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Summary Report to Creditors March 2010
DISCLAIMER: Except as otherwise indicated, the information furnished herein is derived from publicly available sources and does not reflect the view of the Official Committee of Unsecured Creditors or its professionals, including Milbank, Tweed, Hadley & McCloy LLP, Quinn Emanuel Urquhart & Sullivan, LLP, FTI Consulting Inc., and Houlihan Lokey Howard & Zukin Capital, Inc. Subject to the Stipulation and Agreed Order Between the Debtors and the Committee Regarding Creditor Access to Information Pursuant to 11 U.S.C §§ 105(a), 1102(b)(3) and 1103(c) (the “Creditor Access Stipulation”) [Docket No. 498], the Committee does not guarantee or warrant the accuracy, completeness, or current nature of the information provided in this monthly report and shall not be liable for any loss or injury arising out of or caused in whole or in part by the acts, errors, or omissions of the Committee, whether negligent or otherwise, in procuring, compiling, collecting, interpreting, reporting, communicating, or delivering the information contained herein. The information contained in this report is furnished for informational purposes only and should not be construed as legal advice on any subject matter. No party reviewing this report should take or refrain from taking any action based upon the content of this report without seeking legal counsel on the particular facts and circumstances at issue from an attorney licensed in the reviewing party’s jurisdiction.
Table of Contents Page INTRODUCTION ......................................................................................................................... 1 I. CHAPTER 11 CASES....................................................................................................... 3 A. B. C. D. E. F. II. Use of Estate Assets............................................................................................... 3 Settlements............................................................................................................. 8 Relief from Automatic Stay Motions................................................................... 10 Retention of Professionals ................................................................................... 12 Case Administration Issues.................................................................................. 15 Miscellaneous ...................................................................................................... 17
SIPA PROCEEDING....................................................................................................... 20 A. B. Settlements........................................................................................................... 20 Administrative Matters ........................................................................................ 20
INTRODUCTION On September 15, 2008, and periodically thereafter (the “Petition Date”), Lehman Brothers Holdings Inc. (“LBHI”) and certain of its affiliates (collectively, the “Debtors” and together with their non-debtor affiliates, “Lehman”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (as amended from time to time, the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Court”). On September 16, 2008, the Debtors, Lehman Brothers Inc. (“LBI”), and Barclays Capital Inc. (“Barclays”) entered into an asset purchase agreement (the “Asset Purchase Agreement”) for the purchase and sale of LBI’s assets, three real properties, including the Debtors’ headquarters, and two data centers (collectively, the “Barclays Sale”). On September 17, 2008, pursuant to section 1102 of the Bankruptcy Code, the United States Trustee (the “U.S. Trustee”) appointed the Official Committee of Unsecured Creditors (the “Committee”).1 In accordance with the relevant provisions of the Bankruptcy Code, the Committee retained Milbank, Tweed, Hadley & McCloy LLP as counsel; Quinn Emanuel Urquhart & Sullivan, LLP as special counsel; FTI Consulting Inc. as financial advisor; and Houlihan Lokey Howard & Zukin Capital, Inc. as investment banker, in each case, to assist and represent the Committee in performing its statutory duties. On September 19, 2008, a proceeding under the Securities Investor Protection Act of 1970 (the “SIPA Proceeding”) was commenced against LBI. James W. Giddens (the “SIPA Trustee”) was appointed to administer the SIPA Proceeding. On September 20, 2008, the Court approved the Barclays Sale and entered concurrent orders to that effect in the Debtors’ chapter 11 cases (the “Chapter 11 Cases”) and in the SIPA Proceeding. On March 12, 2009, the Court granted Lehman Brothers Finance AG a/k/a Lehman Brothers Finance SA (“LBF”), a wholly owned non-Debtor subsidiary of LBHI subject to bankruptcy proceeding in Switzerland, recognition as a foreign main proceeding under chapter 15 of the Bankruptcy Code and dismissed LBF’s pending chapter 11 case.
The following Committee members were initially appointed: Wilmington Trust Company; The Bank of New York Mellon; Shinsei Bank, Limited; Mizuho Corporate Bank, Ltd.; The Royal Bank of Scotland, PLC; Metlife; and RR Donnelley & Sons. Pursuant to the Third Amended Appointment of Official Committee of Unsecured Creditors filed by the U.S. Trustee on February 9, 2010 [Docket No. 7034], the Committee currently consists of the following seven members: Wilmington Trust Company; The Bank of New York Mellon; Elliott Management Corp.; Mizuho Corporate Bank, Ltd.; Metlife; The Vanguard Group Inc.; and U.S. Bank, National Association.
On May 22, 2009, the Court granted Lehman Brothers Bankhaus AG, a wholly owned non-Debtor subsidiary of LBHI subject to an insolvency proceeding in Germany, recognition as a foreign main proceeding under chapter 15 of the Bankruptcy Code. On September 24, 2009, the Court granted Lehman Re, Ltd., a wholly owned non-Debtor subsidiary of LBHI subject to a compulsory winding up proceeding in Bermuda, recognition as a foreign main proceeding under chapter 15 of the Bankruptcy Code. The following report has been prepared by the Committee in accordance with the Committee’s obligation to share information with the Debtors’ unsecured creditors pursuant to section 1102(b)(3) of the Bankruptcy Code, as well as the Creditor Access Stipulation [Docket No. 498]. This report summarizes the motions resolved during the month of March 2010 in both the Chapter 11 Cases and the SIPA Proceeding, as well as the adversary proceedings commenced during such period.
