Voss v. Knotts et al.

In a concise, unpublished decision, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s grant of summary judgment in favor of the defendants in a copyright suit on the grounds that the plaintiff lacked standing.  Voss v. Knotts et al., Case No. 12-56168 (9th Cir., Apr. 8, 2014) (per curiam).

Welcome to the first issue of International News for 2014. In this issue we focus on employee benefits.

First, however, in our Features section, we consider a number of ways of mitigating risk in African investments. As Africa becomes increasingly developed, investment opportunities are becoming increasingly appealing, but investors must still act wisely.

Today, the Supreme Court of Canada denied a group of investors leave to appeal the approval of a settlement releasing Ernst & Young LLP from any claims arising from its auditing of Sino-Forest Corporation. The settlement is part of Sino-Forest’s Plan of Compromise and Reorganization following a bankruptcy triggered by allegations of corporate fraud.

The Settlement

On October 28, 2013, the Ontario Ministry of the Environment (MOE) announced that it had reached a settlement with the former directors and officers of Northstar Aerospace whereby those former directors and officers agreed to pay $4.75 million for costs associated with the remediation of contaminated lands owned by the now-bankrupt company. The Environmental Review Tribunal approved the Minutes of Settlement at the hearing held on October 28.

Upon the filing of an appeal of a bankruptcy order, that order is stayed pursuant to section 195 of the Bankruptcy and Insolvency Act (“BIA”). In Msi Spergel v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550, the Ontario Court of Appeal had to decide whether that stay suspends the limitation period applicable to a motion by a trustee to set aside a preferential payment by a bankrupt under s. 95 of the BIA.

In a decision rendered on August 15, 2013, the Ontario Court of Appeal in Re Nortel denied a motion for leave to appeal in a CCAA proceeding, reiterating the stringent test for leave to appeal in such circumstances. More importantly for our purposes, the court reiterated the necessity for a motion for leave to adduce fresh evidence where the moving party seeks to rely upon such evidence.

Summertime is arguably the best time of the year. Warm weather. Long-awaited family vacations. Extended daylight. And unique to this summer, as of July 1, 2013, in most states, we have substantial amendments (the 2010 Amendments) to the Uniform Commercial Code (UCC) to digest (maybe even under an umbrella on the beach). The 2010 Amendments are intended to clarify existing law, especially with respect to how certain types of debtors are named in financing statements. As of July 3, 2013, 44 states and the District of Columbia had enacted the 2010 Amendments.

The test for granting leave to appeal in Companies Creditors’ Arrangement Act proceedings is well-settled:

In Kasten Energy Inc. v. Shamrock Oil & Gas Ltd., 2013 ABQB 63, the Alberta Court of Queen’s Bench considered the application of Kasten Energy Inc. (“Kasten”) to appoint a receiver over all of the assets and undertakings of Shamrock Oil & Gas Ltd. (“Shamrock”). The decision in this case presents a useful and concise summary of the applicable test for the appointment of a receiver.  

Under French law, the divestiture of an unprofitable business can create specific legal risks resulting from the status of the sold business. International companies should anticipate a number of issues when selling a French loss-making subsidiary, including, but not limited to, issues surrounding the sale price, the risk of post-closing liabilities under bankruptcy proceedings and the risk of post-closing liabilities relating to employee claims.

Sale Price