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the Muscletech suit are present in the MMA case, including the monitor, Richter, and one of MMA Canada's lawyers, Derrick Tay of Gowlings, who has played a role in many of the recent high-profile cross-border filings. So why would a third-party agree to become embroiled in insolvency proceedings? David Molton, an insolvency lawyer at Brown Rudnick LLP in New York, who helped craft the Muscletech strategy, says the alternative is unattractive. He says nobody wants to be in front of a jury in Cook County, Ill. — where one of MMA's related companies is based — where 42 U.S. wrongful death suits have been filed, seeking more than US$50-million in damages. He calls it a "jury hellhole" and "one place no defendant wants to be. Juries [in that jurisdiction] whack them and whack them hard." Third-parties and their insurers may well see it as cheaper to kick in to a SPECIALIZATION IN BUSINESS LAW Congratulations to our GPLLM Class! We are proud to announce the 2013 GPLLM graduates: For more information on the GPLLM program visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. 26 ntitled-4 1 • d ec em b er 2013/january2014 settlement pot than roll the dice with a jury and fight the case for years. Hurdles to settlement However, there are still many hurdles to achieving a settlement. First, there are two main insolvency proceedings. There is a strong argument to be made that the Canadian court should drive the claims process, since the disaster happened on this side of the border and the victims are Quebeckers. However, MacParland says "it's not clear which court they intend to take the lead." There are pros and cons to both. MacParland says, "Your goal is fairness, which is an amorphous concept." The U.S. system is much more adversarial and it includes a more formal committee system that drives the restructuring process. Already the U.S. action has seen a number of legal dust-ups, including a fight between the wrongful death victims group and the broader group of victims from Quebec over whether a formal victims committee should be established. Lawyers for the 42 victims opposed the committee, while lawyers for the province of Quebec, the town of Lac Megantic, and other victims supported it. The judge ordered a victims' committee be established because it would provide an "extra-judicial forum for victims with claims of different kinds to develop a common approach to case administration, the development of a plan and any issue in the case." It would also "allow victims to speak with one voice when appropriate" and "give official standing and voice to victims who may be without one." At press time it was up to the MMA trustee to determine its makeup and counsel. Molton says that dispute "suggests to me as an outsider that there is a lot of tension and competition for the limited dollars." Another issue is priorities and the different processes for dealing with the secured and unsecured creditors in the two systems. MacParland says "it's a huge issue." Farber's Nackan, who acts as a receiver and monitor in insolvency cases, adds, "It's a really tough case. There are lots of emotional issues. At the end of the day, if [someone has] valid security, they are going to rank first. It's not a matter of the monitor exercising discretion." INHOUSE 13-11-22 9:33 AM

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