2017 ONSC 5015, 2017 ONSC 5015

CITATION : Re Emery Silfurtun Inc., 2017 ONSC 5768 COURT FILE NO.: 31-2107857 DATE: 20170828 ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST – IN BANKRUPTCY) IN THE MATTER OF THE PROPOSAL OF EMERY SILFURTUN INC. OF THE TOWN OF MARKHAM IN THE PROVINCE OF ONTARIO BEFORE : F.L. Myers J. COUNSEL : Catherine Francis, counsel for the Emery Silfurtun Inc. Peter I.

Waldmann , counsel for Warburg-Stuart Management Corporation Fred Tayar , counsel for MacPherson & Associates Inc. in its capacity as Proposal Trustee HEARD: August 21, 2017 ENDORSEMENT [ 1 ] There are three pending motions awaiting scheduling: Warburg-Stuart Management Corporation has brought a motion in this proceeding to annul the approved and implemented proposal in bankruptcy made by Emery Silfurtun Inc.

Second, Warburg-Stuart has brought a separate action against Emery Silfurtun in which Warburg-Stuart asks the court to enforce a security interest by appointing a receiver and manager to take possession and realize on the assets and undertaking of Emery Silfurtun. And finally, in that proceeding, Emery Silfurtun asks the court to declare Warburg-Stuart’s purported security interest invalid. [ 2 ] On July 13, 2017, Conway J. ordered that Warburg-Stuart’s application to annul the bankruptcy proposal will proceed first.

In addition, she scheduled a preliminary motion proposed by Warburg-Stuart seeking production of a settlement agreement between Emery Silfurtun and one of its significant creditors referred to as Zodax. [ 3 ] I heard and resolve in this endorsement only the preliminary production motion. Warburg-Stuart claims that the settlement terms are relevant to the three pending motions and must be produced.

Emery Silfurtun says that the settlement is confidential by its terms and it claims privilege over the settlement agreement. [ 4 ] Zodax has chosen not to participate in this motion. [ 5 ] For the reasons that follow, Emery Silfurtun and the proposal trustee are required to produce the settlement agreement with Zodax and related correspondence. Any settlement privilege claimed, if it applies, must yield to the interests of justice in assessing the appropriateness of the approval of the proposal and the parties’ competing claims on the facts of this case. The Facts [ 6 ] Many of the key facts are contested.

I do not need to resolve disputed facts to decide the motion. [ 7 ] Warburg-Stuart claims that Emery Silfurtun owes it fees for services rendered by Warburg-Stuart in obtaining a financing commitment for Emery Silfurtun. Emery Silfurtun denies liability. Emery Silfurtun says that it never entered into any financing commitment sourced by Warburg-Stuart and therefore it says that it owes no fees. [ 8 ] Warburg-Stuart asserts a security interest in its claimed fees pursuant to a general security agreement and other security documents provided by Emery Silfurtun.

Emery Silfurtun says that there was an oral agreement that the security documents that it signed were to be held in trust by Warburg-Stuart pending execution of a formal trust document that was never signed. In addition, Emery Silfurtun claims that it was an oral term of the security that it provided to Warburg-Stuart that the security would be discharged if Emery Silfurtun settled with Zodax so that Zodax released its secured claim against Emery Silfurtun.

It appears that Emery Silfurtun is claiming that it only granted security to Warburg-Stuart to secure its fee entitlement for so long as the priority of that claim was threatened by a competing secured claim of Zodax. [ 9 ] These facts underlie the competing motions in the separate debt enforcement proceeding brought Warburg-Stuart. Warburg- Stuart seeks to enforce its security and asks the court to assist by appointing a receiver.

Emery Silfurtun seeks to have the security invalidated either for breach of the oral trust agreement or because it settled Zodax’s secured claim so that Warburg-Stuart no longer has a need for or right to a security interest. [ 10 ] Emery Silfurtun argues that the Zodax settlement agreement does not need to be produced despite its own assertion of a cause of action that is expressly based on the settlement agreement to undermine and invalidate the security interest asserted by Warburg- Stuart. The central relevancy of the settlement agreement to that cause of action is obvious.

[ 11 ] The facts behind Warburg-Stuart’s attack on the approval of Emery Silfurtun’s completed proposal in bankruptcy are different. There are two factual prongs to that attack. First, Warburg-Stuart alleges that Emery Silfurtun had made sales to customers that were not completed before it brought its proposal. Warburg-Stuart says that Emery Silfurtun improperly diverted those sales to its Icelandic affiliate. That affiliate then used the revenue from the sales to purport to provide third party funding for the proposal.

