RKS Wins Major Ruling Allowing Fraudulent Transfer Claims to Go Forward Against Bausch Health and Bausch + Lomb

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November 30, 2022

In an important step in protecting their clients’ interests and preventing Bausch Health Companies (“Bausch Health”) from putting the assets of Bausch + Lomb (“B+L”) beyond the reach of judgment creditors through a corporate spin-off, Rolnick Kramer Sadighi LLP (“RKS”) today secured a vital legal ruling that will allow their clients to pursue fraudulent transfer claims against Bausch Health and B+L in New Jersey state court.   United States District Judge Michael A. Shipp granted RKS’s motion to remand their clients’ fraudulent transfer action against Bausch Health and B+L back to state court, holding that Bausch Health and B+L had improperly removed the action to federal court earlier this year.  In removing the action, the defendants purported to rely on a 1998 federal law (the Securities Litigation Uniform Standards Act or “SLUSA”), which was designed by Congress to prevent securities fraud strike suits from being filed in state court.  Defendants argued that SLUSA barred Plaintiffs’ fraudulent transfer claims.  Judge Shipp agreed with RKS that SLUSA does not apply to RKS’s clients’ declaratory judgment action brought pursuant to New Jersey’s fraudulent transfer statute because: (i) the relief RKS seeks on behalf of its clients is a declaration that the spin-off is voidable, such that they may continue to look to B+L’s assets to satisfy their claims against Bausch Health; and (ii) securities fraud is not a factual predicate of the fraudulent transfer claims.  RKS’s clients’ fraudulent transfer action will now proceed against Bausch Health and B+L in state court.

The federal case, which is now concluded, is captioned GMO Trust, et al. v. Bausch Health Companies, Inc., et al., No. 22-cv-1823-MAS-LHG (D.N.J.).