CHAPTER 11 CASES Use of Estate Assets (i) Debtors’ Motion Pursuant to Sections 105 and 363 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 9019 for an Order Authorizing (i) Lehman Brothers Holdings Inc. to Enter into Restructuring of Certain Loans Made to Subsidiaries of Hilton Worldwide, Inc. (“Hilton”) and (ii) Lehman Commercial Paper Inc. (“LCPI”) to Provide Consents Related Thereto [Docket No. 7232]
In October 2007, LBHI and certain other lenders (collectively, the “Lender Syndicate”) provided affiliates of The Blackstone Group with $20.6 billion of financing (the “Financing”) in connection with their acquisition of the common stock of Hilton. The financing consisted of: (i) a senior mortgage loan (the “Mortgage Loan”) and (ii) eleven tranches of mezzanine loans designated “A” through “K” (the “Mezzanine Loans”). LBHI held (a) $460,007,413 of the Mortgage Loan, (b) $7,484,338 of Mezzanine Loan I and (c) $11,178,938 of Mezzanine Loan J (both of which Mezzanine Loans are designated as “Junior Mezzanine Loans”). In addition, LCPI had financed the investment of certain third party holders of Mezzanine Loan D through Mezzanine Loan H (the “Other Syndicate Members”), and, by the terms of these financings, (a) LCPI was the actual holder of the economic interests in these loans, and (b) its consent was required before the Other Syndicate Members could participate in any restructuring of the Financing. Though the Financing was not in default, Hilton requested that the Lender Syndicate agree to restructure certain of its terms. The proposed restructuring involved: (a) a contribution by Hilton’s parent of $800 million to pay down a portion of the Financing; (b) extensions of the maturity of the Mortgage Loan and the senior Mezzanine Loans for up to an additional 2 years, and (c) the conversion of approximately $2 billion of the Junior Mezzanine Loans to preferred equity (with 8% annual return). In return, the Lender Syndicate would get extension fees and increased interest rates. Accordingly, the Debtors requested authorization: (a) for LBHI to consent to the restructuring of the Mortgage Loan and its Mezzanine Loans and (b) for LCPI to consent to the participation of the Other Syndicate Members in the restructuring. Since LBHI held only a small fraction of the total Financing, and the other members of the Lender Syndicate previously indicated their support for the restructuring, the Debtors believed that the modifications proposed for the Mortgage Loan and the senior Mezzanine Loans could be implemented without LBHI’s vote. However, they expected that the consent of all holders of Junior Mezzanine Loans would be required for their conversion into preferred equity. Disposition: The Court granted this motion. [Docket No. 7701] 3
Debtors' Motion Pursuant to Section 363 of the Bankruptcy Code and Bankruptcy Rule 6004 for Approval of Collateral Disposition Agreement (the “Collateral Disposition Agreement”) with JPMorgan Chase Bank, N.A. (“JPMorgan”), et al. [Docket No. 7269]
JPMorgan was a clearing bank for LBI pursuant to a clearance agreement (the “Clearance Agreement”). Under the Clearance Agreement, obligations of LBI to JPMorgan were secured by liens on certain LBI accounts. Beginning in 2008, JPMorgan required LBI to post $6.1 billion of additional collateral as it increased margin requirements. By the end of July, the Lehman entities posted $8 billion of additional collateral, which included collateralized debt obligations. In August of 2008, the Clearance Agreement was amended to cover all Lehman entities that engaged in clearing activities with JPMorgan. JPMorgan required LBHI to guarantee the obligations of LBI and grant JPMorgan a security interest in cash and security accounts that LBHI maintained with JPMorgan. On September 9, 2008, at the insistence of JPMorgan, the Clearance Agreement was further amended pursuant to which LBHI entered into an additional security agreement and guaranty in favor of JPMorgan and its affiliates covering all of the liabilities of all Lehman entities to JPMorgan and its related entities, and expanded the definition of accounts. Between September 9 and September 12, 2008, pursuant to demands made by JPMorgan, LBHI posted approximately $8.6 billion in cash and money market funds as additional collateral security. JPMorgan has asserted claims against the Debtors that, in the aggregate, exceeded $29 billion prior to the application of proceeds generated from the liquidation of collateral and setoffs by JPMorgan. A substantial portion of the collateral pledged by LBHI and LBI consisted of illiquid securities relating to structured financings. These securities had an aggregate face amount in the billions of dollars. In addition, as of the Petition Date, JPMorgan held approximately $9 billion in cash and cash equivalents. According to the Debtors, these assets require long term active and effective management. The Debtors submit that a forced liquidation would be prejudicial to the creditors and would result in diminished recoveries to the estates. The Collateral Disposition Agreement contemplates provisional allowance of JPMorgan’s claims; enabling JPMorgan to apply the cash collateral to the outstanding balance of approximately $7.68 billion; approval of the payment of approximately $553 million by LBHI to satisfy the remaining deficiency; approval of LBHI’s status as the subrogee of JPMorgan vis-à-vis claims against LBI; approval of the transfer of the collateral securities to LBHI for the management and administration; and reservation of rights of all the Debtors and the SIPA Trustee as to the validity or enforceability of JPMorgan’ s claims.
Disposition: The Court granted this motion. [Docket No. 7785]
Lehman Brothers Special Financing Inc.’s (“LBSF”) Motion, Pursuant to Sections 105(a) and 363 of the Bankruptcy Code and Rule 6004 of the Bankruptcy Rules, for Authorization to Pay Administrative and Legal Fees and Expenses of Certain Special Purpose Vehicles (“SPVs”) [Docket No. 7230]
As of its petition date, LBSF was a party to a number of swap agreements (each, a “Swap Agreement”) with certain SPVs incorporated in the Cayman Islands (the “Cayman SPVs”), which served as collateral (the “Collateral”) to various series of notes (the “Notes”) issued by the Cayman SPVs. For each series of Notes, the Collateral was held by a trustee for the benefit of the respective noteholders (the “Noteholders”). LBSF’s aggregate interest in the Notes was approximately $900 million. Generally, pursuant to the indentures relating to the Notes, LBSF was entitled to payment in full before any Noteholder was paid - unless an event of default occurred under the applicable Swap Agreement; in that case, LBSF’s waterfall position was subordinated to that of the Noteholders. LBSF’s bankruptcy filing was deemed to be an event of default, and, accordingly, each Cayman SPV terminated its Swap Agreement. The majority of the trustees have redeemed their respective Notes, sold their Collateral, and distributed the proceeds to the Noteholders, treating LBSF’s payment priority as subordinated. In its January 25, 2010 decision in the adversary proceeding entitled Lehman Brothers Special Financing Inc. v. BNY Corporate Trustee Services Limited, the Court found the provisions of a similar indenture to be an unenforceable ipso facto clause under sections 365(e)(1) and 541(c)(1)(B) of the Bankruptcy Code, and ruled that any action to exercise control over the Debtors’ collateral violates the automatic stay. Based on this decision, the Debtors expressed their intention to enforce their rights under the Notes. However, the Debtors submitted that LBSF’s ability to recover would be severely impaired if the Cayman SPVs were dissolved and LBSF was forced to seek payment directly from the Noteholders. In order to maintain their existence, the Cayman SPVs had to pay annual registration fees (the “Government Fees”), as well as fees of their administrators and legal representatives. The Registrar of Companies of the Cayman Islands assesses quarterly penalties for the duration of a default in payment of the Government Fees and, unless such fees are paid (typically, after 12 months have elapsed after the due date) may strike a Cayman SPV from the Cayman Islands register of companies. To prevent this result, LBSF sought authority to pay, on behalf of the Cayman SPVs, (i) $586,920 to Maples Finance Limited as administrator, and (ii) $103,242 to the Cayman Islands law firm, Maples and Calder, for legal services. Of these fees, $104,398 were for services performed prepetition. Additionally, LBSF sought authorization to pay similar fees and