Warburg- Stuart refers to documents that seem to support its claim that the sales were initially made by the proposal debtor. There is no explanation by Emery Silfurtun or the proposal trustee of how the assets or corporate opportunities of the debtor became the assets of the Icelandic affiliate.

Nor is there any evidence suggesting that the proposal trustee performed any review of the inter-affiliate transactions or assessed the claim of independence of the alleged third party funding of the proposal. [ 12 ] If Emery Silfurtun’s owners diverted its assets to an affiliate and then purported to make an investment in the proposal from the affiliate by using funds that properly ought to have remained the property of the proposal debtor, the creditors and the court may find those facts relevant to an assessment of the bona fides and propriety of the proposal. [ 13 ] I make no findings on these claims however.

This piece of story does not bear on the settlement agreement with Zodax at all. [ 14 ] The second prong of attack by Warburg-Stuart against the approval of the proposal deals with the treatment of the Zodax’s claim in the proposal. Zodax initially delivered a proof of claim that asserted a secured claim of $352,000. The claim was said to be in relation to a failed transaction between Zodax and Emery Silfurtun. Zodax claimed a constructive trust in respect of a deposit that it paid that was allegedly dissipated improperly by Emery Silfurtun.

On its face, there is an issue of how a claim for a constructive trust in respect of a dissipated transaction deposit can be classified as a secured claim rather than a proprietary claim. Moreover, unlike express, implied, and resulting trusts, a constructive trust is a remedy that does not exist or arise until it is awarded by a court. The secured claim therefore is contingent at best.

Warburg-Stuart questions the validity the secured claim asserted by Zodax. [ 15 ] Counsel for Warburg-Stuart took the court to the facts concerning t he transaction agreement under which Zodax initially paid the $352,000 deposit to Emery Silfurtun. That transaction agreement contains a limitation of liability clause that seems to limit any damages entitlement of Zodax to the $352,000 claim that it made. [ 16 ] Zodax first made a claim against Emery Silfurtun in relation to the underlying transaction years ago. In February, 2015, Zodax and Emery Silfurtun settled Zodax’s initial claim.

Under that settlement, Emery Silfurtun agreed to make scheduled payments to Zodax over time. It was a term of the settlement that if Emery Silfurtun defaulted on its obligation to make the agreed upon payments, Emery Silfurtun consented to judgment issuing in favour of Zodax for $352,000. [ 17 ] The original settlement included a complete release of all other claims by Zodax other than a claim to enforce the settlement terms i.e. for payment of the agreed upon $352,000. [ 18 ] Emery Silfurtun defaulted under the original settlement.

Under Rule 49 of the Rules of Civil Procedure , RRO 1990, Reg. 194, Emery Silfurtun’s default gave Zodax a choice of remedies. It could elect to rescind the settlement and continue its litigation; or it could elect to enforce the settlement.

Zodax chose to enforce the settlement and obtained judgment against Emery Silfurtun in the amount of $352,000. [ 19 ] Warburg-Stuart argues that by electing to affirm and enforce the settlement agreement, Zodax necessarily remains bound by the terms of that agreement including its full and final release of all other claims against Emery Silfurtun. [ 20 ] A few weeks before the vote on the proposal, Zodax amended its proof of claim. It added to its secured claim of $352,000, a contingent, unliquidated, unsecured claim for damages for breach of the original transaction agreement in the amount of $2,750,000.

Warburg-Stuart argues that this claim was released by Zodax and is impermissible under the limitation of liability clause in the initial transaction agreement in any event. The amended unsecured claim, it says, was plainly invalid on even a cursory review of the underlying documents. [ 21 ] A few days before the creditors’ vote on the proposal, Emery Silfurtun announced that it had settled with Zodax on its claim in the proposal. Emery Silfurtun says that it did not pay anything to Zodax under the settlement. That is a partial disclosure of the terms of the settlement.

Warburg-Stuart questions why Zodax would take nothing on an allegedly secured claim. [ 22 ] At the creditors’ meeting, the proposal trustee allowed Zodax to vote the full $2,750,000 unsecured claim. Warburg-Stuart points to the trustee’s report of the meeting and argues that without the vote of Zodax, the proposal would not have had the 66% support required for approval.

