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

2 1 2 3 Before: 4 CABRANES, WESLEY, Circuit Judges, and KOELTL,* District Judge. 5 6 Plaintiff-Appellant Parmalat Capital Finance Limited 7 and Plaintiff-Counter-Defendant-Third-Party-Defendant- 8 Appellant Dr. Enrico Bondi (collectively, “Appellants”) 9 commenced these actions to recover damages that they contend 10 are owed to them pursuant to Illinois state law. In this 11 appeal, Appellants challenge orders of the United States 12 District Court for the Southern District of New York 13 (Kaplan, J.) and the Northern District of Illinois 14 (Castillo, J.) denying Appellants’ motions for remand and 15 abstention, and granting summary judgment to 16 Defendants-Third-Party-Plaintiffs-Counter-Claimants- 17 Appellees Grant Thornton International and Grant Thornton 18 LLP. We hold that the district courts had proper removal 19 jurisdiction over these actions. As a matter of first 20 impression in our Circuit, we set forth the standard for 21 determining “timely adjudication” for the purposes of 28

(c)(2) abstention. We then VACATE and REMAND 23 to allow the district court to consider, in light of this 24 Opinion, whether abstention is mandatory in the 25 circumstances presented here. 26 27 AFFIRMED in part and VACATED and REMANDED in part. 28 29 30 31 KATHLEEN M. SULLIVAN, Quinn Emanuel Urquhart & 32 Sullivan, LLP, New York, NY (Peter E. 33 Calamari, Terry L. Wit, Sanford I. Weisburst, 34 on the brief), for Plaintiff-Counter- 35 Defendant-Third-Party Defendant-Appellant 36 Bondi. 37 38 J. GREGORY TAYLOR, Diamond McCarthy LLP, New York, NY 39 (Allan B. Diamond, Richard I. Janvey, J.

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

3 1 Benjamin King, on the brief), for Plaintiff- 2 Appellant Parmalat Capital Finance Limited. 3 4 LINDA T. COBERLY, Winston & Strawn LLP, Chicago, IL 5 (Bruce R. Braun, William P. Ferranti, on the 6 brief), for Defendant-Third-Party-Plaintiff- 7 Counter-Claimant-Appellee Grant Thornton LLP. 8 9 JOSEPH B. TOMPKINS JR., Sidley Austin LLP, 10 Washington, DC (Alan C. Geolot, Mark P. 11 Guerrera, Robert D. Keeling, A. Robert 12 Peitrzak, Daniel A. McLaughlin, on the brief), 13 for Defendants-Appellees Bank of America et 14 al. 15 16 JAMES L. BERNARD, Strook & Strook & Lavan LLP, New 17 York, NY (Quinlan D. Murphy, Katherine I. 18 Puzone, David M. Cheifetz, on the brief), for 19 Defendant-Third-Party-Plaintiff-Counter- 20 Claimant-Appellees Grant Thornton 21 International, Inc. and Grant Thornton 22 International Ltd. 23 24 PARTHA P. CHATTORAJ, Markowitz & Chattoraj LLP, New 25 York, NY for Amicus Curiae Guido Alpa. 26 27 GEORGE M. PAVIA, Pavia & Harcourt LLP, New York, NY 28 for Amicus Curiae the Government of the 29 Republic of Italy. 30 31 32 33 WESLEY, Circuit Judge:

34 The questions presented are (1) whether the district

35 court erred in exercising jurisdiction over plaintiffs’

36 claims, pursuant to

(b); and (2) whether the

37 district court properly declined to abstain from exercising

38 that jurisdiction, pursuant to

(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 court1 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

(enacting Chapter 15 of the Bankruptcy Code and repealing

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

(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

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

(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

(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

(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

(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

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

(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.,

(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

(b). Second,

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

22 district courts were required to abstain pursuant to 28

(c)(2), which provides that a district court

10 1 “shall abstain” from hearing an applicable claim “if an

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

3 State forum of appropriate jurisdiction.”

4 We conclude that the cases were properly removed. As

5 to the abstention question, the meaning of “timely

6 adjudicated” is a matter of first impression in this

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

8 determining “timely adjudication” for the purposes of 28

(c)(2). We hold that the district court

10 employed the wrong standard. We therefore vacate the

11 judgment on the abstention issue and remand to allow the

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

13 whether abstention is mandatory.

