     09-4302-cv (L)
     In Re: Parmalat Securities Litigation


 1                      UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5
 6
 7                               August Term, 2010
 8
 9   (Argued: November 2, 2010               Decided: January 18, 2011)
10
11            Docket Nos. 09-4302-cv (L); 09-4306-cv (con);
12                           09-4373-cv (con)
13
14
15                    Parmalat Capital Finance Limited,
16
17                                                   Plaintiff-Appellant,
18
19    Dr. Enrico Bondi, Extraordinary Commissioner of Parmalat
20    Finanziaria S.p.A., Parmalat S.p.A., and other affiliated
21   entities, in Extraordinary Administration under the laws of
22                              Italy,
23
24   Plaintiff-Counter-Defendant-Third-Party-Defendant-Appellant,
25
26        Capital & Finance Asset Management S.A., Cattolica
27    Partecipazioni S.p.A., Hermes Focus Asset Management Europe
28    Limited, Erste Sparinvest Kapitalanlagegesellschaft m.b.H.,
29      Solotrat, Societe Moderne des Terrassements Parisiens,
30    Renato Esposito, Fondazione Italo Monzino, Southern Alaska
31    Carpenters Pension Fund, on behalf of itself and all others
32       similarly situated, Cristina Poncibo, Margery Louise
33    Kronengold, Robert McQueen, Custodian, individually and on
34     behalf of all others similarly situated, Ferri Giampolo,
35      Food Holdings Limited, Dairy Holdings Limited, G. James
36       Cleaver, Gordon I. MacRae, Gerald K. Smith, Laura J.
37    Sturaitis, Monumental Life Insurance Company, TransAmerica
38       Occidental Life Insurance Company, TransAmerica Life
39    Insurance Company, Aviva Life Insurance Company, Principal
40     Global Investors, LLC, Principal Life Insurance Company,
41   Scottish Re (US) Inc., Hartford Life Insurance Company, Plan
42                   Administrator G. Peter Pappas,
 1
 2                                                      Plaintiffs,
 3
 4                              –v.–
 5
 6      Bank of America Corporation, Banc of America Securities
 7     Limited, Bank of America, N.A., Bank of America National
 8   Trust & Savings Association, Banc of America Securities LLC,
 9        Bank of America International, Ltd., Grant Thornton
10                        International, Ltd,
11
12                                            Defendants-Appellees,
13
14        Grant Thornton International, Grant Thornton LLP,
15
16           Defendants-Third-Party-Plaintiffs-Counter-Claimants-
17                                                     Appellees,
18
19   Deutsche Bank AG, Morgan Stanley & Co., Incorporated, Bonlat
20        Financing Corporation, Calisto Tanzi, Fausto Tonna,
21     Coloniale S.p.A., Citigroup Inc., Buconero, LLC, Zinni &
22      Associates, P.C., Deloitte Touche Tohmatsu, Deloitte &
23   Touche S.p.A., a Societa per Azioni under the laws of Italy,
24    James E. Copeland Jr., Parmalat Finanziaria S.p.A., Stefano
25      Tanzi, Luciano Del Soldato, Domenico Barili, Francesco
26      Giuffredi, Giovanni Tanzi, Deloitte & Touche USA, LLP,
27       Deloitte & Touche L.L.P., Credit Suisse First Boston,
28    Citibank, Eureka Securitisation plc, Vialattea LLC, Pavia e
29    Ansaldo, Banca Nazionale Del Lavoro S.p.A., Citibank, N.A.,
30    Professor Maria Martellini, Banca Intesa S.p.A., Deloitte &
31      Touche Tohmatsu Auditores Independentes, Credit Suisse
32     International, Credit Suisse Securities (Europe) Limited,
33    Credit Suisse, Credit Suisse Group, Grant Thorton S.p.A., a
34     Societa per Azioni under the laws of Italy, now known as
35                         Italaudit, S.p.A.,
36
37                                                      Defendants,
38
39                        Parmatour S.p.A.,
40
41                               Defendant-Third-Party-Defendant.
42
43