The Zodax claim of $2.75 million, it argues, was patently invalid so that the proposal trustee should not have allowed Zodax to vote that claim. [ 23 ] Emery Silfurtun points to its own denial of the validity of Warburg-Stuart’s claim and says that for voting purposes the proposal trustee simply allowed all claims as asserted. That is, it allowed every creditor to vote subject to a later determination of the validity and quantum of its proper claim. [ 24 ] Warburg-Stuart does not object to the well-understood distinction between approval of claims for voting purposes and for distribution purposes.

But, it objects to the trustee’s reliance on the contested, unproven claims as voted for the purpose of seeking approval of the proposal just a few days after the vote was held. It points to s. 54 (2) of the Bankruptcy and Insolvency Act , RSC 1985, c. B-3 for the proposition that only proven claims can be utilized formally in a proposal. That is, it argues that the proposal trustee was obliged to make final determinations on the disputed claims before allowing the disputed votes to count toward the creditors’ vote.

At minimum, it argues that it was incumbent on the proposal trustee to alert the creditors and the court that several of the claims that it allowed to vote were approved only for voting purposes and had quantums that could materially affect the outcome of the creditors’ vote. It argues that it was necessary in the circumstances to defer the final approval of the plan until final acceptance of some or all of those claims. [ 25 ] Once again, these facts represent positions only. Findings will be made, if required, at the hearing of the motion to annul the approval of the proposal.

The issue on this motion is whether the settlement agreement between Emery Silfurtun and Zodax ought to be

produced for use as evidence for that motion. [26] In my view, if the facts asserted by Warburg-Stuart are proven true, then the integrity of the proposal process is very much inquestion. At its worst, it may be argued that the proposal debtor bought the votes of Zodax by giving it a massive claim to which it wasnot entitled in order to obtain sufficient votes to obtain creditor approval of the plan.

Moreover, if the facts as asserted are true, anargument is available that the proposal trustee abdicated its duties and responsibilities to the court and to the creditors both in respect ofthe review and assessment of the Zodax settlement agreement but also in its acceptance and reliance upon untested claims.

In addition tothe contested claims of Zodax and Warburg-Stuart, there is no indication in the evidence before me, that includes the proposal’s trustee’sreport to the court on the proposal approval motion, that the trustee made any assessment of the validity and value of other contingent,unliquidated claims or even recognized the need to do so at any stage in the process. [27] There is no indication in the evidence that the proposal trustee did anything in respect of the issues raised in these proceedings(alleged diversion of assets, voting of invalid claims, etc.).

Counsel for the proposal trustee was present in court for the argument of thismotion and had no submissions to make in response to several express allegations of wrongdoing made against the proposal trustee bycounsel for Warburg-Stuart with some documentary support in the evidence. The time for resolution of those issues is at the motion toannul the proposal. I presume that the proposal trustee will favour the court that hears the motion with evidence in response to theserious allegations made against it.

As the proposal trustee’s conduct is in issue, its evidence is to be delivered by sworn affidavit so thatit is available for cross-examination if sought. The Law [28] In Oulahen, Re, 2000 CarswellOnt 947 (SC), Farley J. refused to approve a proposal.

He found that an assignment of debts inissue in the case before him was “nothing more than a device to improperly attempt to avoid the provisions of s. 54 (3)” of the BIA.Farley J. found that an agreement to vote in favour of a proposal with no strings attached would not necessarily be objectionable.“However,” he cautioned, “any such assignment would have to be carefully scrutinized as to its merits and its warts.” [29] The Court for Appeal upheld Justice Farley’s rejection of the plan in Oulahen v. Williams, (ON CA).

Indoing so the court held: In these circumstances, it was reasonable for the motions judge to conclude that the assignments were entered into for the specificpurpose of circumventing the Act and the motions judge properly refused to approve the proposal made by Oulahen. [30] The need for scrutiny of agreements among proposal debtors and interested parties necessarily implies that such agreementscannot be confidential. Devices to shield such deals from scrutiny have always been viewed as problematic. [31] In an early CCAA case, Northland Properties Ltd. v. Excelsior Life Ins.