expenses of the Cayman SPVs in the future as necessary (upon notice to the Committee) for as long as necessary to finalize settlements with the Cayman SPVs. Disposition: The Court granted this motion. [Docket No. 7787]
Debtors’ Motion Pursuant to Sections 105(a) and 362 of the Bankruptcy Code for Approval of Certain Restrictions and Procedures Applicable to Transfers of the Debtors Securities [Docket No. 6699]
The Debtors sought authorization to establish certain restrictions and procedures applicable to trading in certain claims against them (collectively, the “Securities”) in order to protect the potential value of their consolidated net operating loss carryforwards (“NOLs”) and certain other tax attributes (together with NOLs, the “Tax Attributes”). The Debtors sought to preserve their Tax Attributes upon emergence to reduce the U.S. federal income tax liabilities (they estimated that their aggregate NOLs were approximately $48 billion). However, the ability of the reorganized Debtors to use the Tax Attributes to offset future taxable income is subject to certain statutory limitations—namely, Sections 382 and 383 of the Internal Revenue Code of 1986 (the “Tax Code”). For purposes of Section 382 of the Tax Code, a corporation’s use of its NOLs is limited in the event of an “ownership change.” An “ownership change” occurs when the percentage of a corporation’s equity held by one or more “5% shareholders” increases by more than 50 percent above such shareholders’ lowest stock ownership (calculated over a statutorily prescribed testing period, usually three years). If there has been an “ownership change” in connection with the implementation of a plan of reorganization, the Debtors’ ability to use any NOLs existing on the plan effective date would be limited, for each taxable year, to an amount equal to the product of (i) the corporation’s value immediately after the ownership change and (ii) a published rate of return (called the long-term tax-exempt rate). Such an ownership change will likely occur if the Debtors’ reorganization involves the issuance or distribution of stock in satisfaction of any of the Securities. The general rule of Section 382 may be substantially relaxed in the bankruptcy context. Tax Code Section 382(l)(5) (the “(l)(5) Exception”) excepts a corporation that undergoes an ownership change by reason of the confirmation of a chapter 11 plan of reorganization from the NOL limitation discussed above. To qualify for the (l)(5) Exception, continuing shareholders and “qualified creditors” of the debtor must own, as a result of their having been shareholders and/or creditors of the debtor immediately before the ownership change, at least 50% of the reorganized debtor’s stock immediately after the ownership change. For this purpose, a creditor is a “qualified creditor” only to the extent its stock in the reorganized debtor is received in full or partial satisfaction of the indebtedness and either (i) the creditor held such indebtedness 6
continuously during the 18 month period immediately prior to the bankruptcy filing or (ii) the indebtedness arose in the ordinary course of the debtor’s business and the creditor at all times held the beneficial interest in that indebtedness. To preserve maximum flexibility to qualify for the (l)(5) Exception, debtors often seek and obtain certain restrictions on the ability of parties to buy and sell claims: the goal being to prevent the trades from causing the claim to cease being held by a “qualified creditor” for purposes of the (l)(5) Exception. Accordingly, the Debtors sought authorization to implement trading restrictions and procedures (the “Procedures”), effective nunc pro tunc to the date of their filing of this motion, as follows: • The Debtors may, in consultation with the Committee, (i) publish a notice disclosing the filing of a plan and the potential issuance of a Sell-Down Notice,2 (ii) identify the classes of Securities that are potentially subject to the Sell-Down Notice, and (iii) identify the applicable Threshold Amounts; Any person or entity that is or becomes a Substantial Securityholder must file with the Court and serve on the Debtors and the Committee notice of such status; If the Debtors determine that it is necessary to require the sale or transfer of a portion of the Securities held by a Substantial Securityholder, the Debtors must file a motion for approval of the issuance of a Sell-Down Notice. The Substantial Securityholder must serve a notice of compliance on the Debtors and the Committee. Failure to comply will result in forfeiture of the right to receive stock attributable to the Securities that the Substantial Securityholder was required to sell; The Debtors and Committee must receive notice of any transfer or acquisition of Securities that would result in an increase in amount of Securities held by a Substantial Securityholder, or an entity becoming a Substantial Securityholder, which transfer or acquisition must be approved by the Debtors in consultation with the Committee; and Any Substantial Securityholder effecting a sale of Securities pursuant to a Sell-Down Notice must notify the acquirer of these Procedures.
Disposition: The Court granted this motion. [Docket No. 7826]
“Sell-Down Notice” means a notice that any person or entity (each, a ”Substantial Securityholder”) that beneficially owns, directly or indirectly, an aggregate dollar amount of Securities that would entitle it to receive 4.5% or more of the reorganized Debtors’ equity (the “Threshold Amount”) must sell, cause to sell or otherwise transfer all or a portion of its beneficial ownership of Securities in excess of the Threshold Amount.
Settlements Second Stipulation and Agreed Order with Respect to Non-Related Contracts Posted for Assumption and Assignment in Connection with Asset Purchase Agreement [Docket No. 7267]
The Asset Purchase Agreement memorializing the Barclays Sale provided that certain contracts related to the assets purchased by Barclays could be designated by Barclays as “Purchased Assets.” Such contracts were identified by Barclays and listed on the Debtors’ website (the “Closing Date Schedules”). Pursuant to this stipulation, the parties sought an order clarifying that certain contracts identified on the Closing Date Schedules were unrelated to the assets purchased by Barclays and were not intended to be assumed and assigned to Barclays (collectively, the “Unrelated Contracts”). Additionally, LBHI sought to assume those Unrelated Contracts to which it was a party and assign them to Aurora Bank FSB (f/k/a Lehman Brothers Bank FSB, “Aurora”). Under the stipulation, the Unrelated Contracts would return to the status quo ante between the relevant counterparty and LBHI, LBI or Aurora (as applicable) as if they had never been listed on the Closing Date Schedules, and the of all parties would be preserved. Furthermore, the inclusion of any Unrelated Contracts on the Closing Date Schedules would not give rise to (i) any administrative expense claim or damage claim against any of the Debtors, LBI or their respective estates, or (ii) any obligation or liability of Barclays, including for payment of cure amounts, with respect to such Unrelated Contracts. Disposition: The Court entered this stipulation. [Docket No. 7829]
Debtors’ Motion Pursuant to Section 105(a) of the Bankruptcy Code and Bankruptcy Rules 3007 and 9019(b) for Approval of (i) Claim Objection Procedures and (ii) Settlement Procedures [Docket No. 6374]
In order to expedite and streamline the process of reconciling the more than 65,000 claims filed against the Debtors (the “Filed Claims”) as well as the more than 46,000 claims scheduled by the Debtors (the “Scheduled Claims” and, together with the Filed Claims, the “Claims”), the Debtors sought approval of procedures to object to the Filed Claims (the “Objection Procedures”) and to settle certain claims without further Court approval (the “Settlement Procedures”). The Objection Procedures were approved in January. Please see the January 2010 Monthly Report for a full discussion of the Objection Procedures. The proposed Settlement Procedures were as follows: (i) The Debtors would be authorized to settle Claims without prior approval of the Court or any other party in interest whenever the aggregate amount to be allowed for an individual Claim (the “Settlement Amount”) is equal to or less than $15
