Appellant/Petitioner's Brief (In Re: Ocean Rig UDW Inc., Second Circuit Court of Appeals Case No. 18-1374)

Case 18-1374, Document 43-1, 08/13/2018, 2366772, Page1 of 38
-
IN THE
mntttb &tatt- QCourt of ~ptal-

FOR THE SECOND CIRCUIT
»-«
In Re: Ocean Rig UDW Inc.
Debtor.
Tally Mindy Wiener,
Appellant,
v.
Ocean Rig UDW Inc., Iraklis Sbarounis, Drill Rigs Holdings Inc.,
Drillships Financing Holding Inc., Drillships Ocean Ventures Inc.,
Debtors ~ Appellees,
Simon Appell, Foreign Representative, Eleanor Fisher, Foreign

Representative
Debtors.
»-«
On Appeal from the United States District Court
for the Southern District ofNew York
BRIEF FOR THE APPELLANT
TALLY M. WIENER, ESQ.

c/o Law Offices of Tally M. Wiener, Esq.
119 west 72"d Street, PMB 350
New York, NY 10023
(212) 574-7975
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 3
PRELIMINARY STATEMENT 6
STATEMENT OF JURISDICTION 12
ISSUES PRESENTED FOR REVIEW 13
STATEMENT OF THE CASE 13
SUMMARY OF THE ARGUMENT 15
ARGUMENT
The District Court should not have granted the

motion to dismiss for purported lack of appellate standing.
The Appellant has appellate standing
to proceed with the appeal. 16
The District Court should not have granted the

motion to dismiss for alleged equitable mootness.
The appeal is not equitably moot and
should proceed on the merits. 25
CONCLUSION 37
TABLE OF AUTHORITIES
Page(s)
Cases
Allstate Ins. Co. v. Hughes, 174 B.R. 884

(S.D.N.Y. 1994) 26-27
Antony Gibbs & Sons v. La Société Industrielle et

Commerciale des Métaux (1890) LR 25 QBD 399 9
Freeman v. Journal Register Co.,

452 B.R. 367 (S.D.N.Y. 2010) 18-19
FritoLay, Inc. v. LTV Steel Co.

(In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.1993) 30-31, 36
Hertz Corp. v. Friend, 559 U.S. 77 (2000) 7
In re Barnet, 737 F.3d 238 (2d Cir. 2013) passim
In re Bear Stearns High-Grade Structured Credit

Strategies Master Fund, 374 B.R. 122
(Bankr S.D.N.Y. 2007),
aff’d 389 B.R. 325 (S.D.N.Y. 2018) passim
In re BGI, Inc., 772 F.3d 102 (2d Cir. 2014) 30
In re British American Ins. Co. Ltd., 488 B.R. 205

(Bankr. S.D. Fla. 2013) 28-30
In re Charter Commc’ns, Inc., 691 F.3d 476 (2d Cir. 2012) passim
In re Chateaugay Corp., 988 F.2d 322 (2d Cir. 1993) passim
In re Creative Finance Ltd., 543 B.R. 498

(Bankr. S.D.N.Y. 2016) 35-36
In re DBSD N. Am. Inc., 634 F.3d 79

(2d Cir. 2011) 16-17
2
Page(s)
In re Fairfield Sentry Limited, et al.,
Case 1:10-cv-07311-GBD
(S.D.N.Y. Sept. 16, 2011) 24-25
In re Fairfield Sentry Ltd.,714 F.3d 127 (2d Cir. 2013) passim
In re Gucci, 126 F.3d 380 (2d Cir.1997) 17
Lavie v. Ran, 406 B.R. 277 (S.D. Tex. 2009),

aff'd, 607 F.3d 1017 (5th Cir. 2010) 28
In re Metromedia Fiber Network, Inc.,

416 F.3d 136 (2d Cir. 2005) 30
In re MPM Silicones LLC, 2017 WL 4772248

(2d Cir. October 20, 2017) 32-33
In re Point Center Financial, Inc., 890 F.3d 1188

(9th Cir. 2018) 16, 18
In re Quigley Co., Inc., 391 B.R. 695

(Bankr. S.D.N.Y. 2008) 18
In re SPhinX, Ltd., 351 B.R. 103

(Bankr. S.D.N.Y. 2006) 8
In re Zenith Electronics Corp., 329 F.3d 338

(3d Cir. 2003) 36-37
Int'l Trade Admin. v. Rensselaer Polytechnic Inst.,

936 F.2d 744 (2d Cir.1991) 17
Kane v. Johns-Manville Corp., 843 F.2d 636

(2d Cir. 1988) 17-18
Koon v. United States, 518 U.S. 81 (1996) 25
Lujan v. Defenders of the Wildlife,

504 U.S. 555 (1992) 16-17
3
Page(s)
Statutes
11 U.S.C. § 101(15) 7
11 U.S.C. § 101(41) 7
11 U.S.C. § 304 passim
11 U.S.C. § 1101 29
11 U.S.C. § 1515 10
11 U.S.C. § 1519 35
11 U.S.C. § 1520 6, 16, 30
11 U.S.C. § 1521 6, 16, 30
28 U.S.C. § 158 12-13, 15
Federal Rule of Bankruptcy Procedure 1007(a)(4) 10
Federal Rule of Bankruptcy Procedure 1008 10
Federal Rule of Evidence 201 14
4
PRELIMINARY STATEMENT
Ocean Rig UDW Inc. and subsidiary companies Drill Rigs Holdings
Inc., Drillships Financing Holding Inc., and Drillships Ocean Ventures Inc.
are foreign companies that became the subjects of chapter 15 bankruptcy
proceedings in New York after joint provisional liquidators Simon Appell
and Eleanor Fisher petitioned the U.S. Bankruptcy Court for the Southern
District of New York. The Appellant, Tally Mindy Wiener, is a U.S.
shareholder of the Ocean Rig parent company Ocean Rig UDW Inc. that
trades on the Nasdaq stock exchange in New York under ticker symbol
ORIG. At issue in this appeal is appellate review of injunctive relief ordered
by the Bankruptcy Court to which the Appellant is subject after contesting
the Ocean Rig debtors’ eligibility for chapter 15 recognition at trial.
Chapter 15 recognition is not automatic and is the statutory condition
precedent for injunctive relief under 11 U.S.C. § 1520 and 11 U.S.C. § 1521.
Non-recognition does not leave debtors without a path for proceeding in the
U.S. if U.S. relief is needed. As the Bankruptcy Court observed in Bear
Stearns, representatives of Cayman Islands proceedings that are denied
chapter 15 recognition as was the case in Bear Stearns are left with the
possibility of commencing bankruptcy cases under chapters 7 or 11 of the
Bankruptcy Code, and some relief is available under section 1509 of the
5
Bankruptcy Code. In re Bear Stearns High-Grade Structured Credit
Strategies Master Fund, 374 B.R. 122, 132-33 (Bankr S.D.N.Y. 2007), aff’d
389 B.R. 325 (S.D.N.Y. 2018).
To achieve assistance available upon recognition as a foreign main
proceeding, in this case injunctive relief,1 representatives of debtors’
proceedings must show the proceedings they seek to have recognized were
pending in the country in which the debtors’ center of main interests
(COMI) was at the time of the chapter 15 petition date, “subject to an
inquiry into whether the process has been manipulated.” In re Fairfield
Sentry Ltd., 714 F.3d 127, 130 (2d Cir. 2013). The Appellant contended at
trial the debtors had not and could not prove a Cayman Islands COMI based
on limited Cayman Islands connections they presented. The alleged
connections were similar to the ones given as examples of what does not
suffice for a “nerve center” finding by the Supreme Court in Hertz Corp. v.
Friend, 559 U.S. 77, 1195 (2010), including listing an address on forms, and
having “a mail drop box, a bare office with a computer” which is an office
that the Ocean Rig debtors did not even have because they were borrowing
1
The Bankruptcy Court injunctions apply to “all entities (as that term is
defined in section 101(15) of the Bankruptcy Code.” [Docket Numbers 130
and 153 on the Bankruptcy Court’s Docket]. The Bankruptcy Code defines
an “entity” as including a “person” and a person as including an individual.
11 U.S.C. 101(15) & 101(41).
6
another company’s space.2 Also raised at trial was non-satisfaction of the
“widely adopted list of COMI factors” developed in the Southern District of
New York:
the location of the debtor’s headquarters; the location of those

