13

‐ 3000

Krys v. Farnum Place, LLC

1



## In the 2



# United States Court of Appeals

3



## For the Second Circuit 4

________ 5

6

A UGUST T ERM

, 2013 7

8

A RGUED : M AY 21, 2014 9

D ECIDED : S EPTEMBER 26, 2014 10

11

No. 13

‐ 3000 12

13

I N RE : F AIRFIELD S ENTRY L IMITED 14

Debtor. 15

16

K ENNETH K RYS

, in his capacity as the duly appointed liquidator and 17

foreign representative of Fairfield Sentry Limited, 18

Appellant, 19

20

v. 21

22

F ARNUM P LACE

, LLC, 23

Appellee. 24

________ 25

26

Before: N EWMAN

, W ALKER

, C ABRANES

, Circuit Judges

. 27

________ 28

29

Appeal from the July 3, 2013 order of the United States District 30

Court for the Southern District of New York (Hellerstein, J .) 31

affirming the January 10, 2013 order of the United States Bankruptcy 322

Court for the Southern District of New York (Lifland, J. ) declining to 1

conduct, in a Chapter 15 ancillary bankruptcy proceeding, a section 2

363 review of a sale of the claims of Fairfield Sentry Limited 3

(“Sentry”), a British Virgin Islands investment fund, in the 4

liquidation of Bernard L. Madoff Investment Securities LLC 5

(“BLMIS”) under the Securities Investor Protection Act (“SIPA”) 6

because: (1) the sale does not involve a section 1520(a)(2) transfer; 7

and (2) comity dictates deference to a British Virgin Islands Court’s 8

judgment approving the sale. Because we conclude that the sale of 9

the SIPA claims is a “transfer of an interest of the debtor in property 10

that is within the territorial jurisdiction of the United States,” 11 11

U.S.C. § 1520(a)(2), and therefore the sale is subject to review under 12

section 363, and comity is not warranted, we vacate and remand. 13

________ 14

15

P AUL D. C LEMENT

, Bancroft PLLC, Washington, 16

DC, (David J. Molton, May Orenstein, Daniel J. 17

Saval, Marek Krzyzowski, Brown Rudnik LLP, 18

New York, NY, on the brief) for Appellant. 19

20

K ATHLEEN M. S ULLIVAN (Robert C. Juman, Scott 21

C. Shelley, Cleland B. Welton II, Eric D. Winston, 22

Shane McKenzie, Matthew Scheck, on the brief )