                                  2
 1   Before:
 2    C ABRANES, W ESLEY, Circuit Judges, and K OELTL, * District Judge.
 3
 4        Plaintiff-Appellant Parmalat Capital Finance Limited
 5   and Plaintiff-Counter-Defendant-Third-Party-Defendant-
 6   Appellant Dr. Enrico Bondi (collectively, “Appellants”)
 7   commenced these actions to recover damages that they contend
 8   are owed to them pursuant to Illinois state law. In this
 9   appeal, Appellants challenge orders of the United States
10   District Court for the Southern District of New York
11   (Kaplan, J.) and the Northern District of Illinois
12   (Castillo, J.) denying Appellants’ motions for remand and
13   abstention, and granting summary judgment to
14   Defendants-Third-Party-Plaintiffs-Counter-Claimants-
15   Appellees Grant Thornton International and Grant Thornton
16   LLP. We hold that the district courts had proper removal
17   jurisdiction over these actions. As a matter of first
18   impression in our Circuit, we set forth the standard for
19   determining “timely adjudication” for the purposes of 28
20   U.S.C. § 1334(c)(2) abstention. We then VACATE and REMAND
21   to allow the district court to consider, in light of this
22   Opinion, whether abstention is mandatory in the
23   circumstances presented here.
24
25        A FFIRMED in part and V ACATED and R EMANDED in part.
26
27
28
29             K ATHLEEN M. S ULLIVAN, Quinn Emanuel Urquhart &
30                    Sullivan, LLP, New York, NY (Peter E.
31                    Calamari, Terry L. Wit, Sanford I. Weisburst,
32                    on the brief), for Plaintiff-Counter-
33                    Defendant-Third-Party Defendant-Appellant
34                    Bondi.
35
36             J. G REGORY T AYLOR, Diamond McCarthy LLP, New York, NY
37                   (Allan B. Diamond, Richard I. Janvey, J.
38                   Benjamin King, on the brief), for Plaintiff-


          *
            The Honorable John G. Koeltl, of the United States
     District Court for the Southern District of New York, sitting by
     designation.

                                       3
 1                 Appellant Parmalat Capital Finance Limited.
 2
 3            L INDA T . C OBERLY, Winston & Strawn LLP, Chicago, IL
 4                   (Bruce R. Braun, William P. Ferranti, on the
 5                   brief), for Defendant-Third-Party-Plaintiff-
 6                   Counter-Claimant-Appellee Grant Thornton LLP.
 7
 8            J OSEPH B. T OMPKINS J R., Sidley Austin LLP,
 9                   Washington, DC (Alan C. Geolot, Mark P.
10                   Guerrera, Robert D. Keeling, A. Robert
11                   Peitrzak, Daniel A. McLaughlin, on the brief),
12                   for Defendants-Appellees Bank of America et
13                   al.
14
15            J AMES L. B ERNARD, Strook & Strook & Lavan LLP, New
16                   York, NY (Quinlan D. Murphy, Katherine I.
17                   Puzone, David M. Cheifetz, on the brief), for
18                   Defendant-Third-Party-Plaintiff-Counter-
19                   Claimant-Appellees Grant Thornton
20                   International, Inc. and Grant Thornton
21                   International Ltd.
22
23            P ARTHA P. C HATTORAJ, Markowitz & Chattoraj LLP, New
24                   York, NY for Amicus Curiae Guido Alpa.
25
26            G EORGE M. P AVIA, Pavia & Harcourt LLP, New York, NY
27                   for Amicus Curiae the Government of the
28                   Republic of Italy.
29
30
31
32   WESLEY, Circuit Judge:

33       The questions presented are (1) whether the district

34   court erred in exercising jurisdiction over plaintiffs’

35   claims, pursuant to 28 U.S.C. § 1334(b); and (2) whether the

36   district court properly declined to abstain from exercising

37   that jurisdiction, pursuant to 28 U.S.C. § 1334(c)(2).      This


                                    4
 1   appeal is taken from judgments of the United States District

 2   Court for the Southern District of New York (Kaplan, J.) and

 3   challenges rulings made by that court and by the United

 4   States District Court for the Northern District of Illinois

 5   (Castillo, J.).   The contested rulings include two orders

 6   dated February 25, 2005 and February 16, 2006 finding

 7   federal jurisdiction in the present cases and declining to

 8   abstain from exercising that jurisdiction.     We conclude that

 9   jurisdiction was proper, but remand to allow the district

10   court 1 to consider, in light of this Opinion, whether

11   abstention is mandatory.

