16-11895-jlg Doc 1143 Filed 05/29/18 Entered 05/29/18 10

May 29, 2018 VIA ECF The Hon. James L. Garrity, Jr. United States Bankruptcy Court Southern District of New York One Bowling Green New York, NY 10004-1408 Re: In re: China Fishery Group Limited (Cayman) 1:16-BK-11895

In re: CFG Peru Investments Pte. Ltd. (Singapore) 1:16-BK-11914 Dear Judge Garrity: We represent the Hongkong and Shanghai Banking Corporation Limited (“HSBC-HK”) in connection with the above-referenced matters. We write in response to the May 24, 2018 letter filed by special litigation counsel for William A. Brandt, Jr., chapter 11 trustee (the “Trustee”) for CFG Peru Investments Pte. Ltd. (Singapore). As a threshold matter, counsel for HSBC-HK is available on the following dates should the Court wish to schedule a conference to discuss these issues and the stay of Rule 2004 discovery ordered by the Court at the September 28, 2017 omnibus hearing (the “Stay”): May 30 (any time); May 31 (morning only); June 4 (any time), and any day from June 20 onward, other than June 22 and June 27. HSBC-HK disagrees with the Trustee’s unfounded assertion that the Stay “automatically terminated” in December 2017. Indeed, HSBC-HK previously communicated this view to the Trustee on January 12, 2018, and the Trustee neither disputed HSBC-HK’s position nor sought a conference with the Court. (See January 12, 2018 email from S. Gant to J. Tecce (Ex. 1)). If the Trustee believed that the Stay expired in December 2017, he should have raised this issue with the Court at some point within the last six months. HSBC-HK has already advised the Trustee that the appellate process has not ended: this morning, HSBC-HK filed with the United States Court of Appeals for the Second Circuit a request for reconsideration or rehearing en banc of the May 23, 2018 Order of that Court. An as-filed copy of the application to the Second Circuit is attached hereto (Ex. 2). Significant and fundamental issues involving the law of personal jurisdiction and due process are implicated by HSBC-HK’s appeal, and the appellate process should be allowed to conclude before HSBC-HK is forced to submit to the burdens of producing discovery in a jurisdiction with which the Trustee has conceded HSBC-HK has had no contacts other than filing its proofs of

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claim. (See Omnibus Reply of William A. Brandt, Jr., Chapter 11 Trustee for CFG Peru Investments Pte. Ltd. (Singapore), In Further Support of Motion, Pursuant to 11 U.S.C. §§ 105(a) and 1106(a)(3), Fed. R. Bankr. P. 2004 and 9016, and L. Bankr. R. 2004-1, For Order Authorizing Issuance Of Subpoenas To Hongkong Shanghai Banking Corporation Limited Directing Production Of Documents and Examination of Witnesses and Granting Related Relief [ECF No. 375] at 19-26). At the same time, the Trustee has spent almost two years managing his estate and conducting the sales process without the documents requested in the Rule 2004 Subpoena, and there is no urgency for such documents to be produced now. Finally, the proposed “deadlines” in the Trustee’s letter are arbitrary and unconnected to reality. To this point, the Court has stayed any discovery against HSBC-HK, which obviously relieved HSBC-HK from having to produce any discovery to the Trustee during the pendency of the Stay. If the Court chooses to lift the Stay (and for the reasons set forth above, in HSBC-HK’s prior briefing and at the upcoming hearing, the Court should not), HSBC-HK will need to address significant discovery issues with the Trustee, such as the negotiation of a protective order and a resolution of certain Hong Kong data privacy issues. HSBC-HK has also lodged objections and responses to the Trustee’s requests, and those must be discussed as well. If the Trustee wanted to receive documents by June 1, he should have approached the Court months ago, when he claims the Stay “automatically terminated.” We are available to address these issues at the Court’s convenience.

Sincerely,

/s/ Scott E. Gant Boies Schiller Flexner LLP /s/ Elliot Moskowitz Davis Polk & Wardwell LLP Counsel to the Hongkong and Shanghai Banking Corp. Ltd.

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Exhibit 1

16-11895-jlg Doc 1143-1 Filed 05/29/18 Entered 05/29/18 10:21:47 Exhibit 1 Pg 1 of 3

From: Scott Gant Sent: Friday, January 12, 2018 2:07 PM To: 'James Tecce'; William Pugh Cc: Jordan Harap; Moskowitz, Elliot Subject: RE: In re CFG Peru Investments Pte. Ltd. (Singapore), Case No. 16-11914 (JLG) (Bankr. S.D.N.Y.)