, 23

Quinn Emanuel Urquhart & Sullivan, LLP, New 24

York, NY for Appellee

. 253

________ 1

2

J OHN M. W ALKER

, J R

., Circuit Judge : 3

Appeal from the July 3, 2013 order of the United States District 4

Court for the Southern District of New York (Hellerstein, J .) 5

affirming the January 10, 2013 order of the United States Bankruptcy 6

Court for the Southern District of New York (Lifland, J. ) declining to 7

conduct, in a Chapter 15 ancillary bankruptcy proceeding, a section 8

363 review of a sale of the claims of Fairfield Sentry Limited 9

(“Sentry”), a British Virgin Islands investment fund, in the 10

liquidation of Bernard L. Madoff Investment Securities LLC 11

(“BLMIS”) under the Securities Investor Protection Act (“SIPA”) 12

because: (1) the sale does not involve a section 1520(a)(2) transfer; 13

and (2) comity dictates deference to a British Virgin Islands Court’s 14

judgment approving the sale. Because we conclude that the sale of 15

the SIPA claims is a “transfer of an interest of the debtor in property 16

that is within the territorial jurisdiction of the United States,” 11 17

U.S.C. § 1520(a)(2), and therefore the sale is subject to review under 18

section 363, and comity is not warranted, we vacate and remand. 194

BACKGROUND 1

Sentry is a British Virgin Islands (“BVI”) investment fund that 2

invested approximately 95% of its assets with BLMIS, a limited 3

liability company wholly owned by Bernard Madoff. In December 4

2008, Madoff, who is now in prison, revealed that he used customer 5

funds to perpetuate a massive Ponzi scheme. Consequently, BLMIS 6

collapsed and was placed into liquidation by the U.S. bankruptcy 7

court under SIPA. Irving Picard was appointed trustee of BLMIS 8

and charged with the task of overseeing the BLMIS liquidation and 9

recovering stolen assets in this fraud. 10

Sentry filed three customer claims in the SIPA liquidation 11

(collectively, the “SIPA Claim”), to which BLMIS objected. The 12

BLMIS trustee countered with its own claims. Although Sentry’s net 13

losses in BLMIS were approximately $960 million, negotiations 14

between Sentry and the BLMIS Trustee resulted in a settlement that 15

allowed Sentry’s SIPA Claim in the BLMIS liquidation in the amount 16

of $230 million, subject to a cash payment of $70 million to be paid 17

by Sentry to the BLMIS Trustee. 18

In July 2009, Sentry itself was placed into liquidation in the 19

BVI (the “BVI Liquidation”), and the High Court of Justice of the 205

Eastern Caribbean Supreme Court (the “BVI Court”) appointed 1

appellant Kenneth Krys liquidator. On June 14, 2010, Krys filed a 2

petition in the U.S. bankruptcy court seeking recognition of the BVI 3

Liquidation as a “foreign main proceeding” under Chapter 15, 11 4

U.S.C. § 1517. On July 22, 2010, the bankruptcy court entered an 5

order granting recognition. Upon recognition of the BVI Liquidation 6

as a foreign main proceeding, an automatic stay was imposed on all 7

proceedings against Sentry in the United States, including a 8

derivative action brought by Morning Mist, a Sentry shareholder. 9

The order of recognition was affirmed by the district court and 10

subsequently by this Court. See Morning Mist Holdings Ltd. v. Krys (In 11

re Fairfield Sentry Ltd.)