12                            I. BACKGROUND

13        These cases arise from the financial collapse of

14   Parmalat Finanziaria, S.p.A. and many of its subsidiaries.

15   Twenty-three Parmalat-related corporations are now in the

16   midst of bankruptcy and reorganization proceedings in Italy.

17   Italy’s Minister of Finance appointed Dr. Enrico Bondi, here

18   the Plaintiff-Counter-Defendant-Third-Party-Defendant-



          1
            Although multiple courts were initially involved in these
     cases, the multidistrict litigation proceedings are now before
     the United States District Court for the Southern District of New
     York (Kaplan, J.). We thus remand to that court. References
     herein to “the district court” refer to the United States
     District Court for the Southern District of New York unless
     otherwise noted.

                                    5
 1   Appellant, to serve as Extraordinary Commissioner of these

 2   bankruptcy proceedings in a role analogous to a Chapter 11

 3   Trustee.    Parmalat Capital Finance Limited (“PCFL”), a

 4   Parmalat subsidiary headquartered in the Grand Caymans, is

 5   likewise insolvent and currently in liquidation proceedings.

 6   These liquidation proceedings are ongoing in the Grand

 7   Caymans and are overseen by Joint Official Liquidators

 8   appointed by the Grand Court of the Cayman Islands.

 9        In January and June 2004 respectively, PCFL and Bondi

10   commenced separate proceedings pursuant to former 11 U.S.C.

11   § 304 in the Bankruptcy Court for the Southern District of

12   New York.    Section 304 permitted PCFL and Bondi, as

13   representatives of the foreign bankruptcy estates, to

14   commence bankruptcy cases in the United States in order to

15   enjoin litigation against PCFL and Parmalat in United States

16   courts. 2   Section 304 also empowered PCFL and Bondi to seek

17   orders from the bankruptcy court regarding turnover of

18   property in the United States belonging to the respective

19   bankruptcy estates.

20        Meanwhile, purchasers of Parmalat’s debt and equity


          2
              Although § 304 was repealed, it remains applicable to
     this case. See Pub. L. 109-8 (enacting Chapter 15 of the
     Bankruptcy Code and repealing 11 U.S.C. § 304 for all ancillary
     petitions filed after October 17, 2005).

                                    6
 1   securities filed class action lawsuits against Parmalat and

 2   others for securities fraud.     Those cases were consolidated

 3   before Judge Kaplan in the United States District Court.

 4       In August 2004, Bondi filed suit in Illinois state

 5   court against Defendants-Third-Party-Plaintiffs-Counter-

 6   Claimants-Appellees Grant Thornton International and Grant

 7   Thornton LLP (collectively, “Grant Thornton”).     Bondi

 8   alleges claims against Grant Thornton arising under Illinois

 9   state law for professional malpractice, fraud, aiding and

10   abetting fraud and constructive fraud, negligent

11   misrepresentation, aiding and abetting breach of fiduciary

12   duty, theft and diversion of corporate assets, conversion,

13   unjust enrichment, aiding and abetting fraudulent transfer,

14   deepening insolvency, and unlawful civil conspiracy.       On

15   September 16, 2004, Grant Thornton removed the case to the

16   United States District Court for the Northern District of

17   Illinois on the basis of 28 U.S.C. §§ 1334(b) and 1452.         In

18   its Notice of Removal, Grant Thornton argued, among other

19   things, that removal was proper because the Illinois state

20   law case was “related to” Bondi’s § 304 proceedings in the

21   Southern District of New York.     The next day, Bondi filed a

22   “Motion to Remand to State Court.”     Bondi argued therein

23   that there was no federal jurisdiction over the case and, in

                                    7
 1   any event, the court should abstain pursuant to 28 U.S.C. §

 2   1334(c)(2).