who actually manage the debtor (which, conceivably could be
the headquarters of a holding company); the location of the
debtor’s primary assets; the location of the majority of the
debtor’s creditors or the majority of the creditors who would be
affected by the case; and/or the jurisdiction whose law would
apply to most disputes.
Fairfield at 137 (citing In re SPhinX, Ltd., 351 B.R. 103, 117 (Bankr.
S.D.N.Y. 2006)). While no single standard is dispositive, Fairfield at 137,
COMI standards look to nature and quality of connections to a country, and
the Appellant contended that the evidence showed absence of connections to
the Cayman Islands supporting a Cayman Islands COMI conclusion. After
taking the matter under advisement, the Bankruptcy Court recognized as
foreign main proceedings the Ocean Rig chapter 15 debtors’ four Cayman
Islands provisional liquidation proceedings pending as of the March 27,
2017 chapter 15 bankruptcy filings and the debtors’ four Cayman Islands
scheme of arrangement proceedings, which were not then pending.
2
This is still so today. Per Ocean Rig’s website, the chapter 15 debtors’
“offices” are “Physical address[es] and address[es] for packages c/o Ocean
Rig Cayman Management Services SEZC Limited.” www.ocean-
rig.com/contact
7
Eight Ocean Rig proceedings were filed in the Cayman Islands in
total. The eight foreign proceedings included four provisional liquidation
proceedings and four schemes of arrangement proceedings (two proceedings
for each of the four Ocean Rig debtors). Schemes of arrangement in the
Cayman Islands follow in some respects an English tradition. The debtors
filed four inter-related schemes, reflecting attempts to discharge under
foreign law New York law governed debts. This is contrary to a prohibition
in common law jurisdictions of discharge of debt incurred in one country
under the laws of another.3 Because debt discharge under schemes has been
challenged on multiple occasions, often testimony is presented concerning
whether they are likely to be enforced outside of the country in which a
judge signs off on them. They are different from chapter 11 restructurings in
multiple respects, including because they do not meet the same requirements
for priority and classification. Ocean Rig’s provided a 0.02% stake for
existing shareholders in the publicly traded parent company, with
management previously holding a 9% stake prior to the filing of the schemes
of arrangement able to achieve a 9% stake thereafter, though creditors were
not paid in full.
3
Under English law, for example, a debt governed by English law cannot be
discharged or compromised by foreign proceedings pursuant to Gibbs Rule.
Antony Gibbs & Sons v. La Société Industrielle et Commerciale des Métaux
(1890) LR 25 QBD 399.
8
On the chapter 15 bankruptcy petition date, only the four provisional
liquidation proceedings were pending. While chapter 15 petitions for the
later scheme of arrangement proceedings could have been filed including the
materials and information required by the Bankruptcy Code and the Federal
Rules of Bankruptcy Procedure, they were not filed. See 11 U.S.C. § 1515
((a)“A foreign representative applies to the court for recognition of a foreign
proceeding in which the foreign representative has been appointed by filing
a petition for recognition. (b) A petition for recognition shall be
accompanied by….) (emphasis supplied); Federal Rule of Bankruptcy
Procedure 1007(a)(4) (requiring documents beyond those required in 11
U.S.C. § 1515 shall be filed) (emphasis supplied); Federal Rule of
Bankruptcy Procedure 1008 (requiring bankruptcy petitions include
verifications). The statutory requirements set by Congress for chapter 15
petitions were not satisfied with respect to the schemes of arrangement.
In the Fairfield chapter 15 recognition appeal, like the present appeal
brought by shareholders, this Court explained that assessment of whether a
foreign proceeding should be recognized as a foreign main proceeding
pending in the country where the debtor has the center of its main interests
should be undertaken as of the chapter 15 bankruptcy petition date seeking
recognition of the foreign proceeding. In re Fairfield, 714 F.3d at 130 (“We
9
conclude (as did the bankruptcy court and the district court) that the relevant
time period is the time of the Chapter 15 petition, subject to an inquiry into
whether the process has been manipulated.”). Fairfield’s requirements
recognition of foreign proceedings be assessed as of the chapter 15 petition
date were not, and could not have been, satisfied with respect to the scheme
of arrangement proceedings because they were not pending foreign
proceedings as of the March 27, 2017 chapter 15 petition date of the
provisional liquidation proceedings.4 Recognition of the scheme of
4
Pursuant to the pretrial conference before the Bankruptcy Court, the scope
of the trial was limited to the provisional liquidation proceedings as the
pretrial transcript shows at pages 6-7) (“THE COURT: Look, the schemes
have not been sanctioned [i.e. approved] by the Cayman court. This hearing
this week does not address assuming that the scheme is sanctioned, whether
this Court should recognize and enforce it. It’s premature. . . . Right.
There’s a hearing in September in the Cayman with respect to whether or not
-- what is it? Four separate schemes, right? Whether or not the Cayman
court will sanction the schemes, the four separate schemes. And nothing
that I read from the Petitioners has asked me to take any action, and I
wouldn’t take any action with respect to -- I don’t give advisory opinions
whether or not the Court will recognize and enforce orders whether it’s
sanctioning a scheme or other orders. So that’s not before me.”)
https://www.dropbox.com/s/fdzx6hemy1q263g/OceanRigPretrialConference
Transcript.pdf?dl=0
The Bankruptcy Court entered a Memorandum Opinion on August 24, 2017,