, 714 F.3d 127 (2d Cir. 2013). 12

Among Sentry’s assets in the BVI Liquidation is the SIPA 13

Claim. During the summer of 2010, an auction process to sell the 14

SIPA Claim commenced. Appellee Farnum Place, LLC (“Farnum”), 15

a limited liability corporation organized under the laws of Delaware, 16

offered to purchase the SIPA claim for 32.125% of the claim’s 17

allowed amount. Farnum’s bid was several percentage points higher 18

than the other bids, and Krys accepted it. The transaction, however, 196

was subject to approvals by the BVI Court and the U.S. bankruptcy 1

court. 2

In December 2010, Krys and Farnum negotiated, documented, 3

and signed a trade confirmation (the “Trade Confirmation”) setting 4

forth the material terms and conditions of the sale of the SIPA 5

Claim. The Trade Confirmation specifically stated that it is governed 6

by the laws of the State of New York. The Trade Confirmation 7

provided that the transaction was subject to approval by both the 8

U.S. bankruptcy court and the BVI Court. The Trade Confirmation 9

also provided that Sentry’s liquidator, subject to its fiduciary duty 10

and obligations, “shall endeavor to obtain promptly the approval of 11

the BVI Court of the terms and conditions of this Trade 12

Confirmation.” J.A. 42. 13

Three days after the Trade Confirmation was signed, Irving 14

Picard announced that he had entered into a settlement agreement 15

with the estate of Jeffrey Picower for the forfeiture and repayment of 16

approximately $7.2 billion, of which $5 billion would be paid to the 17

BLMIS Trustee and $2.2 billion would be paid to the federal 18

government. The influx of $5 billion to the BLMIS Trustee increased 19

the value of Sentry’s SIPA Claim from 32% to more than 50% of the 207

$230 million allowed amount of the claim (an increase of 1

approximately $40 million). 2

In October 2011, because Krys had failed to submit an 3

application asking the BVI Court to approve the terms of the Trade 4

Confirmation, Farnum filed an application with the BVI Court 5

seeking an order compelling Krys to satisfy the conditions of the 6

Trade Confirmation, or, in the alternative, granting permission to 7

commence proceedings against Sentry for specific performance. 8

Krys asked the BVI Court not to approve the transfer to Farnum at 9

the bid price because, given the sudden increase in the value of the 10

SIPA Claim, it was not in the best interests of the Sentry estate. Krys 11

also argued to the BVI Court that the Trade Confirmation required 12

U.S. bankruptcy court approval pursuant to 11 U.S.C. §§ 1520(a)(2) 13

and 363. 14

After a three

‐ day evidentiary hearing, the BVI Court on March 15

27, 2012, “approve[d] the terms and conditions of the Trade 16

Confirmation” and “the assignment to Farnum of Sentry’s claim in 17

the SIPA liquidation of BLMIS at the price stipulated for in the Trade 18

Confirmation.” J.A. 117. In its order, the BVI Court, fully cognizant 19

of the required approval proceeding in the U.S. bankruptcy court, 208

stated “it would be unwise for [it] to express views on the issues that 1

will arise for determination by the US Bankruptcy Court.” J.A. 116. 2

The BVI Court directed Krys “to take the necessary steps to bring 3

before the US Bankruptcy Court the question of approval (or non

‐ 4

approval) by that Court of the Trade Confirmation.” J.A. 117. And 5

the BVI Court made “clear that it must be done in such a way that 6

the US Bankruptcy Court is presented with a choice whether or not 7

to approve it.” Id. 8

On April 18, 2012, Krys filed an application with the United 9

States Bankruptcy Court for the Southern District of New York, 10

seeking review of the Trade Confirmation under 11 U.S.C. § 363(b) 11

and an order disapproving the trade. On January 10, 2013, the 12

bankruptcy court denied Krys’s application. The bankruptcy court 13

characterized the application for section 363 review as “seller’s 14

remorse” and a “last

‐ ditch effort” to undo the transaction. In re 15

Fairfield Sentry Ltd.

, 484 B.R. 615, 617, 618 (Bankr. S.D.N.Y. 2013). The 16

bankruptcy court held that “a Section 363 review is not warranted 17

under section 1520(a)(2) of the Code

. . .,” id. at 622, because the 18

“[s]ale does not involve the transfer of an interest in property within 19

the United States,” as statutorily mandated by Chapter 15, id. at 618. 209

The bankruptcy court also stated that “comity dictates that this 1

[c]ourt defer to the BVI Judgment.” Id. at 628. And that “[f]ailing to 2

grant such comity to the BVI Judgment under these circumstances 3

‘necessarily undermines the equitable and orderly distribution of a 4

debtor’s property by transforming a domestic court into a foreign 5

appellate court where creditors are always afforded the proverbial 6

“second bite at the apple.”’” Id. (quoting SNP Boat Serv. Sa v. Hotel Le 7

St. James

, 483 B.R. 776, 786 (Bankr. S.D. Fla. 2012)). 8

Krys appealed the denial of his application to the district 9

court. After a hearing, the district court affirmed the bankruptcy 10

court’s decision. The district court stated that “[i]t is not clear that 11

Section 363

. . . applies,” however, “even if Section 363 applies,” the 12

bankruptcy court’s “denial of the foreign representative’s challenge 13

was proper” because “[c]ourts should be loath to interfere with 14

corporate decisions absent a showing of bad faith, self

‐ interest, or 15

gross negligence.” Krys v. Farnum Place, LLC (In re Fairfield Sentry 16

Ltd

. )

, No. 13 Civ. 1524 (AKH) at *1, 2 (S.D.N.Y. Jul. 3, 2013) (internal 17

quotation marks omitted). This appeal followed. 1810

DISCUSSION 1

“An appeal from a district court’s review of a bankruptcy 2

court ruling is subject to plenary review.” Warex Terminals Inc. v. 3

Halstead Energy (In re Halstead Energy Corp.)

, 367 F.3d 110, 113 (2d 4

Cir. 2004). We review a bankruptcy court’s conclusions of law de 5

novo and its findings of fact under the clearly erroneous standard. Id. 6

at 114. 7

The primary question before this Court is whether the 8

bankruptcy court was required to conduct a review under section 9

363, which “requires that a judge

. . . expressly find from the 10

evidence presented before him at the hearing a good business 11

reason” to approve the sale. In re Lionel Corp.