Co. of Can., (BC CA) the B.C.Court of Appeal was required to comment on a side deal entered into between a creditor and the debtor. The Court wrote: [30] There is no doubt that side deals are a dangerous game and any arrangement made with just one creditor endangers theappearance of the bona fides of a plan of this kind and any debtor who undertakes such a burden does so at considerable risk. In thiscase, however, it is apparent that this agreement was not made for the purpose of ensuring a favourable vote because at the time the dealwas struck the companies had not reached an accommodation with the bank.

I think the companies were negotiating, as businessmen do,on values for the purpose of putting a plan together. [31] Further, the arrangement with Relax was fully disclosed in the plan. This does not ensure its full absolution if it was improper,but at least it removes any coloration of an underhanded or secret deal…[Emphasis added.] [32] Proposals are statutory processes that include court proceedings. Proposal debtors are protected from bankruptcy if they canconvince their creditors and the court to support the terms of the proposal.

Transparency of the affairs of the debtor to the creditors andto the court is a minimum condition of the good faith performance of a proposal process. [33] In 1511419 Ontario Inc. v KPMG LLP, 2017 ONSC 2472 , the court discussed the impropriety of secret deals in anCCAA plan process as follows: [41] Prior to his appointment to the bench, the great jurist Justice Louis Brandeis wrote the following words that remain as vibrant andapplicable today as when they were written over 100 years ago: If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects. [42] Disclosure to interested parties and to the Court of the terms for which approval is sought or mandated is a minimumrequirement.

CCAA debtors are supervised by the Court under the watchful eyes of their creditors and other interested parties. Transparency is a part of the quid pro quo that comes with enjoying the protections of the CCAA. This is reflected in the Monitor’s roleas the Court’s eyes and ears, its power to access all information and records of the debtor, its obligation to report to the Courtperiodically, and the Monitor’s specific obligation to provide information concerning the debtor and its restructuring efforts uponrequest. [34] Ms.

Francis for Emery Silfurtun raises several points to resist disclosure of the settlement agreement with Zodax. First, shenotes that the terms of the settlement agreement require Emery Silfurtun to keep the deal terms confidential. I do not understand bilateralconfidentiality terms to supersede court ordered production of relevant documents under the Bankruptcy and Insolvency General Rules,CRC, c 368, the Rules of Civil Procedure, and the law of evidence. Ms. Francis made no submission to the contrary.

Rather, she seemedto be explaining that her client’s opposition to disclosure was driven by a desire to avoid a claim of breach of contract by Zodax. Thatproblem however was of Emery Silfurtun’s own making in agreeing to a confidentiality term in circumstances in which such terms arepresumptively unlawful.

[35] Ms. Francis then asserts that the evidence adduced by Warburg-Stuart as to the recent timing of its learning of the settlementagreement is untrue. She points to evidence to the contrary adduced by Emery Silfurtun. She argues that since Warburg-Stuart knew theissues throughout, it ought to have appealed from the trustee’s decision to allow Zodax to vote its claim; or it could have opposedapproval of the proposal; or it could have appealed from the approval of the proposal.

She argues that the motion to annul the proposal,coming when it does, many months after Warburg-Stuart has been stalled in its receivership efforts, is an abuse of process. [36] I cannot resolve on this motion the evidentiary issue as to when Warburg-Stuart learned of the facts on which it now relies.Neither can I resolve the issue of whether the annulment motion is an abuse of process. It may be that the judge who hears theannulment motion will conclude that Ms. Francis is correct. That may then be a complete answer to the motion to annul.

But the decisionas to whether the settlement agreement ought to be produced for use on that motion turns on relevancy and privilege. Absent questions ofproportionality, production does not turn on the strength of the underlying case. In this case, the document sought is of central relevancyto the positions of both parties on the second prong of Warburg-Stuart’s attack on the proposal and on the motion brought by EmerySilfurtun to avoid Warburg-Stuart’s security. Argument that goes to the merits of the annulment motion is not relevant to the issue ofproduction that is before the court. [37] Ms.

Francis then argues that Warburg-Stuart’s own claim is invalid because no financing deal was entered into for which itcould claim a fee from Emery Silfurtun. Without a valid claim, she argues, Warburg-Stuart has no standing to challenge the annulmentor to seek production of the settlement agreement. This standing argument also goes to the merits of the annulment motion and EmerySilfurtun’s motion to declare Warburg-Stuart’s security invalid. It has no bearing on the production issue before the court. [38] Ms.