14 A. Removal Jurisdiction

15

(b) provides that “the district courts

16 shall have original but not exclusive jurisdiction of all

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

18 related to cases under title 11.”

(b)

19 (emphasis added). Grant Thornton removed the present

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

21 the

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.”

(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

(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.,

, 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.,

, 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,

23 involves a bankruptcy estate located abroad does not short

13 1 circuit the “related to” analysis. In the context of §

2 1334(b), there is no need to distinguish between estates

3 administered principally in foreign forums and those

4 administered principally in domestic forums. As the

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

6 state law action designed to recover some of those assets

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

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

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

10 1334.” Bondi v. Grant Thorton Int’l,

, 48

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

12 proceeding, wherever located, may conceivably be affected by

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

14 to” the § 304 case.7

15 The district court properly exercised removal

16 jurisdiction pursuant to

(b).

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

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 The jurisdiction-conferring statute covering bankruptcy

2 cases and proceedings provides:

3 Upon timely motion of a party in a 4 proceeding based upon a State law claim 5 or State law cause of action, related to 6 a case under title 11 but not arising 7 under title 11 or arising in a case under 8 title 11, with respect to which an action 9 could not have been commenced in a court 10 of the United States absent jurisdiction 11 under this section, the district court 12 shall abstain from hearing such 13 proceeding if an action is commenced, and 14 can be timely adjudicated, in a State 15 forum of appropriate jurisdiction. 16 17

(c)(2) (emphasis added). The district

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

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

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

21 failed to show that their actions could be “timely

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

23 review these holdings in turn.

24 1. Motion for Abstention

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

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

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

28 motion titled “Parmalat Capital Finance Limited’s Motion to

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

30 explicitly argued that the court should abstain pursuant to

15 1 § 1334(c)(2). Based on these filings, the district courts

2 clearly erred in their determinations that PCFL and Bondi

3 failed to file motions for abstention.

4 2. Timely Adjudication

5 i. Standard of Review

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

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

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

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

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

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

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

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

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

15 Corp.,

(2d Cir. 2007).

16 ii. What Constitutes ‘Timely’

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

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

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

20 of the issues presented and the respective expertise of each

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

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

23 the state court proceeding would prolong the administration

16 1 or liquidation of the estate. See In re Georgou,

(N.D. Ill. 1993).

3 The first two factors require a court to consider

4 timely adjudication in light of the particular factual and

5 procedural circumstances presented in the two courts being

6 compared. Timeliness cannot reasonably be defined as a

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

8 situation-specific inquiry that requires a comparison of the

9 time in which the respective state and federal forums can

10 reasonably be expected to adjudicate the matter. The

11 inquiry does not turn exclusively on whether an action could

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

13 informed by the comparative speeds of adjudication in the

14 federal and state forums. A court should therefore consider

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

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

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

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

19 to adjudicate the matter in a more timely fashion relative

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

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

17 1 case are especially complex, the forum with greater

2 familiarity with the record may likewise be expected to

3 adjudicate the matter more quickly. Ultimately, the

4 relative adjudication times are not solely determinative,

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

6 adjudicate the matter.

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

8 title 11 bankruptcy proceeding — a court must consider

9 whether the litigants in a state proceeding need the state

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

11 of the ongoing title 11 bankruptcy proceeding. For

12 instance, a trustee in a chapter 11 reorganization may

13 require expeditious resolution of the state law claims in

14 order to determine what resources are available to fund the

15 chapter 11 reorganization. For this reason, courts have

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

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

18 the essence. See In re Leco Enters.,

, 251

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

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 even suggested that “in deciding whether a matter may be

2 timely adjudicated, perhaps the single most important factor

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

4 (citation omitted).9

5 Finally, the fourth factor asks whether the state court

6 proceeding would prolong the administration or liquidation

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

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

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

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

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

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

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

14 litigation dramatically” by leading to duplicative motions

15 practice, repetitious discovery, and parallel adjudication

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

(S.D.N.Y. 2003).