Jamie,

As your letter acknowledges, HSBC-HK filed a Notice of Appeal of the District Court's December 29, 2017 Order and Opinion. We do not share your view that "the Bankruptcy Court and District Court decisions are interlocutory," but obviously you can make whatever arguments you want to the Second Circuit in your response brief.

Regarding your assertion the stay of the Rule 2004 Order "expired" following the District Court's order, the transcript of the September 28, 2017 hearing makes clear the stay remains in effect pending further consideration by the Bankruptcy Court. See Sept. 28, 2017 Hr'g Tr. at 58:12-15 ("I think it makes sense to allow the District Court to go through and complete her review of the matter before the Court. I have no doubt that the District Court will act quickly on it and then we can see where things stand."). As you know, we promptly advised Judge Garrity of our Notice of Appeal by letter. We suggest that we jointly request the stay be addressed with the Court at the January 17, 2018 omnibus hearing. Please let us know if you would like to do so.

If and when Judge Garrity lifts the stay, we will discuss with you all issues relating to the subpoena including but not limited to service, a protective order and HSBC-HK’s objections.

Scott

From: James Tecce [mailto:[email protected]] Sent: Friday, January 12, 2018 1:31 PM To: William Pugh; Scott Gant; Moskowitz, Elliot Cc: Jordan Harap; James Tecce Subject: RE: In re CFG Peru Investments Pte. Ltd. (Singapore), Case No. 16-11914 (JLG) (Bankr. S.D.N.Y.)

Scott and Elliot.


Following up on this, can you please let us know if you’re going to respond by 3 pm today? Also, to the extent HSBC is going to continue with its Second Circuit Appeal, in your response can please confirm that HSBC will submit an opposition to a motion to dismiss the appeal filed by the Trustee for lack of jurisdiction? Thank you. JAMES C. TECCE Partner - Bankruptcy & Restructuring Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7199 Direct 917-612-9292 Mobile [email protected] www.quinnemanuel.com

From: William Pugh Sent: Wednesday, January 10, 2018 12:56 PM To: Scott Gant ([email protected]) <[email protected]>; Moskowitz, Elliot <[email protected]> Cc: James Tecce <[email protected]> Subject: In re CFG Peru Investments Pte. Ltd. (Singapore), Case No. 16-11914 (JLG) (Bankr. S.D.N.Y.) Scott/Elliot, Please see the attached correspondence. Best regards, Bill William Pugh Associate Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7153 Direct 212-849-7000 Main Office Number 212-849-7100 FAX [email protected] www.quinnemanuel.com

NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that, among other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please immediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1]


Exhibit 2


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): Caption [use short title]

Motion for:

Set forth below precise, complete statement of relief sought:

MOVING PARTY: OPPOSING PARTY:

��Plaintiff ��Defendant��Appellant/Petitioner ��Appellee/Respondent

MOVING ATTORNEY: OPPOSING ATTORNEY: [name of attorney, with firm, address, phone number and e-mail]

Court-Judge/Agency appealed from:

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? ��Yes ��No��Yes ��No (explain): Has this relief been previously sought in this Court? ��Yes ��No Requested return date and explanation of emergency:

Opposing counsel’s position on motion:��Unopposed � Opposed � Don’t Know

Does opposing counsel intend to file a response:� Yes � No � Don’t Know

Is oral argument on motion requested? ��Yes ��No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set? ��Yes ��No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:

___________________________________Date: ___________________ Service by: ��CM/ECF ��Other [Attach proof of service]

Form T-1080 (rev. 12-13)

N/A pursuant to L.R. 40.2

18-5Panel Reconsideration or

Reconsideration En Banc.

Grant appellant's motion for panel reconsideration

In re: China Fishery Group Limited

or reconsideration en banc of the Court'sMay 21, 2018 order, pursuant to L.R. 40.2.

The Hongkong and Shanghai Banking Corporation Limited William A. Brandt, Jr., Ch. 11 Trustee

✔

Scott E. Gant James C. Tecce

Boies Schiller Flexner LLP

1401 New York Avenue, NW

Washington, DC 20005

Quinn Emanuel Urquhart & Sullivan LLP

51 Madison Ave. Fl. 22

New York, NY 10010

Southern District of New York / Valerie E. Caproni

✔

✔

✔

✔

/s/ Scott E. Gant 5/29/2018

Case 18-5, Document 42, 05/29/2018, 2312309, Page1 of 2016-11895-jlg Doc 1143-2 Filed 05/29/18 Entered 05/29/18 10:21:47 Exhibit 2 Pg 2 of 21

18-5 _____________________

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

______________________

In Re: China Fishery Group Limited ________________________

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

Appellant,

v.

