settlement agreement, Parmalat agreed to issue 10.5 million shares, then valued at $36.8 million, to satisfy the class members claims. Parmalat Settles Shareholder Lawsuit, N.Y. L. J. May 5, 2008. The full cost incurred by the estate did not include such transactional costs as, for example, notifying the members of the class of the settlement, an expense then estimated to be as much as $1.55 million. Id. 7 We need not speculate, however, on the reasons that Parmalat has itself offered for its decision to accept the settlement: Parmalat believes that this settlement is in the best interests of its shareholders to avoid the distraction and expense of further litigation, and diminishes uncertainty in the value of its stock. Press Release, Parmalat, Settlement with class (May 2, 2008). That uncertainty was, in part, the result of Plaintiffs allegations of the loss of billions of dollars by investors, (Third Am. Compl. ¶ 4) forming a class whose exact number . . . [was] unknown to Plaintiffs at th[e] time of the filing of the complaint, but which Plaintiffs estimated to number in the thousands (id. ¶ 1139). 25 1 Cal. Pub. Employees Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 98 (2d Cir. 2004) ( The PSLRA 2 was intended to curtail strike suits i.e., meritless class actions alleging fraud in the sale of 3 securities. See H.R. Conf. Rep. No. 105-803 (1998). ). See also Lander v. Hartford Life & 4 Annuity Ins. Co., 251 F.3d 101, 107 (2d Cir. 2001) (same). 5 Finally, while the views of the Italian Ministry of Economic Development (as made 6 available to us in an amicus submission) are unquestionably relevant to the consideration of 7 comity under § 304(c)(5), cf. Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir. 2006) 8 (reversing, in a non-§ 304 suit, the district court s dismissal of plaintiffs suit on comity grounds, 9 noting that, [t]hroughout the long pendency of this lawsuit, the Government of Egypt has never 10 raised the slightest objection to adjudication of the instant controversy by United States courts ), 11 those views are never acknowledged by the majority. Despite its absence from the majority s 12 opinion (as well as from the record below8), the amicus brief achieves added importance in light 13 of the Ministry s role in both administering the Marzano Law and in approving Bondi s 14 reorganization plan. IV. 15 16 This Court s docket is awash with pressing matters vying for our attention. The majority 17 has chosen to allocate already stressed judicial resources to an issue that is not similarly exigent, 18 and despite the parties express request that we hold our fire. It is arguable, I suppose, that the 19 executed settlement agreement now awaiting approval confirms the wisdom of the district court s 8 The district court cannot be faulted in this regard, for the amicus submission was not before that court. 26 1 decision. But such an inference would overlook the fact well known by those who practice in 2 this field that settlements are often struck, not because of the persuasiveness of plaintiffs 3 claims, but because the alternative (or even the possibility of the alternative) is too costly to 4 contemplate. 5 Whether these same concerns animated New Parmalat s settlement decision is not 6 something we can know for certain, but what is clear is that the ends of settlement, alone, cannot 7 justify the means employed by the district court below. The statute at issue does not speak to the 8 district court s inherent power to hear this case. It lays out a rule of judicial discretion that must 9 be measured by restraint. In my view, the district court erred as a matter of law in adding a factor 10 to its comity equation while overlooking important additional factors required by the statute. In 11 issuing its majority opinion, this Court compounds the error done by adding to its jurisprudence 12 when neither necessity nor efficiency is served by it. I therefore respectfully dissent. 27

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