Tuesday, December 11, 2018

According to BankruptcyData: SERVICOS DE PETROLEO CONSTELLATION S.A. – BRAZILIAN DRILLING COMPANY SEEKS US RECOGNITION OF BRAZILIAN BANKRUPTCY PROCEEDINGS, ANNOUNCES CREDITOR AGREEMENTS

It has been a long time rule of English law that debt incurred under English law cannot be discharged in a foreign proceeding.  It can only be discharged under English law.  

Debt incurred under U.S. law has sometimes been thought of as not being subject to this basic and intuitive choice of law principle.  But, in fact, there is a limitation on the ability of foreign courts to protect foreign companies with debt incurred under U.S. law, including New York law (which may apply to various loan contracts and other financing arrangements) and the Trust Indenture Act (applicable to certain bond debt).


There is a race-to-the-courthouse dynamic among the creditors that hold debt governed by U.S. law and the debtors that owe it. 

For example, coverage of the chapter 15 bankruptcy proceedings of Brazilian oil and gas company Constellation, filed in the Southern District of New York, reflects that creditors of a foreign company with U.S. law governed debt can take action in the United States to collect.  In Constellation's case the coverage suggests that the debtors' run to a Manhattan federal courthouse achieved temporary protection from their creditors under chapter 15 of the Bankruptcy Code.  

http://www.bankruptcydata.com/news-story/servicos-de-petroleo-constellation-sa-brazilian-drilling-company-seeks-us-recognition-of-brazilian-bankruptcy-proceedings-announces-creditor-agreements-2018-12-06-95069

http://news.morningstar.com/all/dow-jones/us-markets/201812079052/brazils-constellation-group-files-for-bankruptcy-in-the-us.aspx

https://www.wsj.com/articles/u-s-judge-approves-protections-for-brazils-constellation-group-1544474889?tpl=bankruptcy

Friday, November 2, 2018

Ocean Rig Sends Conflicting Signals



George Economou stepped down from serving as Ocean Rig's CEO last December, following the company's bankruptcy filing.  With respect to the March 2017 bankruptcy filing Economou explained:

Our entire team at Ocean Rig is wholly committed to the success of the company and looks forward to emergence from this financial restructuring that will ultimately enable us to better serve our customers in the long term.

Ocean Rig disclosed this year in an August 8 press release a net loss of $19.1 million and that it was postponing delivery of the Ocean Rig Crete to September 30, 2020.  Ocean Rig's new CEO Pankaj Khanna sent an optimistic message, closing with:

We are starting to see signs of increased spending in the offshore sector as tenders and requests for information keep coming in.  Based on market reports this is the highest level of enquiry since 2012. While we do not expect any material changes in drilling rates in the near future we project better utilization of the floater fleet and a rate recovery in 2019.  We believe that we are well positioned for a recovery in the floater market whenever this occurs.

On September 4 - less than a month after Ocean Rig's CEO Pankaj Khanna expressed belief the company was well positioned for a recovery in the floater market - Transocean Ltd. announced a proposed acquisition of Ocean Rig, representing it had been unanimously approved by the board of directors of each company.  Transocean and Ocean Rig made a Joint Proxy Statement/Prospectus as part of seeking shareholder approval.

The Transocean/Ocean Rig Joint Proxy Statement/Prospectus, reveals that former CEO George Economou, through Marshall Islands registered TMS Offshore Ltd., which may be deemed to be beneficially owned by him, will be paid a 'convenience termination fee' of up to $134 million.'

Transocean is perhaps best known for the deadly Deepwater Horizon explosion.  More recently, Bloomberg reported that Transocean had been linked to the Petrobras corruption probe, described by Bloomberg as Brazil's biggest corporate scandal.

Ocean Rig is defending against a shareholder appeal before the U.S. Court of Appeals for the Second Circuit, which is the highest federal court in the United States other than the Supreme Court.  I filed the appeal seeking to achieve review of injunctions obtained by Ocean Rig from a U.S. bankruptcy court.



Sunday, October 14, 2018

The United States District Court for the Southern District of New York and the United States District Court for the Eastern District of New York have adopted the NextGen CM/ECF Electronic Filing System. Action is Required. CM/ECF users must follow instructions provided by the Courts to electronically file with them after October 9, 2018.

Electronic filing - also referred to as efiling - with federal courts has become normal in most jurisdictions.  Some courts continue to accept paper filings, and some do not. 

Court clerks' offices that accept paper filings typically accept them during business hours (or certain hours from 9 am to 5 pm).  People wishing to file at other hours are instructed to use secure drop boxes.  

Some courts have hybrid procedures so, for example, filings are made with the courts electronically and hard copies of briefs need to be hand delivered or sent to the courts by mail or courier.