Francis argues that Warburg-Stuart and its expert are wrong in their calculation of the effect of the Zodax vote on theoutcome of the proposal. They point to the claim of another major creditor which they say supports the proposal outcome regardless ofthe votes of Zodax. That argument may also be correct and may be a full answer to the annulment issue on the merits. Like the priorarguments however, it has no bearing on the production issue before the court.

Privilege does not apply [39] In Sable Offshore Energy v Ameron International, [2013] SCC 37 the Supreme Court of Canada held thatagreements to settle litigation can be protected from disclosure by privilege. In that case, some terms of a Pierringer agreement betweenparties were kept confidential from other parties despite the fact that court approval of the Pierringer agreement was required. Para. 19of the reasons of Abella J., for the unanimous court, discusses exceptions to the claim of privilege as follows: [19] There are, inevitably, exceptions to the privilege.

To come within those exceptions, a defendant must show that, on balance, “acompeting public interest outweighs the public interest in encouraging settlement” (Dos Santos Estate v. Sun Life Assurance Co. ofCanada, 2005 BCCA 4 , 207 B.C.A.C. 54, at para. 20). These countervailing interests have been found to include allegations ofmisrepresentation, fraud or undue influence (Unilever plc v. Procter & Gamble Co., [2001] 1 All E.R. 783 (C.A. Civ. Div.), Underwoodv. Cox (1912), (ON SCDC), 26 O.L.R. 303 (Div.

Ct.)), and preventing a plaintiff from being overcompensated (DosSantos). [40] In this case, there are several reasons to conclude that privilege does not apply or has been waived. First, even if privilegeapplies, Emery Silfurtun expressly invokes and relies upon the undisclosed terms of the settlement agreement as the basis for its attackon Warburg-Stuart’s security. Emery Silfurtun cannot at the same time argue that it fears breaching its agreement if it is ordered toproduce the settlement agreement and then rely on the undisclosed agreement as a basis to attack another party’s security.

Warburg-Stuart does not have to take Emery Silfurtun’s word for the contents and effect of the agreement. Perhaps the proposal trustee might havebeen asked to perform a role in reviewing and providing some assurances about the contents were they truly sensitive, confidentialmaterial. No one asked the proposal trustee to take on that task however. Moreover Emery Silfurtun has selectively disclosed at least oneterm of the settlement agreement in its evidence that the agreement does not require it to pay Zodax anything on its secured claim.

Ifprivilege applies therefore, in my view Emery Silfurtun has waived it by its conduct. [41] Moreover, Zodax has chosen not to attend to assert its interest in any alleged privilege. [42] In addition, it is clear that the process of negotiation and the terms of the final settlement agreement between Zodax andEmery Silfurtun are very relevant to the motion to annul the approval of the proposal. Ms. Francis submitted that Emery Silfurtun is thevictim of Zodax. She says that Zodax threatened to defeat the proposal.

I asked her how that could have been the case if its claim of $2.7million was released as Warburg-Stuart asserts. The answer to that question apparently turns on the conduct of the negotiating parties andthe terms of the settlement. Perhaps Emery Silfurtun gave Zodax a huge claim to which it was not entitled as incentive to give up itssmaller “secured” claim so as to buy creditor approval of the proposal. Or, perhaps, the course of conduct will show a much differentstory with a bona fide basis for settlement terms that are readily explicable as a good faith compromise without any concern forimpropriety.

In other words, the outcome of this prong of the annulment motion turns on the dealings between Zodax and EmerySilfurtun and the terms of their settlement agreement. [43] However that just makes the settlement agreement relevant to the motion. Privilege does not yield to relevance alone. Asirrelevant documents are never admissible, privilege would be meaningless if relevancy alone was enough to defeat it.

Rather, as notedabove by the Supreme Court of Canada, before relevant documents over which privilege is claimed can be disclosed, there is a balancingto be performed among competing public interests. [44] At para. 13 of Sable Island, Abella J. discussed the policy behind settlement privilege as follows: As Oliver L.J. of the English Court of Appeal explained in Cutts v.

Head, [1984] 1 All E.R. 597, at p. 605: . . . parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by theknowledge that anything that is said in the course of such negotiations . . . may be used to their prejudice in the course of theproceedings. They should, as it was expressed by Clauson J in Scott Paper Co v. Drayton Paper Works Ltd (1927) 44 RPC 151 at 157,be encouraged freely and frankly to put their cards on the table.