, 722 F.2d 1063, 1071 (2d 12

Cir. 1983). The bankruptcy court recognized the BVI Liquidation as a 13

“foreign main proceeding,” which protects Sentry’s United States 14

assets from creditor action and allows Krys to obtain the rights and 15

benefits of Chapter 15. An asset sale in a Chapter 15 bankruptcy 16

proceeding requires section 363 review of the sale if it is a “transfer 17

of an interest of the debtor in property that is within the territorial 18

jurisdiction of the United States.” 11 U.S.C. § 1520(a)(2). The 19

question here thus turns on whether the SIPA Claim is such a 2011

transfer of an interest. We must also consider whether 1

considerations of comity, codified in Chapter 15, require deference 2

to the BVI Court’s judgment approving the transfer, irrespective of 3

whether section 1520(a)(2)’s territorial prerequisite has been 4

satisfied. 5

I. Application of Section 1502(a)(2) 6

In considering whether section 363 review is required in an 7

ancillary U.S. bankruptcy proceeding when there is a “foreign main 8

proceeding,” section 1520(a)(2) instructs the bankruptcy court to 9

apply section 363 to a “transfer of an interest of the debtor in 10

property that is within the territorial jurisdiction of the United States 11

to the same extent that the sections would apply to property of an 12

estate.” 11 U.S.C. § 1520(a)(2). 13

The parties dispute whether the sale of the SIPA Claim 14

involves a “transfer of an interest of the debtor in property that is 15

within the territorial jurisdiction of the United States.” Krys argues 16

that section 1520(a)(2)’s territorial prerequisite is satisfied because: 17

(1) the SIPA Claim is an interest in the BLMIS Fund, which is 18

property located in the United States; and (2) the SIPA Claim itself is 19

property located in the United States. Farnum maintains that (1) the 2012

relevant “property” is the SIPA Claim itself, not the BLMIS Fund; 1

and (2) that the SIPA Claim is in the BVI and thus not located within 2

the territorial jurisdiction of the United States. 3

We agree with Farnum that the “property” is the SIPA Claim 4

itself, not the BLMIS Fund. The SIPA Claim is not an ownership 5

interest in the BLMIS Fund. By selling its SIPA Claim, Sentry is not 6

transferring a claim or right to the BLMIS Fund; it is selling Sentry’s 7

“rights, title and interest in and to [Sentry’s] claims against BLMIS” 8

in the BLMIS proceedings. Trade Confirmation, J.A. 33. In other 9

words, the SIPA Claim is a “chose in action.” See Black’s Law 10

Dictionary 294 (10th ed. 2014) (defining “chose in action” as “[t]he 11

right to bring an action to recover a debt, money, or thing”). 12

But we disagree with Farnum and the bankruptcy court that 13

the SIPA Claim is not within the territorial jurisdiction of the United 14

States. “Within the territorial jurisdiction of the United States” is 15

defined in section 1502(8) as: 16

[T]angible property located within the territory of the 17

United States and intangible property deemed under 18

applicable nonbankruptcy law to be located within that 19

territory, including any property subject to attachment 20

or garnishment that may properly be seized or 21

garnished by an action in a Federal or State court in the 22

United States. 23

2413

11 U.S.C. § 1502(8). 1

The bankruptcy court held that “under applicable 2

nonbankruptcy law” (agreed by the parties to be the law of New 3

York), the situs of the intangible SIPA Claim is the BVI. The 4

bankruptcy court relied on the “common sense appraisal of the 5

requirements of justice and convenience” annunciated in Severnoe 6

Sec. Corp. v. London and Lancashire Insurance Co.

, 255 N.Y. 120, 123

‐ 24 7

(1931), to determine the location of the SIPA Claim. In re Fairfield 8

Sentry Ltd.

, 484 B.R. at 624. In applying the Severnoe test, the 9

bankruptcy court concluded that “justice, convenience and common 10

sense dictate

. . . that the SIPA Claim is located with the debtor in the 11

BVI.” Id. at 625. The bankruptcy court’s analysis, however, was 12

incomplete. Section 1502(8) deems “any property subject to 13

attachment or garnishment that may be properly seized or garnished 14

by an action in” a United States court to be “within the territory of 15

the United States.” 11 U.S.C. § 1502(8). 16

The SIPA Claim here is subject to attachment or garnishment 17

and may be properly seized by an action in a Federal or State court 18

in the United States. Under New York law, “any property which 19

could be assigned or transferred” is subject to attachment and 2014

garnishment. N.Y. C.P.L.R. §§ 5201(b), 6202. For attachment 1

purposes, with respect to intangible property that has as its subject a 2

legal obligation to perform, the situs is the location of the party of 3

whom that performance is required pursuant to that obligation. In 4

ABKCO Industries, Inc. v. Apple Films, Inc.

