In re Think3 Inc. Chapter 15 (September 12, 2011)
Issues: The Debtor (Think3 Inc.) was a global technology company formed under Delaware law. A foreign representative of Debtor (Italian bankruptcy trustee) filed a Petition under Chapter 15 of Bankruptcy Code with the Court, seeking recognition of an involuntary insolvency proceeding in Italy as the “foreign main proceeding” for the Debtor. Prior to filing of the Chapter 15 Petition, the Debtor had filed for Chapter 11 in a U.S. bankruptcy proceeding. Chapter 11 Debtor and other creditors contested the Chapter 15 Petition. After extensive discovery and hearings, Foreign Representative attempted to withdraw the Chapter 15 Petition immediately prior to hearing on the merits. Holdings: Following an evidentiary hearing, the Court denied the Chapter 15 Petition filed by the foreign representative and dismissed the Chapter 15 case. In summary, the Court determined that (1) the “center of main interests” (COMI) of the Debtor was in the United States (not Italy) under 11 U.S.C. §1502(4), after examining a variety of tests; (2) the Italian insolvency proceeding filed against the Debtor was not a “foreign main proceeding” under 11 U.S.C. §1502(4);  (3) the foreign representative did not overcome the presumption under 11 U.S.C. §1516(c) that the Debtor’s COMI was the location of its registered office (which was in the United States); and (4) the pending Chapter 11 case filed by the Debtor in the United States was the “main proceeding” regarding the Debtor.