April 8, 2022
At a hearing today in the MatlinPatterson Global Opportunities Fund debtors’ chapter 11 cases, Judge David Jones took under advisement the chapter 7 conversion motions filed by the foreign representative in the chapter 15 case of Varig Logistica SA, or VarigLog, and litigation plaintiff Gol Linhas Aéreas SA, referred to by its predecessor name, VRG. Judge Jones informed the parties that he would issue a decision on the conversion motions in the near term.
HJDK Aerospacial S/A, which has asserted a $17.5 million claim against the debtors for failure of a portfolio company to repay certain loans in Brazilian civil courts, had also filed a statement in support of the conversion motion. Debtors’ counsel disputed the amount of HJDK’s claim at today’s hearing, saying that HJDK has only a $4.5 million claim.
Judge Jones opened the hearing by informing the parties that his primary focus in considering the motions was whether the debtors had a “reasonable likelihood of rehabilitation” under the relevant provision of the Bankruptcy Code. Given the nature of the debtors’ business as investment vehicles for private equity investors, Judge Jones questioned whether using chapter 11 to wind down the investment vehicles by “clearing” the foreign litigation claims order to make payouts to investors and otherwise implement their business model was a “species of rehabilitation.”
Judge Jones also said he would take into consideration whether staying in chapter 11 would result in a “substantial or continuing loss to or diminution” of the debtors’ estates. Judge Jones commented that it was “hard to see” how the administrative burn rate in the cases did not constitute some form of diminution, given the absence of revenues coming into the estates.
Gregory Grossman of Sequor Law, counsel for the VarigLog foreign representative, said that the chapter 11 cases amounted to a “preplanned dissolution” of the debtors, and although that might be part of the debtors’ business model, this could not constitute a “rehabilitation” under the Bankruptcy Code. Grossman argued that treating such a preplanned dissolution as a rehabilitation under the Code would lead to “mischief” because companies could, prior to filing for chapter 11, modify their corporate governance documents to require dissolution by a date certain in order to pre-emptively defeat chapter 7 conversion motions.
Tyler Robinson of Simpson Thacher, counsel for the debtors, argued that the rehabilitative purpose of filing the chapter 11 cases is to carry out the “intended purpose” of the debtors’ businesses, which “first and foremost” is to return capital to their investors. Robinson explained that the foreign litigation claimants had frustrated those efforts, ultimately causing the debtors to file the chapter 11 cases. Robinson said that in order to maximize the value of the estates, the debtors needed a “centralized process” for determining which parties held valid claims in order to ratably distribute estate assets.
Robinson warned that it would be a “dangerous proposition” for the court to find that private equity funds and hedge funds should not be able to use chapter 11 to wind down their affairs. Robinson also argued that U.S. Supreme Court precedent supports the proposition that liquidation is an appropriate use of the chapter 11 process and that other courts have found a confirmable liquidating plan to be sufficiently rehabilitative to defeat a motion to convert.
Arthur Steinberg of King & Spalding, counsel for VRG, argued that the debtors’ prepetition conduct justified conversion. Steinberg alleged that the debtors had covertly collateralized all their assets in favor of a nondebtor insider and transferred assets out of the estates prior to filing. Steinberg added that the debtors had no assets to liquidate, no revenue, no employees and “no public interest to protect.” According to Steinberg, the estates needed an estate fiduciary who is not “fronting for equity in the case” and that installing a chapter 7 trustee would cure the issue of “faithless fiduciaries” and satisfy the need for an independent investigator.
Ralph E. Preite of Koutsoudakis & Iakovou, counsel to HJDK, told the court that after a decision by a Brazilian appellate court entered on Nov. 19, 2021, the appeals process had been exhausted and that the claim was therefore “final.”
Elizabeth Curran of Schulte Roth & Zabel, conflicts counsel for the debtors, disagreed with Preite’s view that the litigation was over. According to Curran, the November 2021 decision related to a jurisdictional argument, and an appeal of the “full merits” of the matter is still pending. Curran added that there were still at least two additional levels of appeals available to the debtors in the Brazilian courts.
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