 3        On December 9, 2004, the Judicial Panel on

 4   Multidistrict Litigation transferred Bondi’s action against

 5   Grant Thornton to Judge Kaplan in the Southern District of

 6   New York.     On February 25, 2005, Judge Kaplan denied Bondi’s

 7   Motion to Remand to State Court.      The district court found

 8   that it had jurisdiction pursuant to § 1334(b) and that

 9   abstention was not mandatory. 3     The district court reasoned

10   that Bondi failed to file a motion for abstention and, in

11   the alternative, Bondi failed to demonstrate that his claims

12   could be “timely adjudicated” in Illinois state court. 4     28

13   U.S.C. § 1334(c)(2).

14        In December 2005, PCFL likewise filed suit against

15   Grant Thornton in Illinois state court alleging similar


          3
            The district court likewise declined Bondi’s motion to
     abstain pursuant to 28 U.S.C. § 1334(c)(1). It concluded that
     permissive abstention was not appropriate because of “the
     importance of coordinating this proceeding with the international
     bankruptcy and the Securities Fraud Action outweighs any interest
     in comity with Illinois courts or Illinois law.” Bondi does not
     challenge this ruling on appeal.
          4
            Shortly after the district court issued its order, Bondi
     filed a motion under 28 U.S.C. §1292(b) to certify questions of
     law related to remand and abstention. The district court denied
     Bondi’s motion, precluding him from pursuing an interlocutory
     appeal. Accordingly, Bondi’s first opportunity to challenge
     Judge Kaplan’s ruling on remand and abstention arose in the
     present appeal following the entry of judgment below.

                                     8
 1   claims to those asserted by Bondi.    On January 5, 2006,

 2   Grant Thornton removed the case to the United States

 3   District Court for the Northern District of Illinois on the

 4   basis of 28 U.S.C. §§ 1334(b) and 1452.     In its Notice of

 5   Removal, Grant Thornton argued, as in the Bondi case, that

 6   removal was appropriate because the state law claims were

 7   related to PCFL’s § 304 proceeding.    On January 20, 2006,

 8   PCFL filed a motion titled “Parmalat Capital Finance

 9   Limited’s Motion to Abstain and Remand.”     Like Bondi, PCFL

10   argued that there was no federal jurisdiction over its case

11   and that abstention was mandatory pursuant to 28 U.S.C. §

12   1334(c)(2). 5   By short order on February 16, 2006, the

13   Northern District of Illinois denied PCFL’s motion, noting

14   that it “fully adopt[ed]” the reasoning of the Southern

15   District of New York’s February 25, 2005 order denying

16   Bondi’s remand motion.    The case was then transferred to the

17   United States District Court for the Southern District of

18   New York for consolidation with Bondi’s case.

19        Following discovery, the district court entertained a

20   series of motions to dismiss the complaints or to grant



          5
           In addition, PCFL moved for permissive abstention pursuant
     to 28 U.S.C. § 1334(c)(1). Like Bondi, PCFL does not challenge
     the denial of its motion for permissive abstention on appeal.

                                    9
 1   judgment in favor of defendants.     Ultimately, the court

 2   resolved the cases in final judgments for defendants,

 3   dismissing the matters on grounds not relevant here.      See In

 4   re Parmalat Sec. Litig., 659 F. Supp. 2d 504 (S.D.N.Y.

 5   2009).

 6       Appellants filed this timely appeal.     This opinion

 7   focuses on the February 25, 2005 and February 16, 2006

 8   orders to determine whether the district courts correctly

 9   determined that those courts had jurisdiction and were not

10   required to abstain pursuant to § 1334(c)(2).     Although

11   Appellants also raise other challenges relating to the

12   summary judgment proceedings in the district court, we need

13   not reach those claims.

14                             II. DISCUSSION

15       Bondi and PCFL challenge the lower federal courts’

16   exercise of jurisdiction on two grounds.     First, Bondi and

17   PCFL contend that removal from Illinois state court was

18   improper because the Illinois actions are based solely on

19   state law claims and are not “related to” any bankruptcy

20   cases in federal court.     See 28 U.S.C. § 1334(b).   Second,

21   Bondi and PCFL contend that, even if removal was proper, the

22   district courts were required to abstain pursuant to 28



                                     10
 1   U.S.C. § 1334(c)(2), which provides that a district court

 2   “shall abstain” from hearing an applicable claim “if an

 3   action is commenced, and can be timely adjudicated, in a

 4   State forum of appropriate jurisdiction.”

 5        We conclude that the cases were properly removed.     As

 6   to the abstention question, the meaning of “timely

 7   adjudicated” is a matter of first impression in this

 8   Circuit.   Our task here then is to set forth a standard for

 9   determining “timely adjudication” for the purposes of 28

10   U.S.C. § 1334(c)(2).   We hold that the district court

11   employed the wrong standard.    We therefore vacate the

12   judgment on the abstention issue and remand to allow the

13   district court to consider, in light of this decision,

14   whether abstention is mandatory.