, 350 N.E.2d 899 (N.Y. 5

1976), “[the New York Court of Appeals] recognized that a 6

contractual agreement could constitute contingent property interests 7

attachable and assignable, and thus subject to CPLR 5201(b).” 8

Verizon New England, Inc. v. Transcom Enhanced Servs., Inc.

, 990 9

N.E.2d 121, 124 (N.Y. 2013). Here, although Sentry and the SIPA 10

Trustee do not have a contractual relationship, the SIPA Trustee is 11

statutorily obligated to distribute to Sentry its pro rata share of the 12

recovered assets. Therefore the situs of the SIPA Claim is the 13

location of the SIPA Trustee, which is New York. 14

Farnum argues that even if the SIPA Claim’s situs is New 15

York, the claim may not be “properly seized by an action” in a 16

United States court because such action would be stayed by the BVI 17

Court, see BVI Insolvency Act, 2003 § 175(1)(c), and the U.S. 18

bankruptcy court, see 11 U.S.C. §§ 362, 1520(a)(1). But this argument 19

would render the “subject to attachment or garnishment” phrase of 2015

section 1502(8) a nullity. “[W]e must construe [a] statute ‘so that no 1

part will be inoperative or superfluous, void or insignificant.’” 2

Gordon v. Softech Int’l., Inc.

, 726 F.3d 42, 48 (2d Cir. 2013) (quoting 3

Corley v. United States

, 556 U.S. 303, 314 (2009)). There is always an 4

automatic stay in bankruptcy proceedings so it would make no 5

sense if the existence of a stay could affect the construction of the 6

term “interest” under section 1502(8). Moreover, the statute speaks 7

of property “deemed under applicable nonbankruptcy law” to be 8

subject to attachment or garnishment. 11 U.S.C. § 1502(8) (emphasis 9

added). This provision thus cannot be read to mean that the 10

determination of whether section 363 review is necessary can be 11

affected by factors that are the quintessential features of bankruptcy 12

law: the existence of the automatic stay under sections 362 and 13

1520(a)(1) or, in a proceeding ancillary to a foreign proceeding under 14

section 1517, the automatic stay provisions of the foreign 15

jurisdiction. 16

Therefore we conclude that the sale of the SIPA Claim is a 17

“transfer of an interest of the debtor in property that is within the 18

territorial jurisdiction of the United States,” 11 U.S.C. § 1520(a)(2), 1916

and that pursuant to section 1520(a)(2) the bankruptcy court must 1

apply section 363. 2

II. Comity 3

As an additional reason for denying section 363 review, the 4

bankruptcy court held that the role of comity, codified in Chapter 5

15, dictates deference to the BVI Court’s judgment approving the 6

sale. 7

Congress specifically directed courts, “[i]n interpreting 8

[Chapter 15],

. . . [to] consider its international origin, and the need 9

to promote an application of this chapter that is consistent with the 10

application of similar statutes adopted by foreign jurisdictions.” 11 11

U.S.C. § 1508. But, “Chapter 15 does impose certain requirements 12

and considerations that act as a brake or limitation on comity.” In re 13

Vitro S.A.B. de C.V.

, 701 F.3d 1031, 1054 (5th Cir. 2012) (stating that 14

comity is “an important factor in determining whether relief will be 15

granted” under Chapter 15, but is not a per se rule). The express 16

statutory command that, in a Chapter 15 ancillary proceeding, the 17

requirements of section 363 “apply

. . . to the same extent ” as in 18

Chapter 7 or 11 proceedings, 11 U.S.C. § 1520(a)(2) (emphasis 19

added), is one such limitation. “[W]hen a statute’s language is plain, 2017

the sole function of the courts—at least where the disposition 1

required by the text is not absurd—is to enforce it according to its 2

terms.” Sebelius v. Cloer

, 133 S. Ct. 1886, 1896 (2013) (quoting Hartford 3

Underwriters Ins. Co. v. Union Planters Bank, N.A.