explaining this again at page 35 [Docket Number 129 on the Bankruptcy
Court’s docket] (“If the Cayman Court sanctions the Foreign Debtors’
schemes of arrangement, upon application of the Foreign Representatives,
the Court will determine whether each scheme of arrangement should be
recognized and enforced by this Court.”). The same day the Bankruptcy
Court entered a recognition order [Docket Number 130 on the Bankruptcy
10
arrangement proceedings should be reversed for these reasons independently
of the additional issues precluding recognition of both those proceedings and
the provisional liquidation proceedings, including but not limited to failure
to prove a Cayman Islands center of main interests.
STATEMENT OF JURISDICTION
On September 7, 2017, the Appellant timely filed a Notice of Appeal
to the U.S. District Court for the Southern District of New York. The appeal
was from a final order. The jurisdictional basis for appellate review of final
orders of the Bankruptcy Court by the District Court is 28 U.S.C. § 158,
providing: “(a) The district courts of the United States shall have jurisdiction
to hear appeals (1) from final judgments, orders and decrees[.]”
On May 4, 2018, the Appellant timely filed a Notice of Appeal of the
Judgment entered by the District Court’s dismissing her appeal, to the U.S.
Court of Appeals for the Second Circuit. (A43). The appeal is from a final
judgment. The jurisdictional basis for appellate review of judgments of the
District Court by the Court of Appeals is 28 U.S.C. § 158(d), providing: “(1)
The courts of appeals shall have jurisdiction of appeals from all final
Court’s docket] granting recognition of all eight of the debtors’ proceedings

in the Cayman Islands, after the Bankruptcy Court had explained it would
not be ruling on their four scheme of arrangement proceedings.
11
decisions, judgments, orders and decrees entered under subsections (a) and
(b) of this section.”
ISSUES PRESENTED FOR REVIEW
Did the District Court err in dismissing the chapter 15 appeal to it
from the Bankruptcy Court without reaching the merits of the appeal, on the
basis of purported lack of appellate standing?
Did the District Court err in dismissing the chapter 15 appeal to it
from the Bankruptcy Court without reaching the merits of the appeal, on the
basis of alleged equitable mootness?
STATEMENT OF THE CASE
This is an appeal from a Judgment of the U.S. District Court for the
Southern District of New York “in favor of Drill Rigs Holdings Inc.,
Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean
Rig UDW Inc., Eleanor Fisher, Iraklis Sbarounis, Simon Appell” (the
“Appellees”)5 entered by the District Court pursuant to a Memorandum
Opinion and Order by District Judge John G. Koeltl. The District Court
dismissed the Appellant’s appeal from an Order of the U.S. Bankruptcy
Court for the Southern District of New York entered by Bankruptcy Judge
Martin Glenn.
5
The Appellees are specified in the Judgment (A42) docketed as Docket
Number 30 [District Court Docket Entries at A7].
12
The Bankruptcy Court entered relief under chapter 15 of the
Bankruptcy Code that enjoins the Appellant the basis of which the Appellant
challenged on appeal to the District Court. The Appellees filed a letter with
the District Court seeking to move to dismiss the appeal and the Appellant
filed a letter in opposition seeking to go forward on the merits. (A4-A5).
The District Court held a hearing on October 26, 2017 during which the
parties presented their opposing positions with respect to proceeding. (A8-
A22 (Transcript of October 26, 2017 Conference)). The District Court then
stayed merits briefing and, over the next few weeks, the Appellees moved to
dismiss and the parties filed briefs for and against dismissal and letters.6
(A5-A6).
On April 6, 2018 the District Court entered a Memorandum Opinion
and Order (A23-A41) and Judgment (A42) dismissing the appeal without
reaching the merits of the appeal. The Appellant seeks reversal of the
6
The Appellees sometimes referred to the Appellant as a purported
shareholder. After she directed the District Court’s attention to some of the
numerous writings in which the Appellees admitted she is a shareholder,
including their filings with the Bankruptcy Court, they admitted she is a
shareholder in a filing of Ocean Rig UDW Inc. with the Securities and
Exchange Commission of November 16, 2017 stating on page 6: “a
shareholder filed an appeal of certain orders of the bankruptcy court to the
United States Bankruptcy Court for the Southern District of New York.”
https://www.sec.gov/Archives/edgar/data/1447382/000091957417008229/d
7738375_424b-3.htm Judicial notice of Ocean Rig UDW Inc.’s
representations to the SEC is respectfully requested under Federal Rule of
Evidence 201.
13
dismissal that occurred without merits review and that merits review
proceed.
SUMMARY OF THE ARGUMENT
The Appellant satisfies the standing requirements for appellate review
of the Bankruptcy Court’s rulings. She is a person aggrieved by an
injunction to which she is subject that is ongoing. Merits review is sought
with respect to whether there was a basis satisfying the requirements set by
Congress in chapter 15 of the Bankruptcy Code for the injunctive relief
pursuant to which the Appellant is enjoined. Shareholders’ challenges to the
basis for chapter 15 recognition such as the one before the Court of Appeals
here gave rise to one of the leading cases on chapter 15 recognition decided
by the District Court and the Court of Appeals. The Appellant has appellate
standing and, likewise, the appeal of chapter 15 recognition should proceed.
The District Court abused its discretion in dismissing the appeal for
equitable mootness. The analysis contains numerous errors of law. The
District Court did not apply the standards set by Congress in the Bankruptcy
Code and did not follow a series of decisions by this Court guiding how an
equitable mootness analysis should be undertaken. Chapter 15 appeals
proceed on the merits where, as here, recognition is at issue – whether the
threshold requirements imposed by Congress on foreign debtors seeking
14
injunctive relief under Bankruptcy Code sections 1520 and 1521 have been
satisfied. The District Court erred by not considering the actual effects of
assessing the appeal on the merits, which it should have done under this
Court’s precedents. The appeal is not equitably moot and should proceed.
ARGUMENT
POINT 1
THE DISTRICT COURT SHOULD NOT HAVE GRANTED THE