15   A.   Removal Jurisdiction

16        28 U.S.C. § 1334(b) provides that “the district courts

17   shall have original but not exclusive jurisdiction of all

18   civil proceedings arising under title 11, or arising in or

19   related to cases under title 11.”    28 U.S.C. § 1334(b)

20   (emphasis added).   Grant Thornton removed the present

21   actions from Illinois state court as actions “related to”

22   the 11 U.S.C. § 304 proceedings in the Southern District of



                                    11
 1   New York. 6   PCFL and Bondi press a novel argument: they

 2   contend that removal was improper because § 304 proceedings

 3   are not “cases” within the meaning of the removal statute.

 4   In the alternative, they argue that the state law claims are

 5   not “related to” the § 304 proceedings.     We disagree on both

 6   counts.

 7        1.   A Section 304 Proceeding is a “Case”

 8        One need not look far to find substantial support for

 9   Grant Thornton’s contention that a § 304 proceeding is a

10   “case” within the context of the bankruptcy statute.      The

11   Bankruptcy Code repeatedly refers to § 304 proceedings as

12   “cases” and Section 304 itself is titled “Cases ancillary to

13   foreign proceedings.”    11 U.S.C. § 304 (emphasis added).

14   The Bankruptcy Code also defines “petition” as a “petition

15   filed under section 301, 302, 303, or 304 of this title, as

16   the case may be, commencing a case under this title.”       11

17   U.S.C. § 101(42) (emphasis added).     The statutory language

18   is clear: a § 304 proceeding is a case for the purposes of

19   subject matter jurisdiction under § 1334(b).

20        2.   State Law Claims may be “Related to” a Section 304


          6
            Grant Thornton also removed on the ground of relation to
     the United States bankruptcy of a subsidiary of Parmalat.
     Because of our resolution of the appellees’ principal claim, it
     is unnecessary to reach this argument.

                                    12
 1              Proceeding

 2       For the purposes of removal jurisdiction, a civil

 3   proceeding is “related to” a title 11 case if the action’s

 4   “outcome might have any ‘conceivable effect’ on the bankrupt

 5   estate.”   In re Cuyahoga Equip. Corp., 980 F.2d 110, 114 (2d

 6   Cir. 1992).   In the Illinois state law actions at issue

 7   here, Bondi and PCFL are attempting to recover damages that

 8   they contend are due the respective bankruptcy estates in

 9   Italy and the Grand Caymans.    If either Bondi or PCFL is

10   successful in their claims against Grant Thornton, the funds

11   they recover will benefit the respective bankruptcy estates.

12   See In re Boston Reg’l Med. Ctr., Inc., 410 F.3d 100, 107

13   (1st Cir. 2005) (“[The liquidating entity’s] success or lack

14   of success in securing a share of the trust corpus will

15   directly impact the amount of the liquidating dividend

16   eventually paid to [the debtor’s] creditors.    That is a

17   matter intimately connected with the efficacy of the

18   bankruptcy proceeding.”)   It is not difficult to conclude

19   that the “conceivable effect” test is satisfied.    The

20   present actions are therefore “related to” the § 304

21   proceeding.

22       The fact that a § 304 proceeding, by definition,



                                    13
 1   involves a bankruptcy estate located abroad does not short

 2   circuit the “related to” analysis.     In the context of §

 3   1334(b), there is no need to distinguish between estates

 4   administered principally in foreign forums and those

 5   administered principally in domestic forums.     As the

 6   district court explained below, “[t]here is no reason why a

 7   state law action designed to recover some of those assets

 8   [of the foreign debtor] . . . and thus increase the size of

 9   the estate involved in the Section 304 case is not ‘related

10   to’ the Section 304 Proceeding within the meaning of Section

11   1334.”   Bondi v. Grant Thorton Int’l, 322 B.R. 44, 48

12   (S.D.N.Y. 2005).   So long as the estate at issue in a § 304

13   proceeding, wherever located, may conceivably be affected by

14   the state law actions, those state law actions are “related

15   to” the § 304 case. 7

16        The district court properly exercised removal



          7
            We disagree with another court’s approach in a similar
     case involving state law claims related to the Parmalat
     bankruptcy. In Bondi v. Citigroup, Inc., No. 04 CV 4373 (D.N.J.
     Nov. 18, 2004), the United States District Court for the District
     of New Jersey concluded that although the state law claims were
     related to the Parmalat estate, “related to” jurisdiction was
     nevertheless lacking because the Parmalat estate is located
     abroad. As explained above, we disagree with this conclusion.
     State law claims are “related to” § 304 proceedings so long as
     they satisfy our Court’s “related to” test set forth in Cuyahoga,
     980 F.2d at 114. Nothing more is required.

