Vitro SAB Files Opening Brief in Chapter
August 13, 2012
by Casey Neeley, email@example.com
Vitro SAB has filed its opening brief to appeal a recent decision
by the U.S. Bankruptcy Court for the Northern District of Texas
not to enforce the company's Mexican plan of reorganization in the
U.S. The appeal brief was filed in the U.S. Court of Appeals for
the Fifth Circuit on Friday. The company had announced
its intention to appeal the case in late June.
Counsel for Vitro argues in the brief that, "because the Bankruptcy
Court misinterpreted and misapplied chapter 15 in its consideration
of the enforceability of the Concurso Plan, this court must reverse
the enforcement denial order, direct entry of an order enforcing
the Concurso Approval Order and the Concurso Plan in the United
States, and grant Vitro SAB such further relief as it deems just
Vitro argues the appeal brief under the application of chapter
11 bankruptcy rulings, citing the lack of difference between several
of those rulings and its case.
"It should not impede enforcement of a foreign reorganization
plan in a chapter 15 case when it would not even impede confirmation
of the same plan in a chapter 11 case," reads Vitro's appeal
brief. "Whether the Bankruptcy Court erred as a matter of law
when, after it concluded that the Concurso Approval Order was the
product of a process that was not corrupt or unfair to the appellees,
it refused to enforce the Concurso Approval Order solely because
the Concurso Plan novated guarantee obligations of non-debtor parties
and replaced them with new obligations of substantially the same
The company further argues that "the relevant policies and
provisions of chapter 15 mandate that the Concurso Plan and the
Concurso Approval Order be enforced."
The appeal also discusses the weight of the court's decision. "This
appeal - the culmination of the most heavily litigated case under
Bankruptcy Code chapter 15 since Congress adopted the Model Law
on Cross-Border Insolvency 'to facilitate cooperation between U.S.
courts and foreign bankruptcy proceedings' - presents this Court
with the opportunity to embrace the immutable truth expressed by
Justice Cardozo a century ago," writes Vitro. "The outcome
of this appeal is crucial to international cooperation in cross-border
insolvency proceedings, which the United States has long championed,
and to the continued survival of one of Mexico's largest manufacturing
enterprises with more than 17,000 employees worldwide."
Vitro officials previously noted in its motion
dated June 28 that they expect to "succeed on the merits
of this appeal in light of binding Fifth Circuit precedent ... that
compels reversal of the legal conclusions reached by the Bankruptcy
The noteholders must file their reply brief by August 30. Vitro
will have until September 7 to respond. Oral arguments are scheduled
for the first week of October.
The appeal case follows a June ruling by a Texas bankruptcy court,
ruled against the enforcement of Vitro's Mexican Plan of Reorganization
in the United States in June. In his ruling, the judge stated, "such
[an] order manifestly contravenes the public policy of the United
States and is also precluded from enforcement under 1507, 1521 and
1522 of the Bankruptcy Code."
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