MOTION TO DISMISS FOR PURPORTED LACK OF APPELLATE
STANDING. THE APPELLANT HAS APPELLATE STANDING TO
PROCEED WITH THE APPEAL.
A. Standard of Review
Standing is an issue of law, subject to do novo review. See In re Point
Center Financial, Inc., 890 F.3d 1188, 1191 (9th Cir. 2018) (recent Court of
Appeals ruling applying de novo standard of review and reversing District
Court dismissal of bankruptcy appeal for lack of appellate standing).
B. Argument
The Appellant satisfies the standing requirements for appellate review
of the Bankruptcy Court’s rulings. The Bankruptcy Code imposes no limits
on standing beyond those of Article III of the United States Constitution. In
re DBSD N. Am. Inc., 634 F.3d 79 (2d Cir. 2011). The Appellant has Article
III standing to challenge the Ocean Rig debtors’ chapter 15 recognition. See
Lujan v. Defenders of the Wildlife, 504 U.S. 555, 560 (1992) (requiring an
15
injury in fact, which is concrete and particularized, actual and imminent and
caused by the conduct complained of by the litigant). The Appellant also
satisfies In re Gucci’s “person aggrieved” standard. In re Gucci, 125 F.3d
380 (2d Cir. 1997). She is a shareholder aggrieved by injunctions to which
she is subject, to which she remains subject because they are ongoing in the
U.S., entered over her objection to their basis. As the U.S. Court of Appeals
for the Second Circuit has explained:
The current Bankruptcy Code prescribes no limits on standing

beyond those implicit in Article III of the United States
Constitution. See In re Gucci, 126 F.3d 380, 388 (2d Cir. 1997).
Congress has given us jurisdiction over “all final decisions,
judgments, orders, and decrees” of the district courts in
bankruptcy cases, 28 U.S.C. § 158(d)(1), which courts in turn
have jurisdiction to review all “final judgments, orders, and
decrees” of the bankruptcy courts, id. § 158(a)(1). Nevertheless,
for practical reasons this Court and others have “adopted the
general rule, loosely modeled on the former Bankruptcy Act,
that in order to have standing to appeal from a bankruptcy court
ruling, an appellant must be ‘a person aggrieved’-a person
‘directly and adversely affected pecuniarily’ by the challenged
order of the bankruptcy court. Int'l Trade Admin. v. Rensselaer
Polytechnic Inst., 936 F.2d 744, 747 (2d Cir.1991) (citation
omitted). An appellant . . . therefore, must show not only
“injury in fact” under Article III but also that the injury is
“direct[ ]” and “financial.” Kane v. Johns-Manville Corp., 843
F.2d 636, 642 & n. 2 (2d Cir. 1988).
In re DBSD N. Am. Inc., 634 F.3d 79 (2d Cir. 2011). Consideration of a
“person aggrieved” standard is a “general rule.” In the DBSD analysis cited
above (emphasis on the word general supplied) and more recently In re
16
Barnet, this Court has explained that while the pecuniary interest aspect of
the person aggrieved standard is “often used and often useful” it is not the
only test for appellate standing in bankruptcy cases. In re Barnet, 737 F.3d
238, 242 note 1 (2d Cir. 2013). See also In re Point Center Financial, Inc.,
890 F.3d 1188, 1191 (9th Cir. 2018) (reversing District Court dismissal of
bankruptcy appeal for alleged lack of appellate standing and explaining “an
order that diminishes one’s property, increases one’s burdens, or
detrimentally affects one’s rights has a direct and adverse pecuniary effect
for bankruptcy standing purposes.”).
The Appellant is asserting her own “rights and interests” not “legal
rights or interests of third parties.” In re Quigley Co., Inc., 391 B.R. 695
(Bankr. S.D.N.Y. 2008) (cited by the District Court, concerning insurance
company standing before Bankruptcy Courts). This is not a situation like
Johns-Manville, 843 F.2d 636 (2d Cir. 1988) insofar as the appellant was
endeavoring to assert, not only his claims, but also some claims belonging to
future asbestos claimants and notice rights of a class of third party present
claimants that did not contest notice. The District Court cited its ruling in
Freeman v. Journal Register Co., 452 B.R. 367 (S.D.N.Y. 2010), in which
the District Court had reasoned based on the facts presented that “the
appellant had no basis for recovery” under a chapter 11 plan not providing a
17
recovery to equity holders. Id. at 371. The District Court concluded in that
case that the appellant was “not asserting his own legal rights and interests.”
Id. at 371. The appellant in that case was not asserting his own legal rights
and interests insofar as his appeal challenged an incentive and management
equity plan on grounds it took away from potential recoveries to equity
holders and unfairly discriminated among unsecured creditors. Here, there
are actual recoveries under the schemes of arrangement for equity holders,
and the chapter 15 recognition appeal does not seek review on appeal of a
management equity plan or treatment of unsecured creditors.
The District Court’s appellate standing ruling relies heavily on chapter
11 cases and reflects the structure of chapter 11 of the Bankruptcy Code and
the dynamics of chapter 11 plan confirmation. For example, on page 10 of
its ruling, the District Court stated the Appellant “was not entitled to receive
anything as part of the debtors’ restructuring because the debtors’ creditors
had not yet received the full portion of their claims.” This analysis is
inapposite. (A10). The schemes of arrangement enabled management to
achieve an equity stake (9.31%) and other shareholders a smaller stake than
management (0.02%) though creditors were not paid in full and have higher
priority (as a matter of the U.S. Bankruptcy Code) than management. The
18
Cayman Islands are not bound by the will of Congress as it has been
expressed in the statutory requirements of the Bankruptcy Code.
Under chapter 11 of the Bankruptcy Code, chapter 11 plans generally
cannot provide distributions to junior creditors and interests until higher
priority creditors are paid. In some instances senior creditors or interest
holders try to secure non-opposition to chapter 11 plan confirmation by
sharing their recoveries with more junior creditors or interest holders. This
is sometimes referred to -- inaccurately -- as a gift. See Black’s Law
Dictionary at https://thelawdictionary.org/gift/ (defining a gift as a
“voluntary conveyance of land, or transfer of goods, from one person to
another, made gratuitously, and not upon any consideration of blood or
money.”) Ocean Rig et al. could have (and still can) file chapter 11
proceedings, but they did not. They pursued a restructuring via schemes of
arrangement, which do not need to conform (as a matter of Cayman Islands
law) to the priority and classification laws of chapter 11 of the Bankruptcy
Code. Existing shareholders did not vote and there were no “gifts” here.
Shareholders were diluted to 0.02% as part of trying to secure continued
trading under the ticker symbol ORIG, Ocean Rig having resisted Nasdaq’s
delisting notice. As the Appellant explained to the District Court, no court
has considered whether payouts could have been limited to creditors only.
19
Consideration based on that situation would result in an advisory opinion as
the schemes contemplated 0.02% stakes for existing shareholders, with
management able to achieve a 9.31% stake and:
[e]quity got something there for a reason, which is that this is a