                                    14
 1   jurisdiction pursuant to 28 U.S.C. § 1334(b).

 2   B.   Section 1334(c)(2) Abstention

 3        The jurisdiction-conferring statute covering bankruptcy

 4   cases and proceedings provides:

 5             Upon timely motion of a party in a
 6             proceeding based upon a State law claim
 7             or State law cause of action, related to
 8             a case under title 11 but not arising
 9             under title 11 or arising in a case under
10             title 11, with respect to which an action
11             could not have been commenced in a court
12             of the United States absent jurisdiction
13             under this section, the district court
14             shall abstain from hearing such
15             proceeding if an action is commenced, and
16             can be timely adjudicated, in a State
17             forum of appropriate jurisdiction.
18
19   28 U.S.C. § 1334(c)(2) (emphasis added).   The district

20   courts determined that abstention pursuant to § 1334(c)(2)

21   was not mandatory here because PCFL and Bondi failed to move

22   for abstention and, in the alternative, PCFL and Bondi

23   failed to show that their actions could be “timely

24   adjudicated” in state court as required by statute.   We

25   review these holdings in turn.

26        1.   Motion for Abstention

27        Bondi filed a motion titled “Plaintiff’s Motion for

28   Remand to State Court” and explicitly argued that the court

29   should abstain pursuant to § 1334(c)(2).   PCFL filed a



                                  15
 1   motion titled “Parmalat Capital Finance Limited’s Motion to

 2   Abstain and Remand.”     In that motion, PCFL likewise

 3   explicitly argued that the court should abstain pursuant to

 4   § 1334(c)(2).    Based on these filings, the district courts

 5   clearly erred in their determinations that PCFL and Bondi

 6   failed to file motions for abstention.

 7       2.   Timely Adjudication

 8            i.     Standard of Review

 9        As explained above, § 1334(c)(2) abstention is

10   mandatory when, among other things, the matter can be

11   “timely adjudicated” in state court.     Whether an action can

12   be timely adjudicated in state court is a mixed question of

13   law and fact.    The factual inquiry focuses on how quickly a

14   case can be adjudicated in state court; the legal inquiry

15   asks if this pace is sufficiently swift.     Given this mixed

16   question of law and fact, we review the court’s

17   determination de novo.     See McCarthy v. Dun & Bradstreet

18   Corp., 482 F.3d 184, 204 (2d Cir. 2007).

19            ii.    What Constitutes ‘Timely’

20       Four factors come into play in evaluating § 1334(c)(2)

21   timeliness: (1) the backlog of the state court’s calendar

22   relative to the federal court’s calendar; (2) the complexity



                                     16
 1   of the issues presented and the respective expertise of each

 2   forum; (3) the status of the title 11 bankruptcy proceeding

 3   to which the state law claims are related; and (4) whether

 4   the state court proceeding would prolong the administration

 5   or liquidation of the estate.        See In re Georgou, 157 B.R.

 6   847, 851 (N.D. Ill. 1993).

 7       The first two factors require a court to consider

 8   timely adjudication in light of the particular factual and

 9   procedural circumstances presented in the two courts being

10   compared.   Timeliness cannot reasonably be defined as a

11   fixed period of time.   Instead, timeliness is a case- and

12   situation-specific inquiry that requires a comparison of the

13   time in which the respective state and federal forums can

14   reasonably be expected to adjudicate the matter.        The

15   inquiry does not turn exclusively on whether an action could

16   be adjudicated most quickly in state court.        It is, however,

17   informed by the comparative speeds of adjudication in the

18   federal and state forums.    A court should therefore consider

19   the backlog of the state court’s calendar (if any) relative

20   to the federal court’s calendar.        Where the legal issues in

21   a case are especially complex, the forum with the most

22   expertise in the relevant areas of law may well be expected



                                     17
 1   to adjudicate the matter in a more timely fashion relative

 2   to the other forum. 8   On the other hand, when the facts in a

 3   case are especially complex, the forum with greater

 4   familiarity with the record may likewise be expected to

 5   adjudicate the matter more quickly.     Ultimately, the

 6   relative adjudication times are not solely determinative,

 7   but do shed light on whether the state court can timely

 8   adjudicate the matter.