million; provided, however, that if: (a) the Settlement Amount is (x) between $5 million and $15 million and (y) greater than the amount of the Scheduled Claim or 75% of the amount listed on the proof of claim; (b) the Settlement Amount is between $5 million and $15 million for a Claim that neither is a Scheduled Claim nor has any amount listed on the proof of claim; (c) the proposed settlement involves a person that the Debtors discover was employed by the Debtors on or after September 15, 2007 or an entity unaffiliated with the Debtors for which a person that the Debtors discover was employed by the Debtors on or after September 15, 2007 is materially involved in the negotiations of the Settlement Amount; (d) the proposed settlement involves an entity against which the Debtors believe they have an outstanding claim pursuant to sections 547 or 548 of the Bankruptcy Code in an amount greater than $5 million; or (e) the aggregate of (i) the Settlement Amount and (ii) all Settlement Amounts in regards to the same claimant in the 6-month period preceding the proposed settlement (the “Aggregated Settlement Amount”), exceeds $15 million, the Debtors will submit the proposed settlement to the Committee in accordance with clause (ii). (ii) Where the proposed settlement (a) involves a Settlement Amount between $15 million and $75 million or (b) must be submitted to the Committee in accordance with clause (i) above, the Debtors will submit the proposed settlement to the Committee, together with certain other information (the “Settlement Summary”). If the Committee timely objects, the Debtors may either (a) renegotiate the settlement and submit a revised Settlement Summary to the Committee or (b) file a motion with the Court seeking approval of the settlement. If there is no timely objection made by the Committee, the Debtors may proceed with the settlement. Where the Debtors agree to resolve a Claim for a Settlement Amount that is more than $75 million, or if the Aggregated Settlement Amount is more than $75 million, the Debtors are required to seek the approval of this Court.
On a quarterly basis, the Debtors will file with the Court a report of all settlements, which will set forth the names of the parties with whom the Debtors have settled, the relevant proofs of claim numbers, the types of Claims, and the amounts for which such Claims have been settled. On a monthly basis, the Debtors will provide to counsel to the Committee a report of all settlements that the Debtors have entered pursuant to clause (i), containing the same information. Disposition: The Court approved the Settlement Procedures, having carved Bundesverbank out from application thereof [Docket No. 7936].
Stipulation, Agreement and Order (i) Dismissing DnB Nor Bank ASA’s (“DnB”) Appeal of the Bankruptcy Court’s Order Denying its Motion for Allowance and Payment of Administrative Expense Claim and Allowance of Setoff of Such Claims and (ii) Granting Other Related Relief [Docket No. 7101]
DnB, LBHI and Lehman Brothers Commodities Inc. (“LBCS”) reached agreement to settle DnB’s appeal (the “Appeal”) of the denial of its administrative expense claim on the following terms: • DnB will transfer (i) 7,966,031.34 NOK, plus all accrued interest to LBHI and (ii) the current post-petition balance in the LBCS account (approximately 10,242,642.79 NOK, plus all accrued interest to LBCS; DnB’s general unsecured non-priority claim in the amount of $10,341,552.34 will be allowed against LBHI; and The Appeal will be dismissed with prejudice.
Disposition: The Court entered this stipulation. [Docket No. 7694]
Relief from Automatic Stay Motions Motion by Merrill Lynch International (“ML”) and Certain of its Affiliates for Entry of an Order (A) Confirming Ability to Deliver Notice of Acceleration with Respect to Certain Notes Issued by Foreign Affiliate without Relief from the Automatic Stay or (B) Granting Limited Relief from the Automatic Stay to Deliver such Notice. [Docket No. 5958]
ML requested either (i) confirmation that it could deliver to LBHI notices of acceleration (the “Notices”) of the Notes with respect to Lehman Brothers Treasury Co., B.V. (“LBT”) without violating the automatic stay; or (ii) limited relief from the automatic stay to deliver the Notices to LBHI. ML asserted that delivery of the Notices to LBHI was necessary to effectuate the acceleration of the Notes. The amount due on the Notes varied, depending on whether it was the amount due at maturity (the “Final Redemption Amount”) or an amount due upon acceleration (the “Early Redemption Amount”). With respect to some series of Notes, the Early Redemption Amount may have been greater than the Final Redemption Amount. Acceleration required that Notices be sent to both LBT and LBHI by the holders of 25% or more in principal amount of the applicable Notes. LBT was declared bankrupt by a Dutch court on October 8, 2008, and the bankruptcy trustee appointed by the Dutch court issued preliminary formulas for calculating the maximum admissible amount (the “Admissible Amount”) of claims against LBT on account of the Notes under the Dutch Bankruptcy Act. According to the Dutch trustee, with respect to any Notes that were scheduled to mature later than the first anniversary of the commencement of LBT’s bankruptcy (the “First Anniversary”), the Admissible Amount was calculated by discounting to present value, from the scheduled maturity date to the First Anniversary,
all future payments with respect to such Notes. However, with respect to any Notes that are accelerated after the First Anniversary, the Admissible Amount would be calculated by discounting to present value, from the date of acceleration to the First Anniversary, the Early Redemption Amount of such Notes. Disposition: The Court entered an agreed-to order that modified the automatic stay permitting ML to issue the Notices solely for purposes of determining ML’s claims against LBT in the Dutch Proceeding. [Docket No. 7691]
Debtors’ Motion Pursuant to Sections 105(a) and 362 of the Bankruptcy Code for an Order Enforcing the Automatic Stay Against and Compelling Payment of Post-Petition Funds by First National Bank [Docket No. 6740]
The Debtors sought to compel First National Bank, a division of FirstRand Bank Limited (collectively, “FirstRand”) to release post-petition deposits in a generaldeposit account belonging to LBHI (the “FirstRand Account”) denominated in South African Rand (“ZAR”). LBHI claimed that, as of the Petition Date, the FirstRand Account balance was approximately ZAR 28.3 million, with additional post-petition transactions on the Petition Date of ZAR 12.2 million. The Debtors alleged that between September 16, 2008 and November 18, 2009, an additional ZAR 552,000 (approximately $74,000) was deposited in the FirstRand Account (the “Post-Petition Funds”). Shortly after LBHI’s filing, FirstRand placed an administrative hold on the FirstRand Account. LBHI has been inable to access any of the funds in the FirstRand Account, including the Post-Petition Funds. Accordingly, the Debtors sought entry of an order compelling FirstRand to release the administrative freeze on, and to pay to LBHI, the Post-Petition Funds. The Debtors contended that none of the Post-Petition Funds could be used to effect a setoff and, thus, the administrative freeze constituted a violation of the automatic stay. The parties’ negotiations resulted in a compromise and settlement, the terms of which are as follows: • FirstRand was to transfer to LBHI the current agreed upon post-petition balance in the Account (ZAR 593,319.87), plus any additional postpetition deposits or transfers and all accrued interest thereon; FirstRand would not take any action to restrict or prevent LBHI from withdrawing any future postpetition deposits, credits or accrued interest in the FirstRand Account;
LBHI would withdraw the motion; and FirstRand’s asserted rights of setoff with respect to the certain alleged prepetition funds and LBHI’s rights to contest, dispute, object to or otherwise challenge such rights were fully preserved.
