On balance, I don't think I can find it to be in the best interests of the estate for the estate to release away these claims now based on the amalgam of the consideration or perhaps more properly, lack of consideration provided to date and the investigation that took place before giving up these claims. at 269, in a case that to be sure, had a materially higher level of creditor aggressiveness and discord and which involved claims that might have been asserted vis-a-vis a different stage in the Chapter 11 process, I'll be able to tell the difference between legitimate claims on the one hand and harassment, retaliation or frivolous litigation on the other. I listened very carefully, especially to the modifications to the plan. To the extent that the liquidating trustee determines as a jurisdictional matter, that he wants to sue somebody and can only get jurisdiction in state court, can you consider supplementing your direction to modify the plan, such that a scenario such as that would come to you first for the determination of the propriety of the claim? I will not be the trier of fact, at least in any way that is dispositive.
But once more, I can and will find it to be in the best interests of the estate to modify the plan, which in light of the way the plan was structured, I don't believe requi[r]es re-solicitation to provide that any such claims if they are to be brought, be brought before me or a district judge in this [district] for at least several reasons that I articulated before. And though the Targets then try to expand my knowledge of Bearing Point affairs into some kind of knowledge by the district judges in this district as well, do not assert (nor do I think that they could) that any of the 38 or so district judges in this district has any knowledge of the "surrounding facts," even assuming that such knowledge could be appropriately utilized.
I think there are other factors that I should take into account as well and that it's appropriate for me to impose safeguards to insure that any permitted litigation really is in the best interest of the estate. in no small part because of my view that it's a classic case of "related to" . I disagree, and find as a fact, or mixed question of fact and law, to the contrary.
Or, putting it differently, that potential releases aren't subject to the vagaries of state court jury trials in remote jurisdictions. First, of course, if it will have to be an Article III district judge making the findings, or a jury, my knowledge of facts with respect to this controversy, even if properly obtained and used, would be of little or no value.
The Trustee wishes to be relieved from requirements in each that provide, in substance, that any claims against Bearing Point's former officers and directors must be brought in this Court and nowhere else.
John De Groote is a member of our TX chapter, The Texas Academy of Distinguished Neutrals, the state's premier roster of attorney mediators and arbitrators.
But here concerns emerging from my fear that, if litigated here, this action would be bogged down in procedural complications, aggravated by the Supreme Court's recent decision in Stern v.
The targets of the litigation that the Trustee wishes to bring—Bearing Point's former CEO and eight directors (the "")—who were the beneficiaries of the provisions in question, oppose the motion. I normally would be quite reluctant to modify a confirmation order—even where, as here, there are no issues of unscrambling eggs and no detrimental reliance by the objecting parties on the provisions in question.
For reasons set forth at length below, I required that the bankruptcy court and the district court in the Southern District of New York have exclusive jurisdiction over actions such as the one that the Trustee would like to bring. I'll give you and the trustee a reservation of rights on that issue and anybody who might feel differently as well. Thereafter, the Trustee determined to commence litigation against the Targets on claims that had been carved out from the releases.
Thus, Article XI of the Plan provides for this Court to exercise exclusive jurisdiction of future disputes "arising out of, or related to, the Chapter 11 Cases." And Confirmation Order ¶ 34(c), captioned "Limited Releases," provides for exclusive jurisdiction for the federal courts in the Southern District of New York over the claims that weren't released. The Trustee provided me with a draft complaint, and subjected it to my threshold review.