publicly traded company. It’s a NASDAQ traded debtor. Upon
the filing, as is normal NASDAQ stepped in to try to delist the
debtors, but the debtor wanted to stay publicly traded and keep
taking money out of the capital markets; and then now it
remains traded under the same ticker symbol, which allows its
creditors to sell off the debt that was equitized into the market,
the shareholders staying in the money was a critical part of the
plan.
(A13-A14). Whether the publicly traded parent company Ocean Rig UDW
Inc. would have re-registered had it been delisted as the District Court
assumed (A32) is also unknown and unknowable because the chapter 15
debtors took steps to ensure continued trading under the valuable ORIG
ticker symbol following which Ocean Rig UDW Inc. was not delisted.
The District Court made the observation that the Appellant did not
challenge insolvency of the debtors. (A33, “Rather than contesting the
debtors’ insolvency…”). This is not a fair critique. For one thing what
accelerated the debtors’ cash flow insolvency was raised in her brief to the
District Court opposing dismissal. The brief referred to Ocean Rig UDW
Inc.’s then CFO’s testimony that in late March 2017, prior to the provisional
liquidation filings, the debtors had upcoming interest payments due of
20
$14.9M and $4.7M, the first of which he explained could have been made
with available cash and the second with borrowed funds, and that an
incentive to timely making the payments was avoiding triggering defaults
and cross-defaults. Citing the testimony of one of the debtors’ provisional
liquidators, the Appellant’s brief explained that: “As a consequence of the
filing of winding up petitions and the commencement of the Cayman
Provisional Liquidation Proceedings, the Debtors have triggered defaults and
cross-defaults under their financial indebtedness and have exposed
themselves to any number of adverse actions in the United States.” [Docket
Number 22 on the District Court Docket, pages 13-16]. Whether and when
the Ocean Rig family of companies became insolvent, i.e. before or after the
debtors among them that petitioned for provisional liquidation proceedings
in the Cayman Islands triggered defaults and cross-defaults under some $3.7
Billion dollars in financial indebtedness by filing winding up petitions and
commencing Cayman Islands provisional liquidation proceedings, are not
issues affecting whether debtors in proceedings pending abroad can prove
eligibility for U.S. injunctions to Bankruptcy Courts under chapter 15 of the
Bankruptcy Code. And, as explained below, appellate standing in chapter
15 appeals of recognition orders is not cut off by the financial condition of
chapter 15 debtors.
21
Second Circuit case law reflects shareholder appellate standing to
contest chapter 15 recognition rulings. In In re Fairfield Sentry Limited, 714
F.3d 127 (2d Cir. 2013), the appellants were, as is the Appellant here,
minority shareholders who appealed chapter 15 recognition. In what became
one of this Court’s leading chapter 15 cases on interpreting Congressional
requirements for chapter 15 recognition, shareholders opposed chapter 15
recognition before the United States Bankruptcy Court for the Southern
District for New York then appealed to the United States District Court for
the Southern District of New York and the United States Court of Appeals
for the Second Circuit. There were no appellate standing issues precluding
the shareholders from proceeding to merits review. There are none here.
The District Court sought to differentiate Fairfield on the basis of the
Fairfield chapter 15 debtors’ financial condition. The District Court noticed
the Court of Appeals ruling in Fairfield did not discuss liabilities and yet
assumed that the assets were significant relatively. (A34, “The Court of
Appeals did not reference any liabilities.”). The Fairfield chapter 15
debtors’ liabilities to creditors and shareholders are extensive and put the
Fairfield chapter 15 debtors out of business. The Fairfield debtors were
deeply insolvent, having invested 95% of their billions of dollars in assets
with Bernard L. Madoff’s firm, which collapsed after he confessed to
22
running a Ponzi scheme. See Memorandum Decision and Order, In re
Fairfield Sentry Limited, et al., Case 1:10-cv-07311-GBD (S.D.N.Y. Sept.
16, 2011), page 2 (discussing the multi-billion dollar losses resulting from
the Ponzi scheme).
The District Court also attempted to distinguish Fairfield on the basis
the chapter 15 debtors had no creditors, writing: “However, there was no
indication that the case involved any creditors of the feeder fund -- or that
any existed -- other than its shareholders.” (A34). The chapter 15 debtors
had creditors. This was not the focus of the Court of Appeals case, which
concerned timing of the chapter 15 recognition determination, because it
does not affect that analysis. See Memorandum Decision and Order, In re
Fairfield Sentry Limited, et al., Case 1:10-cv-07311-GBD (S.D.N.Y. Sept.
16, 2011), page 3 (“Since their appointment, the Liquidators have
administered Sentry’s liquidation proceedings from the BVI with the
approval of the BVI court. Sentry’s present and former contract
counterparties, including administrative agents, payment agents, and
depositories, deal exclusively with the Liquidators as representatives of
Sentry.”); Id. at page 2 (Following the disclosure of Madoff’s scheme,
Sentry ceased its routine operations and changed its business purpose to
preserving and realizing Sentry’s assets for purposes of ultimate, orderly,
23
and equitable distribution, in compliance with the BVI insolvency law, to
creditors and other lawful claimants.”) (internal citations omitted).
The District Court should not have granted the Appellees’ motion to
dismiss for alleged lack of appellate standing. The Appellant has appellate
standing and the appeal should proceed.
POINT 2
THE DISTRICT COURT SHOULD NOT HAVE GRANTED THE