Disposition: The Court entered this stipulation. [Docket No. 7698]
Stipulation, Agreement, and Order Between Lehman Brothers Special Financing Inc. and Nomura International PLC (“Nomura”) Providing for Relief from the Automatic Stay [Docket No. 7205]
On March 11, 2009, the Court entered an Order Pursuant to Sections 105 and 364 of the Bankruptcy Code Authorizing the Debtors to Grant First Priority Liens in Cash Collateral Posted in Connection with the Hedging Transactions the Debtors Enter into Through Certain Futures and Prime Brokerage Accounts [Docket No. 3047] (the “Hedging Order”). The Hedging Order authorized the Debtors to grant first priority liens to third parties on collateral (the “Collateral”) posted in connection with hedging transactions (the “Hedging Transactions”) to reduce the risk associated with the market fluctuations that could cause the value of certain prepetition derivatives contracts to deteriorate. Pursuant to the stipulation, LBSF and Nomura were seeking a court order modifying the automatic stay for the limited purpose of permitting Nomura to exercise its rights with respect to the Collateral posted in connection with the Hedging Transactions. Disposition: The Court entered this stipulation. [Docket No. 7475]
Retention of Professionals Debtor’s Motion Pursuant to Sections 105(a) and 363(b) of the Bankruptcy Code for Authorization to Engage Omnium LLC (“Omnium”) as Fund Administrator [Docket No. 7235]
The transition services agreement among the Debtors and Barclays (the “TSA”), pursuant to which the Debtors had access to the former Lehman data processing and workflow automation support services (the “Services”) was set to expire on March 22, 2010. The Debtors claimed that they required access to the Services beyond such date and on August 5, 2009, with the Court’s approval, they entered into an interim consulting agreement with Omnium, which was intended to allow the Debtors to transition the Services to a third party vendor. The Debtors represented that such outsourcing could save the estates an average of $13,500,000 annually through 2011.
By this motion, the Debtors sought authority to enter into a master services agreement (the “MSA”) to formalize a more permanent arrangement with Omnium. The MSA provided that Omnium would bill the Debtors at an hourly rate that range from $225 an hour for staff members to $750 for managing directors during the implementation phase, and from $175 to $500 after the initial transition. In addition, Omnium and its employees and agents will be reimbursed for all reasonable expenses. The Debtors also agreed to indemnify Omnium, except for claims arising from Omnium’s negligence, gross negligence, willful misconduct or failure to perform its obligations under the MSA. In addition, the extent of indemnification liability over any rolling 12 month period will be limited to the amount equal to the charges paid by LBHI to Omnium for the 12 month period immediately preceding the date the relevant claim first arises (however, this limitation does not apply to damages that result from the violation of confidentiality agreements, fraud, gross negligence or willful misconduct, including the willful or grossly negligent violation of laws). Disposition: The Court granted this motion. [Docket No. 7812]
Motion of the Debtors Pursuant to Section 327(e) of the Bankruptcy Code and Rule 2014 of the Federal Rules of Bankruptcy Procedure for Authorization to Amend the Order Approving Retention of Bingham McCutchen LLP (“Bingham”) as Special Counsel to the Debtors, Nunc Pro Tunc to the Engagement Date [Docket No. 7175]
On August 25, 2009, the Court entered an order (the “Retention Order”) authorizing Bingham’s retention as special tax counsel to the Debtors. By this motion, the Debtors sought to expand Bingham’s retention to include services related to certain government investigations of tax-related matters arising from transactions between the Debtors and foreign counterparties nunc pro tunc to December 7, 2009. In connection with its retention, Bingham, collectively with Bingham’s predecessor, McKee Nelson LLP, has been paid $8,805,321.75 in fees and $425,549.18 in reimbursements through October 31, 2009. The Debtors anticipated that Bingham will incur less than $25,000 per month in additional fees and expenses related to these supplemental matters. Disposition: The Court granted this motion. [Docket No. 7491]
Application of the Debtors Pursuant to Section 327(e) of the Bankruptcy Code and Rule 2014 of the Federal Rules of Bankruptcy Procedure for Authorization to Employ and Retain Kleyr Grasso Associes (“Kleyr Grasso”) as Special Counsel, Nunc Pro Tunc to the Engagement Date [Docket No. 7360]
The Debtors sought entry of an order to employ and retain Kleyr Grasso, a Luxembourg law firm, as special counsel to the Debtors, effective nunc pro tunc to June 1, 2009 in relation to issues/questions that arose, or may arise, in relation to the Debtors’ Luxembourg affiliates (the “Luxembourg Matters”). Kleyr Grasso previously performed legal services on behalf of the Debtors as an ordinary course professional (“OCP”) in accordance with the Order Pursuant to Sections 105(a), 327, 328 and 330 of the Bankruptcy Code Authorizing the Debtors to Employ Professionals Utilized in the Ordinary Course of Business, dated November 5, 2008 (Docket No. 1394, the “OCP Order”). Kleyr Grasso’s fees and expenses in the aggregate reached the $1 million compensation cap for professionals established by the OCP Order. Accordingly, the Debtors now sought to retain Kleyr Grasso as special counsel. The hourly billing rates for Kleyr Grasso professionals expected to spend significant time on the Luxembourg Matters are €385 for partners, €275 for senior associates, €235 for associates and €175 for junior associates. Disposition: The Court granted this application. [Docket No. 7825]
Debtors’ Application Pursuant to Section 327(a) of the Bankruptcy Code for an Order Authorizing the Retention and Employment of Deloitte Tax LLP (“Deloitte”) as Tax Service Providers Nunc Pro Tunc to November 1, 2008 [Docket no. 7135]