What is said during negotiations, in other words, will be more open, and therefore more fruitful, if the parties know that it cannot be subsequently disclosed. [ 45 ] BIA proposal and CCAA proceedings are all about facilitating settlements between an insolvent debtor and its creditors. There are few contexts in which encouraging settlement is more important to the outcome of litigation. Unless the debtor succeeds in obtaining creditor support for its proposal, it will go bankrupt and its business will likely be closed and liquidated.

The failure to negotiate a successful compromise with creditors generally results in an end to the debtor’s business in CCAA cases too. [ 46 ] However, the compromise involved in CCAA and BIA proposal proceedings is class based. While perfect equality among class members is not necessarily required, it is the norm. Individual claims settlements are also required. But, as noted above, to ensure the integrity of the process, those settlements, or at least the material ones, must be disclosed and are subject to court approval. Secret side deals are suspect.

Settlements are presumptively subject to transparent scrutiny. [ 47 ] In my view, settlement privilege cannot apply to the contents of claims settlements between creditors and a debtor in a CCAA or BIA proposal process. Secrecy of deal terms is inconsistent with the necessity of scrutiny of such agreements by other creditors and the court. In Sable Island the terms withheld were not germane to the issues that were before the court on the approval of the Pierrenger agreement.

In this case, understanding the course of conduct and the ultimate deal by which Zodax’s became entitled to vote an unsecured claim for $2.7 million in the proposal relates directly to the integrity and propriety of the proposal process. The recognition of a blanket privilege for claims settlements under the CCAA and BIA is inconsistent with the transparent statutory processes that require scrutiny of such agreements.

In my view settlement privilege does not apply to claim settlements in a CCAA or BIA proposal process. [ 48 ] Put differently, in my view, the interests of justice in the integrity of the BIA proposal process overwhelm any need to encourage settlement by recognizing privilege in this case. Creditors of a failing debtor do not need a promise of confidentiality in order to be encouraged to settle their claims on the way to approving and implementing a CCAA plan or a BIA proposal. The economic incentives take care of themselves.

The creditor compromise process is predicated on the economic assumption that if creditors believe that they will recover more from an approved plan or proposal than they will recover through a bankruptcy of the debtor, they will find a way to agree upon a plan or proposal. The plan and proposal processes seek to take advantage of that economic reality to avoid the scourge of bankruptcy that will otherwise befall insolvent debtors. No impediment to creditors’ claims being settled has emerged in CCAA and BIA proposal cases reported since the re-emergence of the CCAA in the late 1980s.

There is no basis in the evidence to suggest that there is a need for confidentiality to encourage settlements in these BIA proceedings or that any such need outweighs the risks of “colouration of an underhanded or secret deal”.

In my view, the public interest in maintaining the integrity of BIA proposal proceedings by transparency and scrutiny of settlements among debtors and stakeholders readily outweighs any incremental benefit that privilege might provide to the economic incentives that already encourage settlements in these proceeding. [ 49 ] Whether privilege either does not apply or the countervailing policies of transparency and accountability in CCAA and BIA proceedings outweigh the policy basis of encouraging settlement that supports privilege, the outcome is the same. Privilege does not apply to the Zodax settlement.

Outcome [ 50 ] Mr. Waldmann argues that in this case a BIA debtor parked its assets offshore, surreptitiously fed some of its own money back into its proposal under the guise of independent third party funding, and then bought the votes of a key creditor in a secret deal that improperly allowed the creditor to vote a massive claim to which it could not have been entitled under the documents disclosed to date. Whether his client has the right to make those assertions at all, or at this time, and whether they are correct remains to be seen.

But the seriousness of the assertions fundamentally concerns the integrity of the process and the integrity of the proposal trustee’s scrutiny of the debtor’s conduct and the voting process (or, more properly, am alleged lack of scrutiny). These allegations underline the importance of production of the Zodax settlement in this case. [ 51 ] Emery Silfurtun shall disclose forthwith to Warburg-Stuart and the proposal trustee all documents that set out any and all terms of its settlement with Zodax.

In addition, the proposal trustee and Emery Silfurtun shall disclose forthwith to Warburg-Stuart copies of all communications between and among either or both of them and Zodax, as well as any communication between the proposal trustee and Emery Silfurtun alone concerning Zodax – in both cases from the time of the commencement of the proposal process to date. [ 52 ] Costs are payable forthwith by Emery Silfurtun to Warburg-Stuart on a partial indemnity basis of $5,100. F.L. Myers J. Date: August 28, 2017