, 530 U.S. 1, 6 (2000)) 4

(alteration omitted). The language of section 1520(a)(2) is plain; the 5

bankruptcy court is required to conduct a section 363 review when 6

the debtor seeks a transfer of an interest in property within the 7

territorial jurisdiction of the United States. 1 8

Moreover, it is not apparent at all that the BVI Court even 9

expects or desires deference in this instance. The BVI Court 10

expressly declined to rule on whether the Trade Confirmation 11

required approval under section 363. 2 12

1 Notably, the automatic application of section 363 pursuant to section

1520(a)(2) expressly deviates from the discretionary grant of relief that

“may be granted” upon filing a petition for recognition of a foreign

proceeding pursuant to section 1519, and upon recognition of a foreign

proceeding pursuant to section 1521. This contrast further suggests that

the statutory requirement that section 363 apply automatically acts as a

“brake or limitation on comity” in the circumstances presented here. In re

Vitro S.A.B. de C.V.

, 701 F.3d at 1054.

2 On March 27, 2012 the BVI Court issued a judgment stating that: (1)

“it would be unwise

. . . to express views on the issues that will arise for

determination by the US Bankruptcy Court,” J.A. 116; (2) “[i]f [the U.S.

bankruptcy court] decides, for whatever reason, to withhold approval of

the Trade Confirmation, that will bring the Trade Confirmation to an end”

id. ; (3) the BVI Court “direct[s] [Krys] to take the necessary steps to bring18

Therefore we conclude that the bankruptcy court erred when 1

it gave deference to the BVI Court’s approval of the transfer of the 2

SIPA Claim and failed to conduct a review under section 363. 3

III. Section 363 Review 4

As stated above, the sale of the SIPA Claim is a “transfer of an 5

interest of the debtor in property within the territorial jurisdiction of 6

the United States” within the meaning of 11 U.S.C. § 1520(a)(2). The 7

language of the statute makes it plain that the bankruptcy court was 8

required to conduct a section 363 review. Deference to the BVI Court 9

was not required. We therefore vacate and remand to the district 10

court with instructions to remand to the bankruptcy court to 11

conduct the section 363 review. 12

While we intimate no view on the merits of the section 363 13

review on remand, we provide some guiding principles from our 14

case law. We have held that “a judge determining a § 363(b) 15

application [is required to] expressly find from the evidence 16

presented before him at the hearing a good business reason to grant 17

before the US Bankruptcy Court the question of approval (or non

‐ approval)

by that Court of the Trade Confirmation,” id. at 117; and (4) the necessary

steps “must be done in such a way that the US Bankruptcy Court is

presented with a choice whether or not to approve it ,” id. (emphasis added).19

such an application.” In re Lionel Corp.

, 722 F.2d at 1071. “In 1

fashioning its findings, a bankruptcy judge

. . . should consider all 2

salient factors pertaining to the proceeding

. . . .” Id. Such salient 3

factors include “whether the asset is increasing or decreasing in 4

value.” Id. We have also recognized that bankruptcy courts must 5

have “broad discretion and flexibility

. . . to enhance the value of the 6

estates before it.” Consumer News & Bus. Channel P’ship v. Fin. News 7

Network Inc. (In re Fin. News Network Inc.)

, 980 F.2d 165, 169 (2d Cir. 8

1992). And we have recognized also that the bankruptcy court’s 9

“principal responsibility

. . . is to secure for the benefit of creditors 10

the best possible bid.” Id

. 11

Applying this framework here, we note that the bankruptcy 12

court must consider as part of its section 363 review the increase in 13

value of the SIPA Claim between the signing of the Trade 14

Confirmation and approval by the bankruptcy court. Cf. In re Martin

, 15

91 F.3d 389 (3d Cir. 1996) (upholding a bankruptcy court’s order 16

denying approval of a stipulation agreement after debtors were 17

victorious in a state court litigation filed in violation of the 18

stipulation agreement); In re Broadmoor Place Invs.

, 994 F.2d 744, 746 19

(10th Cir. 1993) (finding that a bankruptcy court has “power to 2020

disapprove a proposed sale

. . . if it has an awareness there is 1

another proposal in hand which, from the estate’s point of view, is 2

better or more acceptable”). Nothing in the language of section 363 3

or our case law limits the bankruptcy court’s review to the date of 4

signing the Trade Confirmation. 5

CONCLUSION 6

Accordingly, we VACATE the district court’s July 3, 2013 7

order affirming the bankruptcy court’s order denying Krys’s 8

application for section 363 review and REMAND to the district court 9

with instructions to REMAND to the bankruptcy court for such 10

review. 11

12