4th Cir.: Tiber Creek Partners v. Ellume USA- Bankruptcy in the Land Down Under

Summary:

Tiber Creek Partners, a Virginia-based consulting firm, helped Ellume Ltd.—an Australian biotech company—and its U.S. subsidiary secure over $260 million in COVID testing contracts from Uncle Sam. When Ellume didn’t pay up, Tiber Creek sued in its home forum, the Eastern District of Virginia. But the district court dismissed the case on forum non conveniens grounds, and the Fourth Circuit just affirmed, sending the whole affair packing to Australia faster than you can sing “Waltzing Matilda.”

Tiber Creek filed two suits:

• Ellume I: A breach of contract action against Ellume USA

• Ellume II: A fraud case alleging that Ellume and its execs improperly shifted liability to the insolvent parent

The catch? Ellume Ltd. had entered voluntary administration (Australia’s version of Chapter 11 and definitely not a Kangaroo Court), and Tiber Creek had already filed a claim there. Most of the key witnesses, documents, and dirty laundry were in the land down under. Plus, several of the relevant contracts—including a Deed of Variation and a 2022 Services Agreement—were governed by Australian law and designated Australian courts as the forum of choice.

The district court said, essentially, “This is an Australian matter for Australian courts,” and dismissed both suits without prejudice. The Fourth Circuit agreed: even though Tiber Creek sued in its home forum (which generally gets strong deference), the ties to Australia were just too strong to ignore. Otherwise, they reasoned, you’d have courts on two continents litigating overlapping issues. And if that’s not a logistical Foster’s-fueled headache, what is?

Tiber Creek protested that it was being ousted from its own backyard and that Ellume USA was a domestic defendant. But the majority wasn’t buying it. Instead, they held that consolidating both cases in Australia was the more efficient and fair approach—even if it meant the Virginia-based plaintiff got knocked down.

In dissent, Judge Richardson channeled his inner Crocodile Dundee and scoffed at the majority’s “that’s not a forum—this is a forum” analysis. He emphasized that a citizen suing in its home court should only be bounced if keeping the case would be truly oppressive to the defendants, not merely less convenient. He summed it up as “a result that defies common sense”—like drinking tea without milk or calling flip-flops “thongs.”

Commentary:
The court’s holding is a walkabout through some thorny terrain of international contracts, forum selection clauses, and foreign insolvency. Though unpublished, this opinion quietly broadens the power of forum non conveniens when foreign bankruptcy is lurking in the background—even without Chapter 15 recognition. The court treated the Australian voluntary administration (and later liquidation) as a meaningful factor, despite no formal recognition of it under U.S. law. Apparently, if you come from a land down under, that’s jurisdiction enough.

Also notable: the panel relied heavily on the contractual terms pointing toward Australia, even though Tiber Creek tried to sue only the U.S. subsidiary. Moral of the story? If your consulting agreement is vague about who owes you money, and you’ve signed later documents governed by foreign law, don’t be shocked if the judge tells you to take your invoice walk 500 hundred miles (and then walk 500 more).

Yet perhaps the real legacy of this case lies in its narrative arc. After all, Tiber Creek thought it was collecting U.S. taxpayer money from a U.S. company, in a U.S. court. So with the dismissal being without prejudice, there’s still a chance Tiber Creek reboots the fight in Australia. So  don’t count them out just yet since in the immortal words of Chumbawamba they might “get knocked down, but .. get up again, you're never gonna keep me down...” 

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