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OUI Financing LLC v. Dellar

United States District Court, Second Circuit

October 9, 2013



RONNIE ABRAMS, District Judge.

Plaintiff Oui Financing LLC ("Oui Financing") brings this declaratory judgment, breach of contract and fraud action against Defendants Steven Dellar and Oui Management SAS ("Oui Management"). Defendants move the Court pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6) on the grounds that the doctrines of international comity and forum non conveniens require dismissal and alternatively that Plaintiffs fraud claim should be dismissed as duplicative of its breach of contract claim. Plaintiff cross-moves for partial summary judgment on its declaratory judgment and breach of contract claims against Dellar. The Court agrees with Defendants that comity is warranted. Accordingly, Defendants motion to dismiss is granted, and Plaintiffs partial summary judgment motion is denied.

1. Factual Backgrounds[1]

On August 27, 2010, pursuant to a loan agreement and promissory note, Plaintiff made loans to Oui Management, a French societe par actions simplifiee [2] with its principal place of business in Paris. (Am. Compl. ¶¶ 1, 6, Exs. B, C.) Dellar, the president and a shareholder of Oui Management, contemporaneously executed a guaranty pursuant to which he unconditionally guaranteed repayment of the loans and other related sums. (Id. ¶¶ 1, 7, Ex. A.) The principal, interest and other amounts due under the loans were required to be paid in full no later than September 30, 2012, but Oui Management and Dellar did not make payment. (Id. ¶ 12.) Rather, on September 24, 2012, Oui Management voluntarily commenced a procedure de sauvegarde ("safeguard procedure") in the Paris Commercial Court. (Id. ¶ 16, Ex. B.)[3]

Oui Management's commencement of the safeguard procedure constituted an automatic event of default under the loan agreement. (Id. ¶ 16.) Plaintiff sent Oui Management a letter on October 2, 2012 demanding it be paid the money owed under the loan agreement. (Id. ¶ 17.) Oui Management responded on October 8, 2012, advising Plaintiff that, due to the safeguard procedure, it was prohibited under French law from paying any debt that accrued before September 24, 2012. (Id. ¶ 18, Ex. G.)

On October 17, 2012, Plaintiff filed a complaint asserting declaratory judgment and breach of contract claims against Dellar alone. (Dkt. 1.) On November 27, 2012, Dellar moved to dismiss. (Id. 5.) After that motion was fully briefed, but before the Court issued a ruling, Plaintiff received leave from the Court to file the Amended Complaint, which Plaintiff filed on March 8, 2013. (Id. 19.) The Amended Complaint named Oui Management as an additional Defendant and asserted new claims for breach and fraud. (Id. 18.) Before the Court are Defendants' motion to dismiss the Amended Complaint and Plaintiff's cross-motion for pa al summary judgment.

Shortly before briefing was completed, on May 13, 2013, the Paris Commercial Court issued a judgment approving Oui Management's "safeguard-i.e., restructuring-plan, which provides for the repayment of Oui Management's debts over a seven-year period.[4]

2. French Safeguard Procedure[5]

"[A] comprehensive reform of French bankruptcy law, known as the Business Safeguard Act was enacted on July 26, 2005 and became effective on January 1, 2006." Stephen J. Lubben, Business Liquidation, 81 Am. Bankr. L.J. 65, 84 n.64 (2007): see also Eric Cafritz and James Gillespie, French Bankruptcy Law Reform Assessed. Int'l Fin. L. Rev., Dec. 2005, at 41 (hereinafter, "Cafritz"). A centerpiece of the Business Safeguard Act is the safeguard procedure, which, under the provisions of the French Commercial Code, is:

instituted and opened on the application of a debtor... who, without being insolvent, shows proof of difficulties that he is not in a position to surmount. This procedure is aimed at facilitating the reorganization of the [business] in order to permit it to continue its economic activity, maintain jobs and discharge its debts.

French Comm. Code ("FCC"), Art. L 620-1; see also Anja Droege Gagnier, French Safeguard Proceedings: Paris Court of Appeal Controls the Risk of Abuse, 4 Insolvency & Restructuring Int'l 2, 17 (2010) (hereinafter, "Gagnier"). The safeguard procedure is therefore a "pre-insolvency" proceeding. Danis Aff. Ex. A ¶ 44.