The Debtors sought to retain Deloitte to provide the following services: (i) analysis of certain sales and use tax filings for the years 2004-2008; (ii) identification of instances of overpayment of either sales or use taxes by the Debtors; (iii) preparation of claims for refund of any identified overpayments; (iv) interacting with the appropriate state and local taxing authorities; (v) assisting the Debtors in their filing of a zero fixed base percentage with respect to their claim of a research and development credit pursuant to Internal Revenue Code Section 41; (vi) assistance with tax matters related to meal and entertainment expenditures for 2008; (vii) assistance with certain matters on which Deloitte has previously advised the Debtors, including state income sourcing issues arising from the Debtors’ principal trading activities; (viii) the maintenance (from a tax perspective) of any licenses, registrations, or certificates with respect to a particular business line; (ix) tax matters related to FIN 48 issued by the Financial Accounting Standards Board; (x) tax matters related to specific transactions for which Deloitte had previously advised the Debtors; and (xi) other tax services as requested by the Debtors and agreed to by Deloitte. Deloitte would be compensated on an hourly basis (with rates ranging from $965 for partners to $200 for staff members), and would be entitled to reimbursement of expenses. In addition, Deloitte’s engagement letters provided that it would be entitled to an indemnification from the Debtors, except for claims arising out of the gross negligence, bad faith or intentional misconduct of Deloitte or its subcontractors. 14
Deloitte would be required to file fee applications and otherwise comply with the same requirements and procedures relating to compensation as other professionals retained in the Chapter 11 Cases. Disposition: The Court granted this motion. [Docket No. 7824]
Debtors’ Motion to Amend Order Authorizing Debtors to Employ Professionals Utilized in the Ordinary Course of Business [Docket No. 7185]
The Debtors requested that the OCP Order be amended such that a new sub-category of ordinary course professionals be established (the “De Minimis OCPs”) that would not be required to file an Ordinary Course Professional Affidavit or a Retention Questionnaire (collectively, the “OCP Documentation”). The OCP Order provided that the Debtors were authorized to retain OCPs whose services did not result in fees and disbursements in excess of $150,000 per month and $1 million in the aggregate for the period from retention through the conclusion of the Chapter 11 Cases (the “Chapter 11 Period”) without filing individual retention applications, and to compensate such OCPs without their filing formal fee applications. The Debtors represented that they anticipate the need to retain at least 500 additional OCPs, primarily in connection with liquidating real estate assets throughout the United States. The Debtors submitted that requiring each such OCP to file the OCP Documentation would be impractical, costly, and administratively burdensome. Accordingly, the Debtors requested that the OCP Order be amended such that the OCPs whose services do not result in fees and disbursements in excess of $30,000 per month and $150,000 in the aggregate for the Chapter 11 Period may be retained and compensated without requiring such De Minimis OCPs to file the OCP Documentation. Disposition: The Court granted this motion. [Docket No. 7822]
Case Administration Issues Motion of the Debtors and Certain Creditors to Clarify or Amend the Debtors' Supplemental Notice and the Bar Date Order with Respect to Claims Relating to the Lehman Programs Securities Issued by LBHI [Docket No. 6858]
Credit Suisse AG, Goldman, Sachs & Co., Merrill Lynch & Co. Inc., Morgan Stanley & Co. and The Royal Bank of Scotland plc (the “Moving Creditors”) have asserted that an ambiguity exists in the Court’s Order Establishing the Deadline for
Filing Proofs of Claim, Approving the Form and Manner of Notice Thereof and Approving the Proof of Claim Form (the “Bar Date Order”) and related notices with respect to the treatment of the Lehman Programs Securities Issued by LBHI (the “LP Securities”). Specifically, under the Bar Date Order, distributions from LBHI on account of the LP Securities are to be made to the entities that have filed proofs of claim on account of such securities and not the actual holders of the LP Securities. However, the Debtors’ Supplemental Information Regarding Claims Based on Lehman Programs Securities and Procedures for the Trading of Claims Filed Against Lehman Brothers Holdings Inc. Based on Lehman Programs Securities (the “Supplemental Notice”) stated that LBHI will amend its Schedules to provide that none of the LP Securities will be listed as “contingent, unliquidated or disputed,” with the result that their holders would have allowed claims without the need to file proofs of claim. Thus, the Moving Creditors asserted that ambiguity existed as to whether proofs of claim based on the LP Securities or the securities themselves represent a right to a distribution from LBHI’s estate. To remedy this ambiguity, the Moving Creditors requested that the Court clarify or amend the Supplemental Notice and the Bar Date Order. Disposition: The Court granted this motion. [Docket No. 7702]
Motion of Lehman Brothers Holdings Inc. and its Affiliated Debtors for an Order Extending the Time to File a Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code [Docket No. 7355]
While the Debtors acknowledged that, under the revised Bankruptcy Code section 1121, they were not entitled to any further extensions of the exclusive period to file their plan of reorganization, which was to expire on March 15, 2010, they asserted that filing the disclosure statement with respect to such plan at the same time was not possible or productive. Given the size and complexity of the Chapter 11 Cases and the numerous contingencies that needed to be resolved, and numerous constituencies with which the Debtors must negotiate, the Debtors anticipated that any plan they may file will need to be modified and amended in various respects. In addition, the Debtors stated that, not having had access to the Examiner’s report, they could not anticipate what changes to the plan and the disclosure statement may be required once they have had a chance to review this document. Thus, they maintained that spending tremendous resources that would be required to complete the disclosure statement by March 15, 2010, only to have to amend it soon thereafter, would not be productive. Accordingly, the Debtors sought an extension of time to file their disclosure statement.