 9        As to the third factor — the status of the “related to”

10   title 11 bankruptcy proceeding — a court must consider

11   whether the litigants in a state proceeding need the state

12   law claims to be quickly resolved as a result of the status

13   of the ongoing title 11 bankruptcy proceeding.      For

14   instance, a trustee in a chapter 11 reorganization may

15   require expeditious resolution of the state law claims in

16   order to determine what resources are available to fund the

17   chapter 11 reorganization.    For this reason, courts have




          8
            The district court may find that this factor particularly
     favors abstention here because one of the key issues in this case
     – the defense of in pari delicto – is a matter of Illinois state
     law and there is some doubt as to the nature and reach of the
     defense. Notably, Illinois does not permit our Court to certify
     questions of Illinois state law to the Illinois Supreme Court.
     Ill. Sup. Ct. R. 20 (permitting certification only from the
     Supreme Court of the United States and the United States Court of
     Appeals for the Seventh Circuit).

                                    18
 1   found that what might be timely in the Chapter 7 context is

 2   not necessarily timely in Chapter 11 cases where time is of

 3   the essence.     See In re Leco Enters., 144 B.R. 244, 251

 4   (S.D.N.Y. 1992).     In the Chapter 7 context, some courts have

 5   even suggested that “in deciding whether a matter may be

 6   timely adjudicated, perhaps the single most important factor

 7   is the nature of the underlying chapter proceeding.”      Id.

 8   (citation omitted). 9

 9        Finally, the fourth factor asks whether the state court

10   proceeding would prolong the administration or liquidation

11   of the estate.     A matter cannot be timely adjudicated in

12   state court if abstention and remand of the state law claims

13   will unduly prolong the administration of the estate.        Thus,

14   in a case like the WorldCom bankruptcy, “the close

15   connections between the defendants in [the] action and the

16   debtor, and the complexity of [the] litigation” may suggest

17   that “remanding to the state court could slow the pace of

18   litigation dramatically” by leading to duplicative motions



          9
           Because a court overseeing a § 304 case is not tasked with
     overseeing reorganization or liquidation of the estate, we see no
     reason why, as a result of the § 304 proceeding, the litigants in
     a state law proceeding would require swift resolution of the
     state law claims. A court may, however, find that a particular
     § 304 proceeding does create a need for urgency among the
     litigants in the state law proceeding.

                                     19
 1   practice, repetitious discovery, and parallel adjudication

 2   of common issues.    In re Worldcom, Inc. Sec. Litig., 293

 3   B.R. 308, 331 (S.D.N.Y. 2003).

 4        In the present case, the district courts emphasized

 5   that remand would not promote timely adjudication because

 6   this case is a “complex bankruptcy-cum-securities fraud

 7   multidistrict litigation[]” such that “the importance of

 8   coordinating this proceeding with the international

 9   bankruptcy and the Securities Fraud Action outweighs any

10   interest in comity with Illinois courts or Illinois law.”

11   We disagree with this approach.     The impact of the state

12   court proceedings on the securities class action itself,

13   absent evidence of prolonging the administration or

14   liquidation of the foreign estates, is immaterial to the

15   question of timely adjudication. 10   Unlike Worldcom, the

16   district court here is not charged with administration of a

17   bankruptcy estate.    As a result, the possibility that remand

18   of the state court claims will slow down the § 304


          10
            It bears noting that Bondi and the Joint Official
     Liquidators, appointed by the Grand Court of the Cayman Islands
     and charged with overseeing PCFL, selected Illinois state court
     as the forum in which to prosecute their claims against Grant
     Thornton. Presumably, Bondi and the Joint Official Liquidators
     were well versed in the timeliness concerns of their respective
     foreign bankruptcy proceedings when they selected the state
     forum.

                                    20
 1   proceeding is insufficient to show that state court

 2   adjudication would be untimely.     The inquiry’s proper focus

 3   is on the timely administration of the estate, not the § 304

 4   proceeding.