WILLIAM A. BRANDT, JR., CHAPTER 11 TRUSTEE FOR CFG PERU INVESTMENTS PTE. LTD. (SINGAPORE),

Appellee. ________________________

On Appeal From The United States District Court

For the Southern District of New York, No. 17-CV-6672 (VEC) Honorable Valerie E. Caproni Presiding

APPELLANT’S MOTION FOR PANEL RECONSIDERATION

OR RECONSIDERATION EN BANC

DONALD S. BERNSTEIN ELLIOT MOSKOWITZ Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000

SCOTT E. GANT Boies Schiller Flexner LLP 1401 New York Avenue, NW Washington, DC 20005 (202) 237-2727

DAMIEN J. MARSHALL Boies Schiller Flexner LLP 575 Lexington Avenue New York, NY 10022 (212) 446-2300

Attorneys for Appellant


i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1

PROCEDURAL HISTORY ....................................................................................... 3

ARGUMENT ............................................................................................................. 6

I. The Bankruptcy Court’s Order Was Final, and the Panel’s Order Did Not Indicate Otherwise ........................................... 7

II. The Panel Erred in Its Application of Penn Traffic Because the District Court’s Disposition Did Not Independently Render the Matter Non-Appealable .............................. 9

CONCLUSION ........................................................................................................ 10

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS ..................................................................................... 12

CERTIFICATE OF SERVICE ................................................................................ 13


ii

TABLE OF AUTHORITIES

CASES

Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019 (2d Cir. 1988) ................................................................................. 1

Bullard v. Blue Hills Bank, 135 S. Ct. 1686 (2015) ........................................................................................... 8

In re Bonham, 229 F.3d 750 (9th Cir. 2000)................................................................................ 11

In re Chateaugay Corp., 838 F.2d 59 (2d Cir. 1988) ..................................................................................... 7

In re Fischer, 53 F. App’x 129 (2d Cir. 2002) ........................................................................... 11

In re Holland, 539 F.3d 563 (7th Cir. 2008).................................................................................. 7

In re Johns-Manville Corp., 824 F.2d 176 (2d Cir. 1987) ................................................................................... 8

In re Kurtzman, 194 F.3d 54 (2d Cir. 1999) ..................................................................................... 6

In re Lehman Bros. Holdings Inc., 697 F.3d 74 (2d Cir. 2012) .................................................................................7, 9

In re Palm Coast, Matanza Shores Ltd. P’ship, 101 F.3d 253 (2d Cir. 1996) ......................................................................... passim

In re Penn Traffic Co., 466 F.3d 75 (2d Cir. 2006) ........................................................................... passim

In re Quigley Co., Inc., 676 F.3d 45 (2d Cir. 2012) ................................................................................... 10

Lothian Oil (USA), Inc. v. Sokol, 526 F. App’x 105 (2d Cir. 2013) ......................................................................... 11


iii

Stern v. Marshall, 564 U.S. 462 (2011) ............................................................................................. 11

STATUTES

28 U.S.C. § 158(a) .................................................................................................5, 9

28 U.S.C. § 158(d) ..................................................................................................... 1

28 U.S.C. § 1291 ....................................................................................................1, 6

RULES

2d Cir. L.R. 40.2 ........................................................................................................ 6

TREATISES

1-5 Collier on Bankruptcy (16th ed.) ......................................................................... 7


1

INTRODUCTION

In this Circuit, it is well-established that “[a]n inquiry into appellate

jurisdiction under subsection 158(d) [of Title 28] consists of two steps: ‘First, we

must determine whether the underlying decision of the bankruptcy court was final

or interlocutory. If the decision of the bankruptcy court was final, we must then

ask whether the district court's disposition independently rendered the matter

nonappealable.’” In re Palm Coast, Matanza Shores Ltd. P’ship, 101 F.3d 253,

256 (2d Cir. 1996) (quoting Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019,

1022 (2d Cir. 1988)) (internal alterations omitted).

