By Tom Hals
WILMINGTON, Del, March 7 (Reuters) – Bankrupt telecoms
equipment giant Nortel Networks once boasted of a global
operation, but now its former world-wide units are squaring off
over its last remaining asset: $9 billion in cash.
Two judges, one in Wilmington, Delaware, and the other in
Toronto, will jointly hear arguments on Thursday that will
ultimately decide how, and when, to carve up that money.
The outcome will determine how much will be available for
tens of thousands of retirees, governments and hedge funds
investors.
“The issues which remain for decision are imposing,” U.S.
Bankruptcy Court Judge Kevin Gross of Delaware wrote on Feb. 14
in an order scheduling the hearing.
The hearing was preceded in January by a third failed
attempt to resolve the dispute through mediation. Warren
Winkler, the chief justice of Ontario who oversaw those talks,
said further attempts at mediation were no longer worthwhile.
He had warned before the final mediation that failure to
reach an agreement could tie the disputes up in the courts for
years, burning through Nortel’s cash to pay the army of lawyers
and advisers working on the case.
The last time the two courts heard arguments on the issue,
78 lawyers appeared, according to the court transcript.
The two judges will hear arguments on who should determine
how to allocate Nortel’s cash: the Delaware court, the Canadian
court or an arbitrator.
“A lot of what you see is the jostling for home court
advantage, literally and figuratively,” said John Penn, a
bankruptcy attorney with Haynes and Boone in Fort Worth, Texas.
Only after that issue is resolved will the courts be able to
tackle the thorny problem of how to carve up the money.
Gross and Ontario Superior Court Justice Geoffrey Morawetz
may also consider a timeframe for the proceedings.
The complex disputes stem from Nortel’s former might as a
global telecom empire with a web of intercompany finances and a
workforce that once stood at 93,000.
Since seeking protection from creditors in courts around the
world in 2009, Nortel’s assets, including a $4.5 billion patent
portfolio, were sold as whole global businesses, generating most
of its $9 billion.
However, the question of how to divide that cash among the
various Nortel insolvency and bankruptcy proceedings was never
resolved.
Until each Nortel unit knows how much money it has, it is
nearly impossible for those businesses to negotiate and settle
the claims of their creditors. The matter is further complicated
because some creditors are owed money by several Nortel
businesses, and Nortel’s businesses have also brought claims
against one another.
Nortel’s U.S. estate and its creditors want U.S. and
Canadian courts to decide how to divide up the cash pile. They
also want each party to lay out publicly their theory for
dividing the cash.
“No longer should recalcitrant parties be permitted to hide
their extreme and indefensible positions from public view and
direct scrutiny,” an ad hoc group of holders of Nortel bonds
wrote in a court filing. They said private mediation failed and
it was time to bring the dispute “out of the confines of
conference rooms and into the light of the public courtroom.”
Nortel’s former businesses in Europe tell a different story.
They argue that joint U.S. and Canadian court hearings will
eventually lead to judicial “chaos,” with conflicting rulings
and no appeals court to bind both judges.
The European businesses want a three-member arbitration
panel appointed by the Nortel units in the United States, Canada
and Europe.
While the European businesses see arbitration as the only
way to avoid a costly drawn-out court fight, one bankruptcy
expert doubted the judges would go that route.
“I just think the contentious nature of this requires a
judge to weigh in,” said Tom Salerno, a bankruptcy attorney with
Squire Sanders & Dempsey in Phoenix.
Regardless of who decides how to divide the money, other
issues need to be tackled. The European businesses have billions
of dollars of claims against the North American units. The
Canadian court must resolve if bondholders are entitled to
interest on their securities and whether British pensioners can
claim some of the money that will be available for Canada’s
creditors.
The courts also face one issue beyond their control: the
possibility that Thursday’s hearing could be postponed by a late
winter storm that is bearing down on Wilmington.