 5       Contrary to the district courts’ approach, we further

 6   conclude that Grant Thornton, as the party opposing remand,

 7   bears the burden to show that these matters cannot be timely

 8   adjudicated in state court.    Contra In re Worldcom, 293 B.R.

 9   at 331 (placing the burden on the party moving for

10   abstention).   “Although several bankruptcy courts have

11   required the movant affirmatively to show that the matter

12   can be timely adjudicated in the state court, this would

13   seem to reverse the usual burden implicit in the general

14   rule that the party seeking to litigate in the federal forum

15   must first establish that right.”     Acolyte Elec. Corp. v.

16   City of New York, 69 B.R. 155, 180 (Bankr. E.D.N.Y. 1986)

17   (citations omitted).   Placing the burden on the party

18   opposing remand is consistent with the mandatory nature of

19   abstention under § 1334(c)(2) as well as principles of

20   comity, which presume that a state court will operate

21   efficiently and effectively.    This presumption is borne out

22   of “a proper respect for state functions, a recognition of



                                    21
 1   the fact that the entire country is made up of a Union of

 2   separate state governments, and a continuance of the belief

 3   that the National Government will fare best if the States

 4   and their institutions are left free to perform their

 5   separate functions in their separate ways.”    Younger v.

 6   Harris, 401 U.S. 37, 44 (1971).

 7       c.   Remand to Assess Timely Adjudication

 8        Nearly six years has passed since Appellants sought

 9   federal abstention in this matter. The record tells us

10   nothing of the current status of the domestic and foreign

11   bankruptcy proceedings.   Similarly, the record is silent as

12   to whether remanding these cases to Illinois state court

13   would prolong the administration of the foreign estates.

14   Accordingly, we cannot resolve the issue of “timely

15   adjudication” based on the record before us.

16       On remand, the district court should determine whether

17   these cases can be timely adjudicated in Illinois state

18   court at the present time.   Although Bondi preserved for

19   appeal the question of whether this case could have been

20   timely adjudicated in Illinois state court at the time the

21   district court declined to abstain in February 2005 (and

22   indeed sought to appeal the issue at that time), much may



                                   22
 1   have changed in the intervening years.   It would be futile

 2   for the district court on remand to consider only the facts

 3   known to it at the time of its initial order.   Accordingly,

 4   the district court should allow the parties to supplement

 5   the record with current information to allow it to assess

 6   timely adjudication in the present tense.   See generally

 7   Stoe v. Flaherty, 2006 WL 2927272 (W.D. Pa. Oct. 11, 2006)

 8   (considering “timely adjudication” following a remand order

 9   from the Third Circuit and noting that prior resolution of

10   the case on the merits in federal court was not dispositive

11   in the timely adjudication analysis).

12       A mandate shall issue remanding these cases to the

13   district court to hold such proceedings as are necessary to

14   assess whether § 1334(c)(2) abstention is mandatory.    If the

15   district court elects to abstain pursuant to § 1334(c)(2)

16   and remands these cases to the appropriate Illinois state

17   court, we will have no jurisdiction over an appeal.    See 28

18   U.S.C. § 1334(d); In re Cathedral of the Incarnation, 90

19   F.3d 28, 32-34 (2d Cir. 1996) (holding that a decision to

20   remand based on mandatory abstention is not reviewable on

21   appeal).   If, however, the district court determines that

22   abstention is not mandatory, any party to this appeal may



                                   23
 1   restore jurisdiction to this court within 30 days by letter

 2   to the Clerk’s Office seeking review, without need for a new

 3   notice of appeal.    See United States v. Jacobson, 15 F.3d

 4   19, 22 (2d Cir. 1994).    The Clerk’s Office will then set a

 5   briefing schedule and refer the appeal to this panel for

 6   disposition.

 7                            III. CONCLUSION

 8       The Southern District of New York’s February 25, 2005

 9   order denying Bondi’s motion for remand and the Northern

10   District of Illinois’s February 16, 2006 order denying

11   PCFL’s motion to abstain and remand are hereby AFFIRMED in

12   part and VACATED and REMANDED in part.     We affirm the

13   district courts’s determinations that these cases were

14   properly removed under 28 U.S.C. § 1334(b).     We VACATE the

15   district courts’s abstention holdings and REMAND to the

16   Southern District of New York for proceedings consistent

17   with this Opinion.




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