Disposition: The Court granted this motion. [Docket No. 7696]
Motion of Lehman Brothers Holdings Inc. to Amend the Order Authorizing Debtors to Establish Procedures to Sell or Abandon De Minimis Assets [Docket No. 6710]
The previously approved [Docket No. 4021] procedures for sale and abandonment of de minimis assets (the “Existing Procedures”) allow the Debtors to (a) sell assets with a value under $300,000 without notice to any parties (the “Non-Notice Assets”); and (b) sell assets with a value greater than $300,000 but less than $2,000,000 upon ten days notice to certain parties, including the Committee (the “Noticed Assets”). The Existing Procedures also require the Debtors to file monthly reports with the Court regarding the Noticed Assets. The Debtors represented that LBHI held title to approximately 500 residential and commercial properties (primarily single family residences) acquired as a result of non-performing real estate loans (the “Properties”). Due to their low value and the prohibitive cost of transferring them into foreclosure SPEs, none of the other real estate protocols apply to their disposition. As a result, the Debtors have been disposing of properties in this 500-asset pool pursuant to the Existing Procedures, and that disposing of such properties pursuant to the Noticed Assets procedure results in a significant transactional risk because potential purchasers are often unwilling to make a firm offer if the sale cannot be closed quickly. Accordingly, the Debtors sought authority to sell the Properties with a value under $850,000 as Non-Notice Assets. To the extent such Properties have a value over $300,000, the Debtors proposed to include such Properties in their monthly report regarding the disposition of the Noticed Assets. Additionally, the Debtors claimed that the market for many Properties is so depressed that sales would not yield reasonable returns. For such situations, the Debtors sought authority to enter into short-term leases of up to one year. Disposition: The Court granted this motion. [Docket No. 7958]
Miscellaneous Motion of U.S. Bank National Association, as Trustee, Pursuant to Section 105(a) of the Bankruptcy Code Authorizing (I) the Withdrawal of Neuberger Berman Fixed Income LLC as the Investment Manager of Lehman Brothers ABS Enhanced Libor, Ltd.; (II) the Withdrawal of the Directors of Lehman Brothers ABS Enhanced Libor, Ltd. and the Replacement of such Directors with 17
Directors Designated by TCW Asset Management Company; (III) the Transfer of the Rights to manage Lehman Brothers ABS Enhanced Libor, Ltd.’s Portfolio to TCW Asset Management Company; and (IV) the Exchange of Units in Lehman Brothers ABS Enhanced Libor Fund for Shared in Lehman Brothers ABS Enhanced Libor, Ltd. [Docket No. 6811] U.S. Bank National Association (“USB”) served as the trustee under several indentures, pursuant to which various special purpose entities issued secured notes (the “Notes”) to investors (the “Noteholders”). The Notes were alleged to be secured by interests in the Lehman Brothers ABS Enhanced LIBOR Fund (the “Feeder Fund”), which invested in the Lehman Brothers ABS Enhanced LIBOR, Ltd. (the “Master Fund”), whose portfolio consisted primarily of high quality asset-backed securities. Neuberger Berman Fixed Income LLC (“NBFI”) currently serves as investment manager for the Master Fund. Due to the financial crisis, in March 2009, the Master Fund directors decided to terminate the investment activities of the Master Fund and effect an orderly liquidation of its assets. However, USB requested that NBFI not liquidate the Master Fund and instead have its assets actively managed. The Noteholders then selected TCW Asset Management Company (“TCW”) as the replacement Master Fund investment manager. Accordingly, USB sought authority to have NBFI replaced with TCW. Thereafter, the interests of the Feeder Fund, presently pledged to USB, would be replaced with the shares of the Master Fund, TCW would designate the Master Fund’s new directors, and the Feeder Fund would subsequently be wound up by NBFI (with expenses to be borne by the Master Fund). Disposition: The Court granted this motion. [Docket No. 7830]
Motion of Elliot Management Corp. (“Elliott”) for the Entry of an Order Approving Specified Information Blocking Procedures and Permitting Trading of Claims Against the Debtors Upon Establishment of a Screening Wall [Docket No. 7407]
Elliot sought a declaration that it could continue trading claims against LBHI, including (i) “securities” as defined in Section 2(a)(1) of the Securities Act of 1993 and (ii) bank debt (collectively, the “Covered Claims”), without breaching its fiduciary duties as Committee member. Elliot noted that, while it owed certain fiduciary duties to the Debtors’ general unsecured creditors, it also owed a fiduciary duty to maximize returns to its clients through trading securities. Thus, if Elliot were barred from trading the Covered 18
Claims during the pendency of the Chapter 11 Cases, it would risk losing beneficial investment opportunities for itself and its clients, and, thus, could breached its fiduciary duty to its clients. Alternatively, if Elliot is compelled to resign from the Committee because of its inability to trade for the benefit of itself and its clients, its interests may be compromised by virtue of taking a less active role in the reorganization process. Elliot proposed establishing certain procedures to isolate its trading activities from its activities as a member of the Committee (collectively, the “Screening Wall”). Elliot proposed that (a) its employees who work with the Committee (“Elliot Committee Personnel”) would maintain all files and information obtained from the Committee in secured cabinets inaccessible to its other employees, (b) Elliot Committee Personnel would not receive any information regarding Elliot’s trades in the Covered Claims, and (c) Elliot Committee Personnel would not directly or indirectly share any non-public information received from Committee activities. Disposition: The Court granted this motion. [Docket No. 7690]
Examiner’s Motion to Establish Procedures to Unseal the Examiner’s Report [Docket No. 7026]
On February 8, 2010, the Court granted the Examiner’s ex parte motion to file the report of his investigations (the “Report”) under seal based on the Examiner’s representation that the Report contained privileged and confidential information (the “Protected Information”) that was obtained pursuant to protective orders and confidentiality agreements with certain parties in interest (the “Protected Parties”). The Protected Information, according to the Examiner, was so extensively “quoted, paraphrased or otherwise divulged” that it was not practical to file a redacted version of the Report. On the other hand, the Examiner acknowledged that the Report should be eventually publicly available, and so he filed this motion in which he asked the Court to establish proper procedures for the unsealing of the Report. The proposed procedures provided that: (i) the Protected Parties could file objections to the unsealing of the Report, and such objections must include a detailed description of the basis for the claim of privilege or confidentiality; (ii) the Protected Parties that do not file a timely objection are deemed to have consented to the unsealing of the Report; (iii) the Examiner will work to resolve any timely objections, and will file responses to the unresolved objections; (iv) a hearing on the unresolved objections will be held; and (v) once all objections are resolved, the Report will be unsealed, provided that it will be redacted to the extent that any Protected Information is found by the Court to be entitled to nondisclosure. The Examiner represented that the process of contacting the Protected Parties in an effort to obtain their consent to unseal the Report and address their concerns over the disclosure of the Protected Information would take significant time, and, short of
obtaining the consent of 100 percent of the Protected Parties, the Examiner would not be able to unseal the Report on his own. Disposition: The Court granted this motion [Docket No. 7530]
SIPA PROCEEDING Settlements (i) Stipulation and Order in Connection with the Return of Certain Cash and Securities and the Final Closeout of Certain Outstanding Loans between Lehman Brothers Inc. and National Bank Financial Inc. (“NFB”) [Docket No. 2776]
LBI and NBF agreed that various loans between the parties would be closed out, collateral would be returned to LBI, and NBF would pay LBI a sum of $CAD 1,330,094.00. Disposition: The Court entered this stipulation. [Docket No. 2895]
Stipulation and Order in Connection with the Final Closeout of Certain Outstanding Transactions between Lehman Brothers Inc. and CoBank Agricultural Credit Bank (“CoBank”) [Docket No. 2762]
Prior to the commencement of the SIPA Proceeding, LBI and CoBank entered into a transaction for the sale of certain private placement securities to CoBank (the “Transaction”). The SIPA Trustee and CoBank wished to close out the Transaction, and the parties agreed that to close out the Transaction upon CoBank paying $28,470,600 to the SIPA Trustee.