Most attorneys find electronic filing more convenient than paper filing because the electronic filing system is usually available 24 hours a day, 7 days a week.  Electronic filing saves paper and is more friendly to the environment, though some people still prefer to use paper.

Once an attorney is admitted in a jurisdiction and has obtained a username and password (and in some jurisdictions taken a mandatory electronic filing class) then the attorney can make filings just about any time of day or night.  Pro se parties are also able to file electronically under some circumstances.  Permission is required.

Action is required in order to keep filing electronically with the United States District Court for the Southern District of New York and the United States District Court for the Eastern District of New York.  An Announcement was made recently advising electronic filers that, starting on October 9, 2018, these courts would be adopting the NextGen CM/ECF system and filers would need to take steps to continue to be able to file electronically.  Certain steps needed to be taken before the courts made the change and others after, as specified.  

The steps specified by the courts will make sense to most people who are accustomed to making their own filings.  People who rely on other people to file documents may want to seek help.

I make my own filings.  I was able to take the steps necessary to keep filing for one of the courts without any technical support.  For the other court I called to ask a question and the help desk was quick to assist.  I am now able to continue efiling with the United States District Court for the Southern District of New York and the United States District Court for the Eastern District of New York.

I am posting this information to help spread the word because the steps need to be taken or else people trying to file using the system they have been using will be unable to proceed.  If that comes as a surprise when a filer is trying to meet a deadline the deadline may be missed.

For the upgrade by the United States Bankruptcy Court for the Southern District of New York, go to my earlier blog post.  

In addition to running my own practice of law, I sometimes serve as local counsel to attorneys based outside of New York.  I also use the services of local counsel in other jurisdictions on some occasions.  I hope readers find this blog post helpful.  I welcome related comments on the blog.  Questions can be emailed to tally.wiener@thecomi.com.

Thursday, August 2, 2018

Alert About Filing Documents Electronically with the US Bankruptcy Court for the Southern District of New York

One of the important aspects of practicing law in the information age is understanding that there is a duty of technology competence.  Can an attorney get help with tasks requiring a working understanding of how to use technology?  Yes.  While tasks can be delegated, responsibility cannot be delegated.

There are a variety of approaches for dealing with this in a litigation practice.  The approach I recommend is the one I have employed in my litigation practice - being enthusiastic about learning and keeping up with developments in technology.  It is also helpful to have IT support in the form of a knowledgeable person who is available to assist; as a basic courtesy the person should be asked to block out the time to be available to assist with as much notice as possible.

There are rewards, including the satisfaction of working up legal papers and then being able to file them yourself.  Alternatives include waiting for somebody else, who will be using your password, whose actions you are responsible for, who may be tired after waiting for hours while a document is finalized for filing.  Risks include you will not communicate clearly what you want and get a result that reflects this, which may necessitate amended filings, requests for forgiveness from your opposing counsel or Court intervention.  You could also miss a deadline.  Gasp.  None of these things are the end of the world.  But given they are avoidable with some planning, isn't it best to plan?

With that, let's get into the alert that the United States Bankruptcy Court for the Southern District of New York sent by email yesterday concerning changes to electronic filing (e-filing) procedures.  It came under the subject heading: CM/ECF Outage & NextGen CM/ECF Implementation Scheduled 10/19/18 - 10/21/18.  The word "Outage" is attention grabbing. Many lawyers, at least those not on vacation or otherwise preoccupied, likely forwarded the email to their assistants and then put it out of their minds or made a mental note to come back to them.

A risk of proceeding in this fashion is missing the message the Court sent - you will need to do something if you want to keep filing documents with the Bankruptcy Court for the Southern District of New York electronically!

The Court also advised that the electronic filing system will be down for a couple of days starting October 19, 2018 at 8:30 AM (Eastern Standard Time).

The Court's notice that was delivered by email yesterday is reproduced below by way of helping spread the word so that people within and outside New York know about it and can prepare.

My law offices have a lot of experience with electronic filing.  I worked as an employee of one of the first federal judicial districts that tested out the electronic filing system that was brand new at the time.  I have over a decade of experience making electronic filings with trial and appellate courts in my clients' cases, and have helped other lawyers by serving as their co-counsel or local counsel in New York. If you or someone you know anticipates filing documents with the United States Bankruptcy Court for the Southern District of New York and wants to understand the changes coming into effect, I urge you to review the notice below and prepare.

I welcome comments on this blog post and questions can be emailed to me at tally.wiener@thecomi.com.  If I can help you, please do not hesitate to reach out.


