February Edition 2022

34 Limited Liability Companies Act of 13 June 1997 and similar non-statutory Norwegian law. Norske Skog also pled, in the alternative, unjust enrichment against the defendants. The defendants sought to dismiss the adversary complaint. Although the standard for a motion to dismiss under the Bankruptcy Code is whether the complaint alleges “enough facts to state a claim for relief that is plausible on its face”5 and, with respect to the allegations of fraud, whether the party has stated with particularity the circumstances constituting fraud,6 in making those analyses Judge Glenn was required to address issues relating to choice of law, timeliness, and the applicability of Bankruptcy Code Sections 546(e). Undertaking a choice of law analysis, Judge Glenn concluded, for the limited purpose of the motion to dismiss, that because there is a conflict between New York’s statute on fraudulent conveyances and Norway’s laws, that the law of the jurisdiction having the “greatest interest in the litigation will be applied”.7 Because the fraudulent conveyance statutes at issue were “conduct-regulating” rules, and for those claims where “all or substantially all” of the conduct occurred in Norway, Norwegian law was held to apply, and the claims survived, for now. For those claims where the conduct was found to have occurred in New York, the claims under Norwegian law were dismissed.8 Having concluded that Norwegian law was applicable to the motion to dismiss analysis, the Judge was faced with the question of timeliness of the claims. The issue was whether the U.S. Bankruptcy Code’s tolling provision can apply to claims arising under the bankruptcy laws of another jurisdiction. Section 108(a) of the U.S. Bankruptcy Code tolls the statute of limitations for any action under applicable non-bankruptcy law that has not expired prior to the date of the commencement of the bankruptcy. A qualifying claim is tolled to the later of the end of such statute of limitations period (including any suspension of such period occurring on or after the commencement of the case) or two years after the order for relief. Here, the claims asserted against the GSO defendants under the Recovery Act in the December 18, 2018 adversary complaint would have been time barred under the Recovery Act as of that date, meaning had those claims been brought in Norway on the date the adversary complaint was filed, they would have been dismissed. 5 Federal Rule of Civil Procedure 12(b)(6), made applicable by Federal Rule of Bankruptcy Procedure 7012. 6 Federal Rule of Civil Procedure 9(b), made applicable by Federal Rule of Bankruptcy Procedure 7009. 7 CITE 8 In re Banrktupcy Estate of Norske Skogindustrier ASA, --- B.R. ---, at --- (2021); 2021 WL 1687903 at *___.

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