18 In the present case, the district courts emphasized

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 that remand would not promote timely adjudication because

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

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

4 coordinating this proceeding with the international

5 bankruptcy and the Securities Fraud Action outweighs any

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

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

8 court proceedings on the securities class action itself,

9 absent evidence of prolonging the administration or

10 liquidation of the foreign estates, is immaterial to the

11 question of timely adjudication.10 Unlike Worldcom, the

12 district court here is not charged with administration of a

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

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

15 proceeding is insufficient to show that state court

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

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

18 proceeding.

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 c. Remand to Assess Timely Adjudication

2 Nearly six years has passed since Appellants sought

3 federal abstention in this matter. The record tells us

4 nothing of the current status of the domestic and foreign

5 bankruptcy proceedings. Similarly, the record is silent as

6 to whether remanding these cases to Illinois state court

7 would prolong the administration of the foreign estates.

8 Accordingly, we cannot resolve the issue of “timely

9 adjudication” based on the record before us.

10 On remand, the district court should determine whether

11 these cases can be timely adjudicated in Illinois state

12 court at the present time. Although Bondi preserved for

13 appeal the question of whether this case could have been

14 timely adjudicated in Illinois state court at the time the

15 district court declined to abstain in February 2005 (and

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

17 have changed in the intervening years. It would be futile

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

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

20 the district court should allow the parties to supplement

21 the record with current information to allow it to assess

22 timely adjudication in the present tense. See generally

23 Stoe v. Flaherty,

(W.D. Pa. Oct. 11, 2006)

21 1 (considering “timely adjudication” following a remand order

2 from the Third Circuit and noting that prior resolution of

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

4 in the timely adjudication analysis).

5 On remand, the district court should also consider

6 which party should bear the burden to show that these

7 matters cannot be timely adjudicated in state court.

8 Although many courts have required the movant to

9 affirmatively show that a matter can be timely adjudicated

10 in state court, few cases have analyzed the question in

11 detail. See, e.g., Stoe v. Flaherty,

, 219 n.5

12 (3d Cir. 2006); but see XL Sports, Ltd. v. Lawler,

App’x 13, 20 (6th Cir. 2002) (“Nothing in the record

14 indicates that the Tennessee courts would not adjudicate the

15 claim in a timely fashion . . . .”). Typically, a party

16 seeking relief bears the burden to show he is entitled to

17 that relief. See, e.g., In re the City of New York, 607

(2d Cir. 2010). Placing the burden on the

19 party opposing remand may nevertheless be inconsistent with

20 the mandatory nature of abstention under § 1334(c)(2) as

21 well as the principles of comity, which presume that a state

22 court will operate efficiently and effectively. See Younger

23 v. Harris,

(1971). Accordingly, when

22 1 examining this issue, the district court should consider

2 these significant competing concerns.

3 A mandate shall issue forthwith remanding these cases

4 to the district court to hold such proceedings as are

5 necessary to assess whether § 1334(c)(2) abstention is

6 mandatory. If the district court elects to abstain pursuant

7 to § 1334(c)(2) and remands these cases to the appropriate

8 Illinois state court, we will have no jurisdiction over an

9 appeal. See

(d); In re Cathedral of the

10 Incarnation,

, 32-34 (2d Cir. 1996) (holding that

11 a decision to remand based on mandatory abstention is not

12 reviewable on appeal). If, however, the district court

13 determines that abstention is not mandatory, any party to

14 this appeal may restore jurisdiction to this court within 30

15 days by letter to the Clerk’s Office seeking review, without

16 need for a new notice of appeal. See United States v.

17 Jacobson,

(2d Cir. 1994). The Clerk’s Office

18 will then set a briefing schedule and refer the appeal to

19 this panel for disposition.

20 III. CONCLUSION

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

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

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

23 1 PCFL’s motion to abstain and remand are hereby AFFIRMED in

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

3 district courts’s determinations that these cases were

4 properly removed under

(b). We VACATE the

5 district courts’s abstention holdings and REMAND to the

6 Southern District of New York for proceedings consistent

7 with this Opinion. The mandate shall issue forthwith.

24