United States Bankruptcy Court
for the
 Southern District of New York
______________________________________________________________________________
NOTICE TO THE BAR
August 1, 2018
CM/ECF Outage & NextGen CM/ECF Implementation
On October 19, 2018, at 8:30 AM (EST), the Bankruptcy Court for the Southern District of New York will take CM/ECF offline in order to update to NextGen CM/ECF ("NextGen").  As a result, e-filing will be unavailable through October 21, 2018. Parties with an October 19, 2018 filing deadline should plan to complete their filing prior to 8:30 AM (EST) that day.  Papers not filed electronically may be filed with the Court by depositing them in the night depository maintained by the District Clerk and will be deemed filed as of the date and time stamped thereon.  Any required fees for such filings must be delivered to the Clerk's Office no later than noon on the next business day. Refer to Local Bankruptcy Rule 5001-1 for further guidance http://www.nysb.uscourts.gov/sites/default/files/LocalRules2017.pdf.  We expect the system to be available again for e-filing on Monday, October 22, 2018 at 8:30 AM (EST). The Court's update to NextGen will require filers to take steps to update their CM/ECF and PACER accounts in order to continue to file electronically.  NextGen simplifies electronic filing by combining your CM/ECF and PACER accounts into a single Central Sign-On account.  Through the PACER website, filers will use one login and password to electronically file in all NextGen courts where they have permission to file.  Filers will no longer need a separate CM/ECF account for each NextGen court.  All Federal Courts are expected to eventually adopt NextGen.  Click https://www.pacer.gov/psco/cgi-bin/links.pl to see a list of current NextGen courts.
 What should I do next? 

  • Before October 22, 2018, upgrade your PACER account if you have not already done so athttps://www.pacer.gov/nextgen/. Each filer must have his or her own PACER account.  Shared PACER accounts will not work with NextGen.  Please note, PACER accounts created after August 11, 2014, are already upgraded accounts.

  • Beginning October 22, 2018, after New York Southern converts to NextGen, you must link each of your login accounts to your PACER account to electronically file.

Failure to complete these steps will prevent you from successfully electronically filing after NextGen goes live.
  • We look forward to assisting you in this transition to NextGen. More information is available below.                                                           
PACER          - On the web at https://www.pacer.gov/ecfcbt/cso/index.html
                         Email PACER at pacer@psc.uscourts.gov
                         Call PACER at (800) 676-6856

NYSB            - On the web at https://www.nysb.uscourts.gov
                         Email us at courtservices@nysb.uscourts.gov                          Call Court Services at 212-668-2870, Option 3





Tuesday, July 3, 2018

Succession &/@ Ocean Rig

The new HBO series Succession captures moments in the life of a wealthy family confronting the reality its patriarch will at some point step away from his job.  In last week's episode, I Went to Market, the family comes together to celebrate Thanksgiving, consuming enough alcohol for some family members to share their honest opinions of others.  Some leave early.  It may not be the worst of their experiences together, but it is a situation among those referred to in contemporary slang as a dumpster fire.

A theme of Succession has been that the father, who heads the publicly traded media conglomerate that employs some of the children, has managed to keep things under control for years.  When the father (Logan Roy, played brilliantly by Brian Cox), is temporarily not at the helm of the company (Waystar Royco), it turns out that the family's stock in the company secures a loan that the lender can call if the stock drops below a certain price.  This creates a multi-billion dollar problem in the father's absence because speculation over the fate of the company could cause a drop in the stock price.  To explain how this is dealt with could be a spoiler, so let's just say a person willing to handle the situation is later advised: "You are a f*cking idiot."  (This is a very harsh statement that may prove to be true.  Stay tuned.)

Watching the show's second episode, Sh*t Show at the F**k Factory was thought provoking for me as an attorney who works on financial restructurings.  At first the title seemed remarkably vulgar but as the episode progressed and in the weeks after it aired I have come to appreciate its title may cover, albeit indelicately, a lot of corporate situations that likewise appear to be stable when there is a mess really, just beneath the surface...

A few months after entering into a court process in the Cayman Islands that led to appointment of provisional liquidators, Ocean Rig's Chief Executive Officer (CEO) George Economou and his nephew Anthony Kandylidis, Ocean Rig's Chief Financial Officer (CFO) left these roles with publicly traded Ocean Rig (Nasdaq ticker symbol ORIG).  In the lead up to and following the announcement of their succession at the end of December 2017, Ocean Rig is not what it used to be.  This is so even taking into account that the past few years have been tough for some in the offshore oil drilling industry the company services with its drillship and rig rental business.  Late last year Reuters reported that its sources advised Ocean Rig was "preparing to explore a sale amid pressure from some of its largest shareholders to review its strategic alternatives."  At the time of this writing, most of the company's rigs are not under contract.  The former CEO and CFO are defendants in a shareholder class action alleging improprieties with respect to DryShips (Nasdaq ticker symbol DRYS), another publicly traded company they helped run together.  There is also Ocean Rig related litigation pending in the United States and in the Marshall Islands, prosecuted by investors in the company, including the author of this post.

