There is an argument for not opting in.

The judge said that each shareholder will receive a pro rata distribution based on their shareholdings whether they opt-in or not and that the only party to benefit by more opt-ins are Gowling and that this might encourage them to pursue (unnecessary) litigation. Whilst Gowling's costs seem to be for their own account (no cost to shareholders), the cost of defending any litigation (by the company, the Monitor and by Tenor) seems likely to be coming out of our pot.

So it isn't simply a case of having nothing to lose - every dollar spent fighting Gowling (the opt-in committee) is likely a dollar less for us.

Of course without Gowling there is virtually no chance of increasing the pot.

Given that Gowling probably have sufficient opt-ins to challenge the waterfall agreement there may not be any advantage now to opt-in (but Gowling say that it is possible that opt-ins will benefit more than other shareholders).

My guess is that most shareholders when presented with the pros and cons would choose to opt-in - we are afterall high-risk takers. I view the chance of Gowling being successful as very low. I do not think this judge will risk setting a precedent which could negatively impact future loans for CCAA companies.