Judges craft own formula for Nortel’s $7.3 billion in cash

The Canadian and American judges charged with dividing the US$7.3 billion from the liquidation of Nortel Networks rejected proposals from former regional businesses and opted for a pro rata split of the money in long-awaited rulings on Tuesday.

Judges on the U.S. Bankruptcy Court in Wilmington, Del. and Ontario Superior Court of Justice held an unprecedented joint cross-border trial on the dispute, with the courtrooms linked by video. The legal battle has raged for years through numerous courts, chewing up more than $1 billion in fees for lawyers and other advisors.

Nortel filed for bankruptcy in 2009 and sold its global operations and patents, raising the cash in dispute. In the years that corporate entities in Canada, the United States and Europe have fought over the funds, retirees and bond investors have awaited repayment.

U.S. Bankruptcy Judge Kevin Gross and Justice Frank Newbould said in separate opinions that each regional business would receive cash to pay its creditors based on their claims against it as a percentage of the overall claims worldwide.

 The judges said in their simultaneous opinions that a pro rata division was the most fair and satisfactory way to split the money.

Gross wrote in his 130-page opinion that the various regional business “have lost sight of the irrationality of their respective positions” and left “no virtually no middle ground.”

The Canadian unit had argued it should receive about 83 per cent of the money, because it was the legal owner of many of the assets sold. The European businesses wanted the money divided based on each region’s contribution toward creating the value of the assets that were sold. As the U.S. unit saw things, it deserved 73 percent of the cash based on its beneficial ownership model.

Lawyers for the U.S., Canadian and European units of Nortel did not immediately respond to a request for comment.

“It would not be going out on a limb to say that the rulings get appealed regardless of what they contain,” wrote Kevin Starke, an analyst with CRT Capital in a note published before the opinions.

He said a “middle ground” ruling was best in terms of wrapping up the cases without dragging them out for more than another year.

Nortel was once among the world’s largest tech companies. Its stock market valuation swelled to $260 billion and Nortel employed nearly 100,000 at its peak, before the bursting of the telecom bubble and accounting problems.

In his decision, Newbould gave kudos to the court reporters, technical staff and lawyers who all worked on the complex cross-border case. As well he had praise for his U.S. counterpart.

“I want to thank Judge Gross for his courtesies and good humour. It has been a pleasure to work with him. Without such a good relationship and the trust that we developed for each other, this trial and its conclusion would not have been possible.”

Read more on the nuts and bolts of how the case was conducted in next week’s Law Times.

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