Now - would the situation be any better without the succession of the uncle/nephew team who helmed Ocean Rig as chief executive and financial officers?  We will never know.  For its part, HBO's Succession remains unpredictable.  Episode 6, Which Side Are You On? is due to air this coming Sunday, the 8th of July.  With the Roy family's Thanksgiving being as intense as it was, let's hope it's not Christmas for them just yet!

Wednesday, July 8, 2015

Who will rescue the bankrupt American firearms maker Colt?

According to The Desert Sun, the Morongo Band of Mission Indians is considering investing in or purchasing Colt.  A specialist in tribal finances observes that "they've got a very sophisticated operation.... If there is a viable economic opportunity (in Colt) Morongo is a tribe that's well positioned to take it over."


For more, see http://www.desertsun.com/story/money/business/2015/07/08/morongo-tribe-colt-firearms-bankruptcy/29869485/


The Tribe's counsel first appeared in the case on June 25, 2015.  http://www.kccllc.net/coltdefense/document/1511296150625000000000006


Will the Tribe save Colt, or will other prospective financiers come forward?  Time will tell. 


Meanwhile, people interested in the Colt bankruptcy proceedings, which are pending in Delaware, can access the Bankruptcy Court's docket and other publicly available information for free online at http://www.kccllc.net/coltdefense/ 

Monday, September 15, 2014

Statement of US Treasury Secretary Jacob J. Lew On The Sixth Anniversary Of The Bankruptcy Filing Of Lehman Brothers

All day I have been thinking that September 15 is a significant date, but I couldn't remember why.  And finally I remembered why.  On September 15, 2008, Lehman Brothers filed the largest bankruptcy in United States history.  And so, today is the 6 year anniversary....

Per http://bankruptcy.einnews.com/article/223896208/9Gilzx68J31h45VH:

Date 15/09/2014
Treasury Secretary Jacob J. Lew today released the following statement on the sixth anniversary of the bankruptcy filing of Lehman Brothers, the largest in U.S. history:
"Six years ago this month, our financial system was shocked to its core.  The damage this crisis unleashed spread throughout our economy, and the result was massive job loss, waves of business failures, devastating home foreclosures, decimated retirement accounts and an economy on the brink of another Great Depression.  It was set in motion by weaknesses in our system — including irresponsible leverage, excessive risk-taking, reckless and too often predatory lending, and inadequate oversight.
Because of the immediate crisis response, the effective policies put in place by the Federal Reserve, both presidents Bush and Obama, the resilience of the American people and the determination of our businesses, our economy is stronger today than it was when the crisis erupted.  In addition, our financial system is more stable and more resilient.  That is because President Obama — who was determined to make sure families, workers and businesses would not have to endure such a crisis again —pursued financial reform.  And now, international confidence in our markets is robust, risk is being monitored and mitigated, financial products are more transparent, banks are better prepared to withstand economic stress, and there are common-sense rules of the road to protect taxpayers, investors, and consumers. 
Looking ahead, we will continue down the path of reform to implementing the Wall Street Reform and Consumer Protection Act as well as working to enhance global protections and raise international standards around the world.  Even after we meet those obligations, however, our work will not be done.  If we can say anything from today's vantage point with absolute certainty, it is that our financial system is dynamic and much safer than before the crisis due to the policies we have put in place, but unforeseen threats to stability are bound to emerge, and the need to remain vigilant will always be ongoing."


Tuesday, November 5, 2013

Could principles of Islamic finance feed into a sustainable economic system?

A recent article in The Guardian concludes: The sharia principle that no one should profit purely from loans might contribute towards a sustainable economy.

For more see: 

http://www.theguardian.com/sustainable-business/islamic-finance-sustainable-economic-system

Wednesday, January 9, 2013

Business Chiefs Warn Cameron Of EU Exit Dangers

Per www.globalinsolvency.com:


Thu., January 10, 2013
David Cameron will damage Britain's fragile economy if he demands major changes that could threaten the country's relationship with the European Union, business leaders said on Wednesday, Reuters reported. In an open letter, the heads of some of Britain's biggest companies said Britain can't afford to quit a market of 500 million people that buys half of its exports. Other countries in the 27-nation bloc would probably reject Cameron's attempts to claw back powers from Brussels, isolating the country from its biggest trading partner, they said. "We must be very careful not to call for a wholesale renegotiation of our EU membership, which would almost certainly be rejected," they wrote in a letter to the Financial Times. "To call for such a move in these circumstances would be to put our membership of the EU at risk and create damaging uncertainty for British business." But asked in parliament about Britain's EU role, Cameron repeated his pledge to renegotiate its position. "There are changes we would like in our relationship that would be good for Britain and good for Europe," Cameron said. He is due to give a long-delayed speech setting out his European policy in mid-January, his spokesman has told reporters.