A safeguard procedure is commenced when a French Commercial Court issues a judgment that serves to open a "period of observation" of the debtor's business. FCC Art. L. 621-3; Balensi Aff. ¶, 2. During the period of observation, the "debtor remains largely in control of its operations." Balensi Aff. ¶ 4. The Commercial Court, however, also appoints certain individuals who play a role in the safeguard procedure. These individuals include:

• "supervising judge" who "is charged with ensuring the rapid conduct of the procedure and with protecting the interests present." FCC Art. L. 621-4, 621-9:
• "agent"[6] who is "empowered to act in the name and collective interest of the creditors." Id . 621-4, 622-20; Danis Aff. Ex. A ¶ 7. The FCC provides that "any creditor may request the replacement of the court-appointed [agent]." FCC Art. L. 621-7; and
• "receiver" charged "to supervise the debtor in his business management or to assist him for all management acts or for certain of them." Id . 621-4; 622-1.

The agent and receiver "keep the supervising judge... informed of the progress of the [safeguard] procedure." Id . 621-8.

The Commercial Court's judgment opening the period of observation also serves to prohibit the debtor from "paving any claims arising prior to the judgment." Id . 622-7. It also stays legal proceedings brought by creditors against the debtor or against the debtor's guarantors. Id . 622-21-1, 622-28; Balensi Aff. ¶ 16 ("[T]he commencement of safeguard proceedings triggers a general automatic stay of legal actions against the debtor and its property for pre-petition liabilities or agreements."); see also Cafritz, at 41-42 ("The commencement of a safeguard procedure, like a U.S. bankruptcy case, results in an automatic stay against creditors in favor of the debtor and guarantors or joint obligors of the debtor."); Adam Gallagher, France's New Fast-Track Safeguard Law, Am. Bankr. Inst. J., Mar. 2011, at 30 ("Safeguard... is a public procedure that confers immediate protection from... creditor actions... The debtor's payment obligations are frozen during the safeguard."). The effect of such a stay is to "give[] the debtor the necessary breathing space to complete its reorganisation." Gagnier, at 17; see also Cafritz, at 41 ("[A] mandatory stay of creditors' claims... will give breathing room to companies on the brink of insolvency.").

The supervising judge may also appoint one or more "controller creditors"[7] from among the creditors who request such an appointment. FCC Art. L. 621-10. Controller creditors "assist the court-appointed [agent] in his duties and the supervising judge in his task of supervising the administration of the [debtor's business]" during the safeguard procedure. 14. 621-11. They are entitled to examine all the documents provided to the receiver and the agent, subject to the requirement that they observe confidentiality. Id . 621-11; Danis Aff. Ex. A ¶ 9. The agent is charged with notifying the supervising judge of any "comments" provided to him by controller creditors during the procedure. FCC Art. L. 622-20.

After the procedure is opened, the debtor must provide the receiver and agent with, inter alia, a list of its creditors. Id . 622-6. The creditors, for their part, submit "declaration[s] of their claims" to the agent, indicating "the amount of the claim due" and the "nature of the priority or guarantee from which the claim may benefit, " as well as other information. Id . 622-24, 622-25. French creditors "are not treated any differently, and do not have any additional or superceding rights over [non-French] creditors in [safeguard] proceedings." Balensi Aff. ¶ 35.

The receiver and the debtor (with expert assistance, if necessary) prepare an "assessment" of the business documenting the "the origin, seriousness and nature" of the debtor's "difficulties." FCC Art. L. 623-1. In light of this assessment, the debtor and receiver propose a safeguard plan which, inter alia, "determines the perspectives for restructuring" and "sets out the procedure for settling liabilities and the possible guarantees that the debtor must give to make sure this is done." Id . 626-2, 623-1. The receiver shares the plan with, inter alia, the agent and any controller creditor(s). Id . 626-5. The agent, in turn, "draws up a list of the replies [to the plan] given by the creditors, " which is forwarded to the debtor, the receiver and any controller creditor(s). Id . 626-7.

Following a hearing on the safeguard plan, in which controller (hut not other) creditors may participate, the Commercial Court makes a ruling as to whether to adopt or reject the plan. Id . 626-9; Danis Aff. Ex. A ¶ 12. If the plan is approved, the debtor may then continue its business, subject to its compliance with the repayment plan. Danis Aff. Ex. A ¶ 4. "The judgment adopting the plan renders its provisions binding on everyone, " and "persons ...

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