OG: It is a good thought. It shouldn't matter but the court will be influenced by hardship. To show that Tenor have made such a huge winfall, that Crystallex management are getting more than all shareholders combined, that the noteholders (and all other creditors) have been made whole plus all interest, yet shareholders have lost a fortune and in some cases perhaps suffered severe financial harm could help.

Unfortunately, first and foremost, the case must win on the law. The judge won't have the power to say Tenor is legally right but is taking away $100m or more because he sympathises with the shareholders. If Gowling wins on criminal code 347 the judge may decide to completely cancel the illegal terms of the DIP loans i.e. Tenor would get their money back plus interest but no share of the award. Or the judge may (and more likely) choose notional severance i.e. the interest and award elements are reduced to the maximum legally allowed (60% pa). However, the most likely scenario, if it was clear Tenor could lose, would be for Tenor to offer a settlement agreed with Gowling prior to judgment. (But as you know I believe Tenor have a very strong case and will win.)