The Panel’s Order dismissing this appeal did not dispute the finality of the

Bankruptcy Court Order at issue (Step One of the Palm Coast inquiry). Instead,

the Court dismissed on the ground that “a final order has not been issued by the

district court.” Panel Order at 1 (emphasis added).1 That conclusion, however, is

erroneous as a matter of law, and inconsistent with this Court’s existing

precedents.

1 The Panel’s Order mistakenly cited 28 U.S.C. § 1291 when stating the grounds for dismissal: that “a final order has not been issued by the district court as contemplated by 28 U.S.C. § 1291.” Appellate jurisdiction over a final order in a bankruptcy case arises under 28 U.S.C. § 158(d)—not Section 1291. See, e.g., In re Penn Traffic Co., 466 F.3d 75, 77 (2d Cir. 2006) (“We have the authority to decide this appeal only insofar as we have jurisdiction of it under section 158(d) . . . .”); Palm Coast, 101 F.3d at 256.


2

In granting the Trustee-Appellee’s motion to dismiss for lack of appellate

jurisdiction, the Panel relied on In re Penn Traffic Co., 466 F.3d 75 (2d Cir.

2006)—a case addressing a bankruptcy court order that was “unquestionably a

final order.” 466 F.3d at 78. The Panel cited page 78 of Penn Traffic, which

focused on Step Two of the Palm Coast inquiry: “whether the district court’s

disposition independently rendered the matter nonappealable.” But here, unlike

Penn Traffic, the District Court did not independently render non-final the

Bankruptcy Court’s otherwise-final order. To the contrary, here, the District Court

ordered no additional proceedings following remand. Indeed, the District Court’s

order would be substantively unaltered if its single reference to “remand” had been

omitted. See No. 17-CV-6672 (VEC) (S.D.N.Y.) (the “Dist. Ct. Dkt.”), ECF No. 9

(the “Dist. Ct. Order”) at 13 (“The Clerk of the Court is instructed to terminate

Docket Entry 3 and remand the case to the [Bankruptcy Court].”). Thus, it is

unsurprising that the Trustee-Appellee made no mention of Penn Traffic in either

of its briefs in support of dismissal. See Docs. 12, 30.

The Panel should reconsider the dismissal of this appeal and correct its error.

The decision of the Bankruptcy Court was final, and neither Penn Traffic nor any

decision by the Court suggests the District Court’s disposition independently

rendered the matter non-appealable.


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6

appellate jurisdiction ten days later. Doc. 12. HSBC-HK filed its Opposition to

the Motion on January 22, 2018 (Doc. 26), and the Trustee replied to the

Opposition on January 29, 2018 (Doc. 30).

On May 21, 2018, this Court issued an Order granting the Trustee’s Motion.

Doc. 41. The substantive portion of that Order reads: “This Court has determined

that it lacks jurisdiction over this appeal because a final order has not been issued

by the district court as contemplated by 28 U.S.C. § 1291. In re Penn Traffic Co.,

466 F.3d 75, 78 (2d Cir. 2006).”

HSBC-HK now timely files this Motion for Panel Reconsideration or

Reconsideration En Banc pursuant to Second Circuit Local Rule 40.2.

ARGUMENT

This Court has appellate jurisdiction to review a district court’s order

denying the appeal of a bankruptcy court order where (1) the bankruptcy court’s

order was final and (2) the district court’s disposition did not independently render

the matter non-appealable. Palm Coast, 101 F.3d at 256; see also In re Kurtzman,

194 F.3d 54, 57 (2d Cir. 1999) (“[W]e have jurisdiction because the Bankruptcy

Court’s order was final, and the District Court’s ruling did nothing to change

that.”). The test is sequential: only after deciding the finality of the bankruptcy

court order does the court of appeals consider the effect of the district court’s

disposition of the issue. 101 F.3d at 256.


7

“Difficult questions arise when the district court or appellate panel, hearing

an appeal from a final order of the bankruptcy court, remands to that court for

further action. There are both intra-circuit and inter-circuit disputes on this issue,

leaving it unresolved.” 1-5 Collier on Bankruptcy ¶ 5.10[1] (16th ed.); see also In

re Holland, 539 F.3d 563, 565 (7th Cir. 2008) (discussing circuit “split”).

This Court has sided with the majority of circuits, holding that a final

decision on a “discrete issue at bar” in a bankruptcy proceeding is rendered non-

appealable if the district court “remands the case to the bankruptcy judge for

significant further proceedings.” Penn Traffic, 466 F.3d at 78 (quoting In re

Chateaugay Corp., 838 F.2d 59, 61-62 (2d Cir. 1988)). Significant further

proceedings are those that do not contemplate simply “a ministerial act”; they

“call[] for the exercise of judgment and discretion by the Bankruptcy Court.” 466

F.3d at 79.

