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March 8, 2019 – Each of (i) McKinsey Recovery and Transformtion Services ("McKinsey") and (ii) Mar-Bow Value Partners, LLC and Jay Alix (collectively, "Mar-Bow") have responded to the "Mediator's Notice" [Docket No. 1406] filed by the Court appointed mediator, Judge Marvin Isgur on February 19, 2019. The Mediator's Notice updated the bankruptcy Court on mediation efforts amongst (i) the U.S. Trustee assigned to those cases, (ii) Mar-Bow, (iii) McKinsey and (iv) the Debtors. Further to Judge Isgur’s mediation efforts several proposed settlements were reached, including amongst the (i) U.S Trustee and McKinsey, a settlement which incorporates the Alpha and SunEdison cases, and (ii) McKinsey and the Debtors. What is perhaps the most contentious dispute, a deeply acrimonious fight between Mar-Bow and McKinsey that has raged across cases and courts, was not resolved.
In a joint motion filed by McKinsey and the U.S. Trustee [Docket No. 1589], those parties filed a proposed order which incorporates the core terms of a term sheet attached as Exhibit A to the Mediator’s Notice. The joint motion states, "The Acting United States Trustee and McKinsey have incorporated the terms of the USTP/McKinsey Agreement into a proposed agreed order (the 'Agreed Order') and hereby request that the Court enter the Agreed Order. A true and correct copy of the Agreed Order is attached as Exhibit “A” and incorporated by reference. Among other things, the Agreed Order provides:
- An aggregate payment of $15 million by McKinsey for distribution in the Alpha, SunEdison and Westmoreland cases [$5mn as to each case];
- As specifically described therein, a mutual release of claims by the United StatesTrustee Program and McKinsey in certain identified cases.
- Specific reservation of certain objection rights in the Westmoreland case by the Acting United States Trustee for matters not related to the adequacy of McKinsey’s past retention disclosures;
- Deferral of McKinsey’s retention in the Westmoreland case pending additional disclosures;
- Specific language preserving rights of the United States, the right of the United States Trustee Program to share information with other agencies of the United States, and an acknowledgement that the Agreed Order does not impact the rights of non-parties; and
- The Agreed Order and the Term Sheet (and their contents) are not and shall not be used as an admission of liability, violation, or wrongdoing by McKinsey, and all of its agents, directors, officers, attorneys, partners and employees acting on its behalf, solely with respect to actions taken in the course and scope of their duties with McKinsey, to any person or entity or on any legal or equitable theory."
For its part, Mar-Bow filed an objection [Docket No. 1591] to proposed settlement between McKinsey and the U.S. Trustee described above, without providing further details. Given that the objection pertains to a settlement agreed entirely between third parties and already bless by Judge Isgur, and otherwise tangential to any mediation efforts directly involving itself and McKinsey, the objection may be viewed as continuing to press the boundaries of the dispute. The objection states, "Mar-Bow objects to the proposed settlement. Mar-Bow intends to file a more fulsome objection on or before March 28, 2019, which is 21 days after service of the proposed settlement, and the presentment date noticed by the movants in the Sun Edison case. Mar-Bow intends to request a hearing when it files its more fulsome objection. Mar-Bow reserves all rights to supplement and amend this preliminary objection, including by filing a more fulsome objection, and reserves all rights and remedies related thereto."
Also on the guest list are the Alpha Natural Resources reorganized debtors ("Alpha Resources") who are invited, but not requuired to attend. The U.S. Trustee for Region 7 (assigned to the Westmoreland case) was issued a discretionary invite while the U.S. Trustee for Region 4 (assigned to Alpha Resources case) was given a diplomatic, if obligatory, "shall appear" invitation, the latter invite also stipulating that the Region 4 U.S. Trustee must arrive in a position to resolve all disputes with McKinsey in the Alpha Resources case. Both of the Trustees' invitations are "plus one (only)," ie allowing for a single lawyer each.
The decision to appoint a mediator follows a January 10, 2019 order by Judge Kevin R. Huennekens of the United States Bankruptcy Court for the Eastern District of Virginia in Richmond granting a motion by Mar-Bow motion to reopen the Alpha Natural Resources. Having reviewed Mar-Bow's allegations of court violations, conflict of interest and fraud, Judge Huennekens commented, “These are some of the most serious allegations that I have ever seen… We’ve got to get to the bottom of it.”
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