MOTION TO DISMISS FOR ALLEGED EQUITABLE MOOTNESS.
THE APPEAL IS NOT EQUITABLY MOOT AND SHOULD
PROCEED ON THE MERITS.
A. Standard of Review
Equitable mootness rulings in the context of chapter 11 cases have
been reviewed for abuse of discretion in this circuit. See, e.g., In re Charter
Commc’ns, Inc., 691 F.3d 476, 482 (2d Cir. 2012) (noting there is a circuit
split on the standard of review). The District Court’s ruling with respect to
equitable mootness in the context of this appeal, which is a chapter 15
appeal, did not follow binding precedential rulings of this Court in chapter
11 or chapter 15 cases, and includes multiple errors of law. It should be
reversed for abuse of discretion. See Koon v. United States, 518 U.S. 81, 100
(1996) (“A district court by definition abuses its discretion when it makes an
error of law.”).
24
B. Argument
This District Court should not have granted the motion to dismiss
based on purported equitable mootness; granting it was an abuse of
discretion because the District Court’s exercise of discretion was guided by
errors and erroneous legal conclusions. Id (“The abuse-of-discretion
standard includes review to determine that the discretion was not guided by
erroneous legal conclusions.”). Among the errors here are that the District
Court treated a decision under the repealed predecessor of chapter 15 by the
U.S. District Court for the Southern District of New York in Allstate Ins. v.
Hughes, 174 B.R. 884 (S.D.N.Y. 1994) as a ruling by the United States
Court of Appeals for the Second Circuit (A35, “And the Court of Appeals
for the Second Circuit has dismissed on mootness grounds an appeal from an
injunction that enforced, pursuant to 11 U.S.C. § 304 (the predecessor of
Chapter 15), provisions of a foreign arrangement winding up foreign
companies.”). Allstate is a nonbinding ruling by a District Court not a ruling
by the Court of Appeals. Another error is that the District Court in Allstate
did not, in fact, dismiss the appeal before it on mootness grounds as the
District Court erroneously characterized it as having done. The District
Court reached the merits in AllState and stated this expressly. Allstate, 174
B.R. at 89 (“I reach the merits of Allstate’s appeal.”).
25
The District Court in the ruling appealed from also erred in stating the
Appellant had not cited authority for why law under the repealed section 304
of the Bankruptcy Code in the context of which Allstate was decided did not
have force in chapter 15. (A38). The Appellant had, in fact, cited multiple
authorities and explained at pages 19-20 of her brief filed with the District
Court as Docket Number 22:
The analysis in Allstate Ins. Co. v. Hughes, 174 B.R. 884, 889
(S.D.N.Y. 1994), on which the Appellees rely is not binding, and was
overwritten by the enactment of chapter 15. The appellant was an insurance
company seeking to enforce arbitration rights against English companies that
were in the insurance and reinsurance business. See id. at 885. The
liquidators appointed in the UK filed ancillary cases under former
Bankruptcy Code section 304, and the U.S. relief at issue was based on
section 304’s discretionary determinations, see id. at 886. The Court
concluded that Allstate could submit claims and its substantive right to
arbitrate was not violated. See id. at 891. After reaching the merits
notwithstanding mootness concerns, the Court decided not to disturb a year
1993 discretionary injunction, see id., granted under section 304, which was
the standard in 1994 and is no longer the standard for U.S. assistance in
2017 following enactment of chapter 15 of the Bankruptcy Code in 2005.
26
Case law under former Bankruptcy Code section 304 is not applicable
in chapter 15. In the context of an insurance company liquidation, the
context in which Allstate was decided, the Bankruptcy Court explained:
The general principles of comity that governed

acknowledgement of cross-border matters under former section
304 no longer apply to recognition under chapter 15. Lavie v.
Ran, 406 B.R. 277, 282 (S.D. Tex. 2009), aff'd, 607 F.3d 1017
(5th Cir. 2010).
Approaches based purely on the doctrine of comity or on

