In a major decision interpreting chapter 15 of the Bankruptcy Code, Judge Harlin Hale has denied recognition of the provisions of the “Concurso” order obtained by Vitro, SAB in Mexico which would have released the liability of its non-bankrupt U.S. subsidiaries. The Court carefully avoided any rulings which would have cast aspersions upon the Mexican legal proceedings while finding that U.S. law would not recognize the specific provision. In re Vitro, SAB, No. 11-33335 (Bankr. N.D. Tex. 6/13/12). The opinion can be found here.
Vitro S.A.B. de C.V. is a holding company formed in Mexico in 1909. It operates its business through a network of subsidiaries. It is the largest manufacturer of glass containers and flat glass in Mexico and its name is Latin for glass. Vitro borrowed approximately $1.225 billion in unsecured notes which were guaranteed by virtually all of its subsidiaries. Vitro also agreed to repay approximately $2.0 billion to its subsidiaries under circumstances which raised questions from its third party creditors.
When the global recession hit in 2008, Vitro could not pay its debts. In November and December 2010, proceedings were filed in four different jurisdictions seeking to address the Vitro debts.
1. On November 17, 2010, some of Vitro’s American creditors filed involuntary petitions against fifteen of Vitro’s American subsidiaries in the Bankruptcy Court for the Northern District of Texas. Ultimately, four of the debtors consented to relief and an additional two debtors filed voluntary petitions.
2. On December 2 and 9. 2010, Vitro’s American creditors filed suit against Vitro and 49 of its subsidiaries in state court in New York.
3. On December 13, 2010, Vitro filed a a voluntary judicial reorganization proceeding under the Ley de Concursos Mercantiles (the “Mexican Business Reorganization Act”) in the Federal District Court for Civil and Labor Matters for the State of Nuevo León, the United States of Mexico, seeking approval of a pre-packaged, “concurso” restructuring plan.
4. On December 14, 2010, Vitro filed a chapter 15 proceeding in the Bankruptcy Court for the Southern District of New York.
While these filings set up the multinational squabble, this was only the beginning. In Mexico, the pre-pack was rejected based on a finding that the subsidiaries were not entitled to vote. The initial chapter 15 petition in New York was withdrawn after this filing. On appeal, the Mexican court reversed and allowed the subsidiaries to vote. A new chapter 15 proceeding was filed in New York. However, the New York chapter 15 proceeding was transferred to the Bankruptcy Court for the Northern District of Texas. The Bankruptcy Court for the Northern District of Texas granted a preliminary injunction against proceedings against the Vitro parent but not the subsidiaries. The American creditors sought an order prohibiting the American subsidiaries from voting upon the Mexican concurso but were rebuffed.
The Mexican concurso was ultimately approved based upon the votes of the subsidiaries. The concurso provided that the guarantees of the subsidiaries could not be enforced. Thus, the subsidiaries were able to vote in favor of a plan which released their guarantees. This set the stage for the Mexican representative of Vitro to seek an order from the Bankruptcy Court for the Northern District of Texas recognizing the concurso and enforcing the order to release the subsidiaries from their guarantees.
1. Vitro borrowed over a billion dollars guaranteed by its subsidiaries.
2. Vitro filed a pre-packaged bankruptcy plan in Mexico.
3. Vitro’s pre-pack was approved based on the votes of its subsidiaries.
4. The Mexican plan released the subsidiaries from liability.
5. The Bankruptcy Court for the Northern District of Texas was asked to recognize the order from the Mexican Court.
The Comity Question
This left the Bankruptcy Court with a difficult question: should it enforce the Mexican concurso as a matter of comity or was there a countervailing rule under American law? Fortunately for the court, chapter 15 provides some guidance. Under section 1507(b), an American bankruptcy court may provide “additional assistance” to a foreign debtor, but only if five conditions are met, including that American creditors are treated fairly and the distribution scheme is substantially the same as provided under title 11. Additionally, section 1506 allows the Bankruptcy Court to decline to enforce the order of a foreign court if it would be manifestly contrary to the public policy of the United States.”
Whether to recognize a foreign court order under section 1507(b) is largely a matter of comity. While comity and comedy sound very similar they have strikingly different meanings. According to Judge Hale:
Comity should be the Court’s primary consideration when applying § 1507(b). (citation omitted). Comity has been defined as the “recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protections of its laws.” (citation omitted). Granting comity to judgments in foreign bankruptcy proceedings is appropriate as long as U.S. parties are provided the same fundamental protections that litigants in the United States would receive.
. . . “The principle of comity has never meant categorical deference to foreign proceedings. It is implicit in the concept that deference should be withheld where appropriate to avoid the violation of the laws, public policies, or rights of the citizens of the United States.” (citations omitted).
Opinion, pp. 7-8.
In ruling upon the parties’ contentions, the Court divided its ruling into objections it rejected, objections it sustained and issues it did not reach.
The Court rejected the argument that it should not enforce the Mexican order because of corruption in Mexico. While the creditors’ expert presented evidence of corruption in Mexico in general, it did not connect this to the specific case. Additionally, the objecting creditors’ expert on Mexican law testified that in forty years’ practice, he had never bribed a judge. While the Court’s conclusion appears to be sound, as well as avoiding offense to America’s neighbor to the south, the implicit suggestion that corruption should be proved by bringing testimony from a witness who has personally participated in corruption is a bit unsettling.
The Court also dismissed a number of arguments based on fairness and compliance of Mexican law on the basis that these were issues best left to the Mexican court system.
However, in the end, the Court concluded that American law would not allow a plan of reorganization which granted wholesale releases to non-debtor parties. The Court stated:
Generally speaking, the policy of the United States is against discharge of claims for entities other than a debtor in an insolvency proceeding, absent extraordinary circumstances not present in this case. Such policy was expressed by Congress in Bankruptcy Code Section 524, and in numerous cases in this circuit. (citations omitted). This protection of third party claims is described both in terms of jurisdiction and also as a policy. (citations omitted).The Fifth Circuit has largely foreclosed non-consensual non-debtor releases and permanent injunctions outside of the context of mass tort claims being channeled toward a specific pool of assets. (citations omitted).
Opinion, p. 25. The Court ultimately concluded that the guarantor release provision of the concurso was contrary to American law and should not be enforced. While the Court’s conclusion may be sound, it is curious that the Court did not discuss case law out of the Northern District of Texas allowing a plan to enjoin pursuit of claims against a non-party who contributes property necessary to the success of a plan which was approved by the creditors and will pay unsecured creditors 100% of the amount of their claims. In re Bernard Steinhard Pianos USA, Inc., 292 B.R. 109 (Bankr. N.D. Tex. 2002); In re Seatco, Inc., 257 B.R. 469 (Bankr. N.D. Tex. 2001). Perhaps the Court felt that those cases were too far different from those of Vitro. However, an acknowledgement of what would constitute “extraordinary circumstances” would have been welcome.
The bottom line here is that comity is a good thing, but not when it means an end run around American law as applied to American creditors of an American subsidiary of a foreign company.
The Fifth Circuit has approved a direct appeal and has temporarily stayed enforcement of the decision.