I. The Bankruptcy Court’s Order Was Final, and the Panel’s Order Did Not Indicate Otherwise

It is well-established that “in the bankruptcy context, the standard for finality

is more flexible than in other civil litigation.” In re Lehman Bros. Holdings Inc.,

697 F.3d 74, 77 (2d Cir. 2012); see also Palm Coast, 101 F.3d at 256 (“For

purposes of appeal, the concept of ‘finality’ is more flexible in the bankruptcy

context than in ordinary civil litigation.”). As the Supreme Court has made plain:


8

with respect to the “finality” required for an appeal “[t]he rules are different in

bankruptcy.” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015).

This circuit’s test for the finality of a bankruptcy court order is simple: an

order is final when it “finally dispose[s] of discrete disputes within the larger

case.” In re Johns-Manville Corp., 824 F.2d 176, 179 (2d Cir. 1987); see also

Bullard, 135 S. Ct. at 1692 (“[O]rders in bankruptcy cases may be immediately

appealed if they finally dispose of discrete disputes within the larger case.”).

As demonstrated in HSBC-HK’s Opposition to the Motion to Dismiss, the

Bankruptcy Court Order finally disposed of a discrete dispute within the larger

case: the dispute regarding the Court’s personal jurisdiction over HSBC-HK. Opp.

at 10-15. For the reasons discussed in the Opposition, the District Court erred in

holding that “bankruptcy court orders granting or denying discovery, including

orders related to Rule 2004 discovery, are not final for purposes of an appeal to a

district court.” See id. at 14-15.

The Panel’s Order did not reject HSBC-HK’s argument about the finality of

the Bankruptcy Court Order. Instead, the Court dismissed on the ground that “a

final order has not been issued by the district court.” Panel Order at 1 (emphasis

added).5

5 The language of the Panel’s Order, and citation to Penn Traffic, strongly suggest the Panel concluded that the Bankruptcy Court’s Order was final but for remand


9

II. The Panel Erred in Its Application of Penn Traffic Because the District Court’s Disposition Did Not Independently Render the Matter Non-Appealable

The Panel’s Order granting dismissal for lack of jurisdiction relies

exclusively on In re Penn Traffic Co., 466 F.3d 75, 78 (2d Cir. 2006). See Panel

Order at 1. Penn Traffic sets out the rule that a district court’s disposition of an

otherwise final bankruptcy court order on appeal renders the order non-final and

non-appealable where it “remand[s] the matter for further proceedings [and] leaves

unaddressed the discrete issue raised by the original application.”6 466 F.3d at 79.

The Bankruptcy Court order under consideration in Penn Traffic “was

unquestionably a final order.” Id. at 78. It was “appealable as such to the District

Court pursuant to Section 158(a) of Title 28, because it disposed entirely” of a

“discrete issue at bar” between the parties: whether a debtor could reject a contract

at issue in a bankruptcy estate. The district court reversed the Bankruptcy Court

direction by the District Court. If, however, the Panel failed to consider the finality of the Bankruptcy Court Order in the first instance, it should correct that error. This evaluation is required under the Palm Coast framework. Palm Coast, 101 F.3d at 256. Under Lehman Brothers, the Court of Appeals should undertake this review de novo. See 697 F.3d at 76 (“The district court’s determination that the bankruptcy court's order was not appealable is a conclusion of law that we review de novo.”). 6 As discussed, this Court has held that “further proceedings” are sufficiently “significant” to independently render the matter non-appealable when they call for anything more than “a ministerial act” by the bankruptcy court; some sister circuits have held differently. Supra at 7.


10

and remanded the matter, but “le[ft] unaddressed the discrete issue raised by the

original application—whether Penn Traffic should be permitted to reject the

[contract] as a matter of sound business judgment.” Id. at 79. This Court held that

the Bankruptcy Court’s remaining task on remand was “far from a ministerial act.”

Id. Instead, it was a task “calling for the exercise of judgment and discretion by

the Bankruptcy Court.” Id. As a result, the District Court’s disposition rendered

the Bankruptcy Court’s order non-final and non-appealable to the circuit court.