exequatur do not provide the same degree of predictability and
reliability as can be provided by specific legislation, such as the
one contained in the Model Law, on judicial cooperation,
recognition of foreign insolvency proceedings and access for
foreign representatives to courts.
In re British American Ins. Co. Ltd., 488 B.R. 205, 213 (Bankr. S.D. Fla.
2013). See also In re Bear Stearns High-Grade Structured Credit Strategies
Master Fund, Ltd., 374 B.R. 122, 132 (Bankr. S.D.N.Y. 2007) (“The
Petitioners' reliance on the discretionary and flexibility attributes of caselaw
under former section 304 of the Bankruptcy Code is misplaced.”).
The District Court erred by applying a “substantially completed”
standard inconsistent with both the express terms of the Bankruptcy Code
and the precedents of the Court of Appeals (A38, using “substantially
completed” three times) as a trigger for equitable mootness analysis.
Equitable mootness analysis in chapter 11 cases is triggered by “substantial
consummation.” This is a defined term applicable in chapter 11 appeals, not
27
chapter 15 appeals, by its terms and placement in chapter 11 of the
Bankruptcy Code in chapter 11. See In re Charter Commc’ns, Inc., 691 F.3d
476, 482 (2d Cir. 2012) (discussing the defined term “substantial
consummation”). The definition opens with: “In this chapter” and has a
tripartite definition applicable only to plans in chapter 11 cases. 11 U.S.C. §
1101(2).
In Barnet, the Court of Appeals guided determination of whether a
provision of the Bankruptcy Code applies in chapter 15 cases and related
appeals. See In re Barnet, 737 F.3d 238, 246-47 (2d Cir. 2013). Citing U.S.
Supreme Court and Second Circuit jurisprudence, this Court explained that
statutory construction begins with the language employed by Congress. A
statute is to be construed so that effect is given to all of its provisions,
rendering none inoperative. See id. The Court’s analysis proceeded under 11
U.S.C. § 103, a provision in chapter 1 of the Bankruptcy Code, titled
Applicability of chapters. Under Barnet, (i) chapter 11 provisions not made
part of chapter 15 by Congress, such as 11 U.S.C. § 1101(2), and (ii) cases
under chapter 11, which is the only context in which substantial
consummation can occur, do not preclude this appeal from proceeding on
the merits.
Chapter 15 appeals proceed on the merits where, as here, recognition
28
is at issue - the threshold requirement imposed by Congress on foreign
debtors seeking injunctive relief under Bankruptcy Code sections 1520 and
1521. In the case In Fairfield Sentry Limited, 714 F.3d 127 (2d Cir. 2013),
discussed above, the appellants were enjoined minority shareholders
appealing chapter 15 recognition by the Bankruptcy Court. The Fairfield
appellants were not required to seek stays of British Virgin Islands
proceedings subject to foreign court oversight, or U.S. Bankruptcy Court
orders to proceed with their appeals to the District Court and this Court. As
this Court has explained, the doctrine of equitable mootness was developed
judicially "in response to the particular problems presented by the
consummation of plans of reorganization under Chapter 11” of the
Bankruptcy Code. In re BGI, Inc., 772 F.3d 102, 107 (2d Cir. 2014).
Equitable mootness analysis is triggered when a debtors’ chapter 11
organization plan has been “substantially consummated,” a defined term in
chapter 11 of the Bankruptcy Code. See id. at 108 (citing In re Charter
Commc’ns, Inc., 691 F.3d 476 (2d Cir. 2012) and FritoLay, Inc. v. LTV Steel
Co. (In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.1993)); In re Metromedia
Fiber Network, Inc., 416 F.3d 136 (2d Cir. 2005) (“Because equitable
mootness bears only upon the proper remedy, and does not raise a threshold
question of our power to rule, a court is not inhibited from considering the
29
merits before considering equitable mootness. . . . Often, an appraisal of the
merits is essential to the framing of an equitable remedy”). “Nor is a claim
automatically equitably moot if the relief requested would require that a
confirmed plan be altered. . . . The Chateaugay factors ensure that there is
no per se equitable mootness by requiring a court to examine the actual
effects of the requested relief. Finally, in examining a debtor’s contention
that a claim is equitably moot, we cannot rely solely on the debtors’
conclusory predictions or opinions that the requested relief would doom the
reorganized company. Instead Chateaugay II requires an analytical inquiry
into the likely effects of the relief an appellant seeks and must be based on
facts.” Charter, 691 F.3d at 482.
The District Court did not follow Chateaugay and also erred by not
following Charter, which elaborated on Chateaugay. The District Court
treated the Appellant’s appeal as per se equitably moot without examining
the actual effects of the requested relief, which must be based on facts, under
these binding precedents. The District Court also made an error of law
applying this Court’s ruling in Chateaugay as it did because the presumption
of equitable mootness is triggered by substantial consummation. The
presumption was not triggered in the current appeal and the District Court
erred by dismissing the appeal based in large part on the Appellant not
30
seeking a stay. She was not required to in order to overcome a presumption
of equitable mootness. The presumption did not arise because there was no
substantial consummation. That standard is only subject to satisfaction in
chapter 11 per this Court’s ruling in Barnet, discussed above. Moreover, as
a practical matter, the status quo was preserved pending adjudication of the
appeal because the injunctions challenged on appeal remain in force during
the course of the appeal.
The District Court also did not proceed as per a more recent Second
Circuit case on equitable mootness, decided on October 20, 2017 and raised
by the Appellant during the Conference before the District Court on October
27, 2017 (A14-A15) and again in briefing. The ruling of the Court of
Appeals in the MPM Silicones chapter 11 appeals explains the underlying
appeals went forward without a stay in place. Neither the District Court nor
this Court granted the debtors’ motions to dismiss based on alleged equitable
mootness. See In re MPM Silicones LLC, 2017 WL 4772248 (2d Cir.
October 20, 2017) (“We decline to dismiss any of these appeals as equitably
moot.”). In the pending Ocean Rig appeal there are injunctions in place; in
MPM Silicones there were no stays or other injunctive relief in place, and
even in that context there was no reason to rush. The appellate courts were
reviewing a chapter 11 plan confirmed on September 9, 2014, id. at *3. The
31
appeal to the Second Circuit was submitted on November 9, 2016 and
decided on October 20, 2017. See id. at *1. This Court reversed in part
notwithstanding contentions it would be inequitable to reach the merits. See
id. at *14 note 17 (“Debtors filed with the district court a motion to dismiss
the appeal of the bankruptcy court’s confirmation order on the basis of
equitable mootness. 17-1771 JA 4570-88. The district court made no ruling
on the motion, concluding that it was ‘mooted by this Court’s decision to
affirm the Orders of the Bankruptcy Court.’ 531 B.R. at 338 n.14. Debtors
then filed motions to dismiss on equitable mootness grounds with this Court,
15-1682 Doc. 58; 15-1771 Doc. 62, which we summarily denied without
prejudice to Debtors ‘rais[ing] the issue in their merits brief,’ 15-1682 Doc.
159; 15-1771 Doc. 102).”).
The District Court abused its discretion by granting the motion to
dismiss without allowing merits briefing to proceed or otherwise seeking to
determine the effect of proceeding with review of the final order appealed to
the District Court. The Appellant had requested the opportunity to address
the equitable mootness issues raised by the Appellees in her opening brief.
She opposed proceeding with briefing on a motion to dismiss the Appellees
anticipated being ready to file by October 18, 2017 given the District Court
had previously ordered merits briefing commence by October 30, 2017:
32
Appellant has been proceeding under the Individual Practices

requirements and reasonably relied on them applying to the
appellees since the appeal was assigned on September 22, 2017.
Leave to move without a pre-motion conference would be
prejudicial, and should be denied. The setting of a pre-motion
conference on an emergency basis should also be denied. There
has been no showing of irreparable harm under Federal Rule of
Bankruptcy Procedure 8013(d) in support of briefing on an
emergency basis and good faith bases are negated by the fact
that the debtors have the benefit of injunctions going into the
appeal. Moreover, given the representation a motion to dismiss,
once cleared to be filed, can be prepared for submission no
earlier than Wednesday, October 18, a response and reply
would be due per the Local Rules after Appellant’s opening
brief. The Appellant . . . is prepared to show she has standing
and the appeal is not moot actually or equitably in her opening
brief due per the Scheduling Order in two weeks. For these
reasons and those expressed below, the Appellant respectfully
requests the relief requested should de denied in its entirety.
[Docket Number 14 on the District Court Docket, page 1]. The District
Court stayed merits briefing on October 26, 2017 (A26), days before the
Appellant’s opening brief on the final order appealed from to the District
Court was due to be filed on October 30, 2017.
The District Court’s explanation of its reasoning for concluding the
appeal is equitably moot was based on “foreign bankruptcy proceedings that
have been substantially consummated” (A39), which shows the District
Court conflated chapter 11 and chapter 15 because there is no substantial
consummation outside of chapter 11, as explained above. The stated concern
over not promoting international cooperation (A39) is not shared by
33
Bankruptcy Courts, which are subject matter specialists with respect to
international bankruptcies and cooperation considerations and receive
petitions for recognition under chapter 15 on a fairly regular basis. The
Bankruptcy Courts grant some recognition requests while denying others.
This is because Congress has specified legal requirements under chapter 15
of the Bankruptcy Code. The appeal to the District Court was of threshold
statutory chapter 15 assistance requirements under the applicable de novo
legal review standard, concerning whether there was a defensible basis for
broad U.S. injunctions that are not extensions of the conservative ones in the
Ocean Rig debtors’ Cayman Islands schemes of arrangement. Recognition
under chapter 15 of the Bankruptcy Code is an express statutory condition
precedent to injunctive relief under 11 U.S.C. § 1520 and 11 U.S.C. § 1521
and can be revoked along with ensuing relief where it is shown that the
grounds for granting it were lacking. See In re Creative Finance Ltd., 543
B.R. 498 (Bankr. S.D.N.Y. 2016) (“Obviously, upon the denial of
recognition, the foreign representative (here the Liquidator) becomes
ineligible to obtain the benefits of section 1520, or to obtain the additional
benefits potentially available under section 1521. Also, when recognition is
denied, a U.S. court must consider the extent to which any interim relief,
previously authorized under section 1519 or otherwise, should come to an
34
end.”). The District Court’s understanding of how comity considerations
(A40) come into play in chapter 15 cases relative to how they did under
section 304 of the Bankruptcy Code, which is no longer in effect, is also in
error. “Requiring recognition as a condition to nearly all court access and
consequently as a condition to granting comity distinguishes Chapter 15
from its predecessor section 304.” In re Bear Stearns, 389 B.R. 333.
The District Court abused its discretion also by not considering the
actual effects of assessing the appeal on the merits, which it should have
done under this Court’s precedents. “Chateaugay II requires an analytical
inquiry into the likely effects of the relief an appellant seeks and must be
based on facts.” Charter, 691 F.3d at 482. The closing of the District
Court’s ruling shows it was considering the situation only in the abstract,
making analogies between chapter 15 cases and domestic reorganizations
and between chapter 15 and the repealed section 304 of the Bankruptcy
Code (A40). See In re Zenith Electronics Corp., 329 F.3d 338 (3d Cir.
2003) (“We conclude that the District Court abused its discretion in making
that determination for a number of reasons, the most significant of which
was its decision that the first and most important Continental factor, i.e.,
whether the reorganization plan had been "substantially consummated,"
favored a finding of equitable mootness, even though a successful appeal
35
would have only a minor impact on and, at all events, could not result in the
unraveling of the plan…. The District Court also abused its discretion in
determining that even if equitable mootness does not apply to the Trustee's
appeal, that appeal should be dismissed on the basis of ‘other equitable
considerations.’ . . . The judgment of the District Court will be reversed and
the case remanded for further proceedings.”).
CONCLUSION
For all of the reasons stated herein, the judgment below of the District
Court dismissing the appeal should be reversed.
Dated: New York, New York