Disposition: The Court entered this stipulation. [Docket No. 2893]
Administrative Matters (iii) Motion for Order Approving Trustee’s Allocation of Property of the Estate [Docket No. 1866]
The SIPA Trustee filed this motion to begin the process of fixing, or reasonably estimating, the amount of customer property (“Customer Property”) to be
made available on a priority basis to satisfy customer claims. The SIPA Trustee noted that under SIPA, customer property includes: • • • • Securities held for customers pursuant to SEC Rule 15c3-3; Cash segregated for customers in a special reserve account “for the exclusive benefit of customers” pursuant to Rule 15c3-3; Assets derived from or traceable to customer property; and Resources provided through the use or realization of customer-related debit items.
The SIPA definition also includes any other property which, upon compliance with applicable laws, rules and regulations, would not have been set aside or held for the benefit of customers. Thus, to the extent that LBI had not maintained cash and securities in compliance with Rule 15c3-3 prior to the Filing Date, the SIPA Trustee is required to allocate property to remedy such non-compliance. The SIPA Trustee stated that the majority of the property under his control fell under the first four of the above categories. Additionally, the SIPA Trustee alleged that there were significant lapses in LBI’s compliance with the customer protection requirements, which allegedly required augmenting the customer estate by at least $4.9 billion. The SIPA Trustee asserted that the following items represented shortfalls in LBI’s compliance with its obligations to set aside or hold property for the benefit of customers and justified treatment and allocation as part of Customer Property: • • • • • • Fixed Income Division Accounts (“FID Accounts”); Account coding errors; Assets subject to the administration of Lehman Brothers International (Europe) (“LBIE”); Deposits with the Options Clearing Corporation (“OCC Deposits”); Customer cash claimed by LBIE; and Customer property exposed to seizure during pre-filing date withdrawals.
The SIPA Trustee requested that the Court enter an order (i) approving the SIPA Trustee’s determinations regarding the assets identified as Customer Property; (ii) authorizing the SIPA Trustee to allocate any property of LBI that the SIPA Trustee determined would, upon compliance with applicable laws, rules and regulations have been set aside or held for the benefit of customers to prevent shortfalls, and (iii)
authorizing the SIPA Trustee to make interim distributions of the Customer Property to satisfy allowed net equity claims of LBI customers. Disposition: The Court granted only part of the relief requested by the SIPA Trustee. The Court ordered that only the following items represented shortfalls in LBI’s compliance with its obligations and justified treatment and allocation as having equivalent value as Customer Property within the meaning of SIPA: (i) FID Accounts; (ii) account coding errors; (iii) assets subject to the administration of LBIE; and (iv) customer property exposed to seizure during pre-filing date withdrawals. The Court also ordered that the SIPA Trustee make an application for and obtain the Court’s approval prior to making future distributions of Customer Property (including any property of LBI allocated as Customer Property pursuant to the order). [Docket No. 2743]
Trustee’s Motion for an Order, Pursuant to Section 105(a) of the Bankruptcy Code, Approving and Authorizing Amended Procedures for the Return of Misdirected Wires [Docket No. 2765]
Due to the number of new and pending requests for the return of misdirected wire transfers, the SIPA Trustee sought to enhance the efficiency of the return process by amending the procedures that are currently in place and adding new procedures. The proposed procedures included: • Increasing the de minimis wire threshold to allow the SIPA Trustee to return transfers without court order ranging in amounts from $50,000 to $250,000; Allowing the SIPA Trustee to charge a service fee for effectuating returns equal to 1% of the return amount up to a maximum surcharge of $5,000 per return; Allowing the SIPA Trustee to treat outstanding misdirected wire claims by non-responsive parties as disallowed and expunged; and Allowing the SIPA Trustee to preserve and effectuate setoff rights against the amount of any returns due to parties who are indebted to LBI.
Disposition: The Court granted this motion. [Docket No. 2876]
Motion to Authorize Trustee’s Motion for an Order Establishing Procedures Governing Claims Asserted and Adversary Proceedings
Commenced by Trustee Pursuant to 11 U.S.C. 544, 547, 548 and 550 [Docket No. 2554] The SIPA Trustee sought entry of an order establishing procedures to efficiently administer claims asserted and avoidance proceedings commenced by the SIPA Trustee (each an “Avoidance Proceeding”). The SIPA Trustee’s proposed procedures included: first, procedures related to pretrial conferences, discovery and motion practice (the “Pretrial Procedures”); and second, settlement procedures (the “Settlement Procedures”). The SIPA Trustee’s proposed Pretrial Procedures include the following: • • Bankruptcy Rule 7026(f) (requiring the parties to meet and confer on a discovery plan) would not be applicable; No initial pretrial conference would be held pursuant to Bankruptcy Rule 7016 and, accordingly, the summons filed and served by the SIPA Trustee will not include a date for a pretrial conference; Bankruptcy Rule 7026(a)(1) initial disclosures shall be made within 30 days after the date the answer is filed; All fact discovery shall be completed 210 days after the date the answer is filed; Bankruptcy Rule 7026(a)(2) disclosures of the parties’ case-in-chief experts, if any, shall be made within 20 days after the deadline for fact discovery; Bankruptcy Rule 7026(a)(2) disclosures of the parties’ rebuttal experts, if any, shall be made within 40 days after the deadline for fact discovery; All expert discovery shall be concluded within 100 days after the deadline for fact discovery; and Prior to the close of fact discovery, no motions may be made without the Court’s prior approval, which may be sought, on notice to other parties to the Action, via telephone conference with the Court, provided however, that (i) motions for default judgment may be made without the Court’s prior approval, and (ii) routine procedural motions (e.g., motions to intervene or to amend a pleading) may be made without the Court’s prior approval only if the moving party obtains the consent of all other parties to the action. The SIPA Trustee’s proposed Settlement Procedures include the following:
• • •
• • •
For the settlement of any Avoidance Proceeding where the settlement amount is $2,500,000 or greater, the SIPA Trustee will prepare a stipulation and order and seek Court approval of the settlement by notice of presentment and such stipulation and order will be deemed to meet all requirements of Bankruptcy Rule 9019. For the settlement of any Avoidance Proceeding where the settlement amount is less than $2,500,000, the SIPA Trustee will be authorized to consummate the proposed settlement without a further order of the Court and without giving notice to, or receiving consent from, any other party. The SIPA Trustee’s interim reports to the Court will include information regarding such settlement amounts that were collected by the LBI estate through Avoidance Proceedings in the period covered by such interim report.
Disposition: The Court granted this motion. [Docket No. 2894]
Motion to Approve Trustee's Motion Pursuant to Sections 105(a) and 363(b) of the Bankruptcy Code for an Order Approving a Transition Services Agreement (“TSA”) with Barclays Capital Inc. [Docket No. 2555]
The SIPA Trustee sought authorization to enter into the TSA, pursuant to which Barclays agreed to provide the SIPA Trustee with access to LBI’s books and records, which it acquired in the Barclays Sale, in order to facilitate the orderly liquidation of LBI. Disposition: The Court granted this motion. [Docket No. 2883]
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