Korean Claimants v. Debtor’s Representatives (In re Settlement Facility Dow Corning Trust)

(6th Cir. Nov. 23, 2016)

The Sixth Circuit affirms the 2015 consent order specifying the manner in which certain provisions of the confirmed Chapter 11 plan would apply to a class of claim holders. The Korean Claimants objected, arguing that the district court lacked authority to enter the consent order and that the consent order was an impermissible modification of the distribution agreement. The court holds that the court had the requisite authority to enter the consent order and it merely clarified the distribution agreement rather than modified it. Opinion below.

Judge: Kethledge

Attorney for Claimants: Yeon Ho Kim

Attorneys for Debtor Entities: Deborah E. Greenspan, Jeffrey S. Trachtman, Ernest H Hornsby, Dianna Pendleton-Dominguez

2016-11-23-in-re-dow-corning

Author: Matt Lindblom

Sutherland v. DCC Litigation Facility, Inc. (In re Dow Corning Corporation)

(Sixth Circuit Feb. 20, 2015)

The Sixth Circuit reverses the district court’s dismissal of the plaintiff’s claims based on a Michigan statute of limitations. The plaintiff’s claims were originally filed in federal court in North Carolina, and was then transferred to an Alabama federal court to join a multidistrict litigation panel (Dow Corning silicone breast implant litigation). The plaintiff opted out of the class settlement, and her claims were then transferred to Michigan when Dow Corning filed bankruptcy there, pursuant to 28 U.S.C. § 157(b)(5). When her claims were eventually set for trial, the defendant filed a motion to dismiss the claims under Michigan’s statute of limitations, because the plaintiff had failed to file the original case within three years of her surgery. The district court granted that motion and dismissed the claims. The Sixth Circuit holds that the venue transfer should not alter which state law applies, and North Carolina’s statute of limitations arguably was satisfied. While an issue of first impression in the Sixth Circuit, the court relies on a Second Circuit opinion with a similar holding—a transfer of venue should not change the applicable state law, whether the transfer is of a case filed pursuant to diversity jurisdiction or resting on “related to” bankruptcy jurisdiction. Opinion below.

2015-02-20 – sutherland v dcc litigation facility

Author: Matt Lindblom