August 13, 2018
Respectfully submitted,
/s/ Tally M. Wiener

119 west 72nd Street, PMB 350
New York, NY 10023
(212) 574-7975
36
CERTIFICATE PURSUANT TO RULE 32(A)(7)(B)
This brief is certified as complying with the limitations for length set
forth in Federal Rule of Appellate Procedure 32(a)(7)(B). It is within the
word limitations because it contains no more than 8,100 words.
/s/ Tally M. Wiener

119 west 72nd Street, PMB 350
New York, NY 10023
(212) 574-7975
37

Appellant/Petitioner&#39;s Brief (In Re: Ocean Rig UDW Inc., Second Circuit Court of Appeals Case No. 18-1374)

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Case 18-1374, Document 43-1, 08/13/2018, 2366772, Page1 of 38

mntttb &tatt- QCourt of ~ptal-

In Re: Ocean Rig UDW Inc.

Tally Mindy Wiener,

Simon Appell, Foreign Representative, Eleanor Fisher, Foreign

BRIEF FOR THE APPELLANT

TALLY M. WIENER, ESQ.

ISSUES PRESENTED FOR REVIEW 13

STATEMENT OF THE CASE 13

SUMMARY OF THE ARGUMENT 15

The District Court should not have granted the

The District Court should not have granted the

Allstate Ins. Co. v. Hughes, 174 B.R. 884

Antony Gibbs & Sons v. La Société Industrielle et

Freeman v. Journal Register Co.,

FritoLay, Inc. v. LTV Steel Co.

Hertz Corp. v. Friend, 559 U.S. 77 (2000) 7

In re Barnet, 737 F.3d 238 (2d Cir. 2013) passim

In re Bear Stearns High-Grade Structured Credit

In re BGI, Inc., 772 F.3d 102 (2d Cir. 2014) 30

In re British American Ins. Co. Ltd., 488 B.R. 205

In re Chateaugay Corp., 988 F.2d 322 (2d Cir. 1993) passim

In re Creative Finance Ltd., 543 B.R. 498

In re DBSD N. Am. Inc., 634 F.3d 79

In re Fairfield Sentry Ltd.,714 F.3d 127 (2d Cir. 2013) passim

In re Gucci, 126 F.3d 380 (2d Cir.1997) 17

Lavie v. Ran, 406 B.R. 277 (S.D. Tex. 2009),

In re Metromedia Fiber Network, Inc.,

In re MPM Silicones LLC, 2017 WL 4772248

In re Point Center Financial, Inc., 890 F.3d 1188

In re Quigley Co., Inc., 391 B.R. 695

In re SPhinX, Ltd., 351 B.R. 103

In re Zenith Electronics Corp., 329 F.3d 338

Int'l Trade Admin. v. Rensselaer Polytechnic Inst.,

Kane v. Johns-Manville Corp., 843 F.2d 636

Koon v. United States, 518 U.S. 81 (1996) 25

Lujan v. Defenders of the Wildlife,

11 U.S.C. § 304 passim

11 U.S.C. § 1520 6, 16, 30

11 U.S.C. § 1521 6, 16, 30

28 U.S.C. § 158 12-13, 15

Federal Rule of Bankruptcy Procedure 1007(a)(4) 10

Federal Rule of Bankruptcy Procedure 1008 10

Federal Rule of Evidence 201 14

are foreign companies that became the subjects of chapter 15 bankruptcy

proceedings in New York after joint provisional liquidators Simon Appell

District of New York. The Appellant, Tally Mindy Wiener, is a U.S.

ORIG. At issue in this appeal is appellate review of injunctive relief ordered

by the Bankruptcy Court to which the Appellant is subject after contesting

the Ocean Rig debtors’ eligibility for chapter 15 recognition at trial.

Chapter 15 recognition is not automatic and is the statutory condition

U.S. if U.S. relief is needed. As the Bankruptcy Court observed in Bear

Stearns, representatives of Cayman Islands proceedings that are denied

possibility of commencing bankruptcy cases under chapters 7 or 11 of the

Bankruptcy Code. In re Bear Stearns High-Grade Structured Credit

389 B.R. 325 (S.D.N.Y. 2018).

To achieve assistance available upon recognition as a foreign main

proceeding, in this case injunctive relief,1 representatives of debtors’

pending in the country in which the debtors’ center of main interests

(COMI) was at the time of the chapter 15 petition date, “subject to an

inquiry into whether the process has been manipulated.” In re Fairfield

on limited Cayman Islands connections they presented. The alleged

another company’s space.2 Also raised at trial was non-satisfaction of the

“widely adopted list of COMI factors” developed in the Southern District of

Appellant/Petitioner's Brief (In Re: Ocean Rig UDW Inc., Second Circuit Court of Appeals Case No. 18-1374)

Appellant/Petitioner's Brief (In Re: Ocean Rig UDW Inc., Second Circuit Court of Appeals Case No. 18-1374)