Unlike the district court in Penn Traffic, Judge Caproni’s order in this case

did not “call[] for the exercise of judgment or discretion by the Bankruptcy Court”

following remand. It did not call for the Bankruptcy Court to do anything at all

with respect to the issue of personal jurisdiction, dismissing the appeal and

remanding without further instructions, see District Court Order at 13, rendering

the “discrete issue at bar” closed. Nor is there any “reason to believe that the

bankruptcy court contemplates additional proceedings” as to the court’s personal

jurisdiction over HSBC-HK. See In re Quigley Co., Inc., 676 F.3d 45, 51 (2d Cir.

2012).

CONCLUSION

The Panel’s determination that the District Court Order was non-final is

erroneous as a matter of law, and inconsistent with this Court’s existing


11

precedents. The Court should grant the motion for reconsideration7 and find that it

has appellate jurisdiction.8

May 29, 2018 Respectfully submitted,

/s/ Scott E. Gant

Scott E. Gant Boies Schiller Flexner LLP 1401 New York Avenue, NW Washington, DC 20005 (202) 237-2727

7 This Court has granted reconsideration or rehearing in a similar context. See In re Fischer, 53 F. App’x 129, 132 (2d Cir. 2002) (summary order). 8 This appeal concerns an important question of constitutional law: whether a foreign entity with no connection to the United States has “submitted itself” to personal jurisdiction before a U.S. Bankruptcy Court solely on the basis of filing a proof of claim in the bankruptcy proceeding of debtors operating entirely outside the United States. Cf. Stern v. Marshall, 564 U.S. 462, 493 n.8 (2011) (“Creditors who possess claims that do not satisfy the requirements for nondischargeability . . . have no choice but to file their claims in bankruptcy proceedings if they want to pursue the claims at all. That is why . . . the notion of ‘consent’ does not apply in bankruptcy proceedings as it might in other contexts.”). Because this Court has appellate jurisdiction, it may reach the merits of the Bankruptcy Court’s substantive determination that HSBC-HK subjected itself to personal jurisdiction by filing proofs of claims. See Appellant’s Form C (Addendum B), Doc. 17-3 at 1-2. Cf. Lothian Oil (USA), Inc. v. Sokol, 526 F. App’x 105, 108 (2d Cir. 2013) (summary order); In re Bonham, 229 F.3d 750, 763 (9th Cir. 2000) (addressing decision by bankruptcy court after concluding district court erroneously concluded that decision was non-final, explaining: “We review the bankruptcy court’s decision independently of the district court’s decision.”).


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,

AND TYPE-STYLE REQUIREMENTS

1. This response complies with Fed. R. App. P. 35(b)(2)(B), Fed. R.

App. P. 40(b)(1), and LR 40.2 because it contains 2,672 words, as determined by

the word-count function of Microsoft Word 2010, excluding the parts exempted by

Fed. R. App. P. 32(f);

and

2. This response complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)

because this response has been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font.

May 29, 2018

Respectfully submitted, /s/ Scott E. Gant


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 29th day of May 2018, a true and correct

copy of the foregoing Appellant’s Motion for Panel Reconsideration or

Reconsideration En Banc was served on the following counsel of record in this

appeal via CM/ECF pursuant to Local Rule 25.1 (h)(1) & (2).

Susheel Kirpalani, Esq. James C. Tecce, Esq. Quinn, Emanuel, Urquhart & Sullivan LLP 51 Madison Avenue New York, New York 10010 (212) 849-7000

/s/ Scott E. Gant


EXHIBIT A


S.D.N.Y.–N.Y.C. 17-cv-6672 Caproni, J.

United States Court of Appeals FOR THE

SECOND CIRCUIT _________________

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of May, two thousand eighteen. Present:

Rosemary S. Pooler, Richard C. Wesley, Raymond J. Lohier, Jr.,

Circuit Judges. In re China Fishery Group Limited (Cayman), Debtor. The Hongkong and Shanghai Banking Corporation Limited,

Appellant,

v. 18-5 William A. Brandt, Jr., as Chapter 11 Trustee to CFG Peru Investments Pte. Ltd. (Singapore),

Appellee. Appellee moves to dismiss the appeal for lack of appellate jurisdiction. Upon due consideration, it is hereby ORDERED that Appellee’s motion is GRANTED and the appeal is DISMISSED. This Court has determined that it lacks jurisdiction over this appeal because a final order has not been issued by the district court as contemplated by 28 U.S.C. § 1291. In re Penn Traffic Co., 466 F.3d 75, 78 (2d Cir. 2006).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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