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Lmington, Delaware Christopher A Case 20-10166-JTD Doc 1403 Filed 12/22/20 Page 1 of 71 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 LUCKY’S MARKET PARENT COMPANY, Case No. 20-10166 (JTD) LLC, et al.,1 (Jointly Administered) Debtors. Re: Docket No. 1397 DEBTORS’ MEMORANDUM OF LAW IN SUPPORT OF ENTRY OF AN ORDER CONFIRMING THE SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF LUCKY’S MARKET PARENT COMPANY, LLC AND ITS DEBTOR AFFILIATES Dated: December 22, 2020 POLSINELLI PC Wilmington, Delaware Christopher A. Ward (Del. Bar No. 3877) 222 Delaware Avenue, Suite 1101 Wilmington, Delaware 19801 Telephone: (302) 252-0920 Facsimile: (302) 252-0921 [email protected] -and- Liz Boydston (Admitted Pro Hac Vice) 2950 N. Harwood, Suite 2100 Dallas, Texas 75201 Telephone: (214) 661-5557 [email protected] Counsel to the Debtors and Debtors in Possession 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are Lucky’s Market Parent Company, LLC (2055), Lucky’s Farmers Market Holding Company, LLC (5480), Lucky’s Market Operating Company, LLC (7064), LFM Stores LLC (3114), Lucky’s Farmers Market, LP (0828), Lucky’s Farmers Market Resource Center, LLC (7711), Lucky’s Market Holding Company 2, LLC (0607), Lucky’s Market GP 2, LLC (9335), Lucky’s Market 2, LP (8384), Lucky’s Market of Longmont, LLC (9789), Lucky’s Farmers Market of Billings, LLC (8088), Lucky’s Farmers Markets of Columbus, LLC (3379), Lucky’s Farmers Market of Rock Hill, LLC (3386), LFM Jackson, LLC (8300), Lucky’s Farmers Market of Ann Arbor, LLC (4067), Lucky’s Market of Gainesville, LLC (7877), Lucky’s Market of Bloomington, LLC (3944), Lucky’s Market of Plantation, LLC (4356), Lucky’s Market of Savannah, GA, LLC (1097), Lucky’s Market of Traverse, City, LLC (2033), Lucky’s Market of Naples, FL, LLC (8700), Sinoc, Inc. (0723), Lucky’s Farmers Market of Ellisville, LLC (2875), and Lucky’s Farmers Market of Lexington, KY, LLC (3446). 74235093.5 Case 20-10166-JTD Doc 1403 Filed 12/22/20 Page 2 of 71 TABLE OF CONTENTS Preliminary Statement ..................................................................................................................... 2 Background ..................................................................................................................................... 2 A. General Background ........................................................................................................... 2 (i) Section 363 Sales .............................................................................................. 5 (ii) Claim Reconciliation ........................................................................................ 6 (iii) WARN Act Class Action Adversary Proceeding ............................................. 7 (iv) ATA Litigation.................................................................................................. 8 (v) Winn-Dixie Adversary Proceeding ................................................................... 8 (vi) Executory Contracts and Leases ....................................................................... 9 (vii) Exclusivity Period Extensions ......................... Error! Bookmark not defined. B. The Plan and Disclosure Statement Process ..................................................................... 10 Argument ...................................................................................................................................... 13 A. The Plan Meets the Bankruptcy Code’s Requirements and Should be Approved ........... 13 (i) Section 1129(a)(1): The Plan Complies With the Applicable Provisions of the Bankruptcy Code ............................................................................................ 14 (ii) Section 1122: The Classifications Are Appropriate ....................................... 14 (iii) Section 1123(a): The Plan’s Content is Appropriate ...................................... 18 (iv) Section 1123(b): The Plan Contains Certain Permissible Provisions ............. 19 (a) The Global Settlement is an Integral Component of the Plan and Should be Approved Pursuant to Bankruptcy Rule 9019 .......................................... 20 (1) Applicable Legal Standard ............................................................ 22 (2) Balancing the Possibility of Success in Litigation and Future Benefits of the Global Settlement Favors the Global Settlement . 25 (3) Difficulty in Collection ................................................................. 26 (4) Complexity of Litigation............................................................... 27 (5) The Global Settlement is in the Paramount Interests of Creditors 28 (b) The Plan Releases are Appropriate and Should be Approved .................. 28 (1) Debtor Releases ............................................................................ 29 (2) Third Party Releases ..................................................................... 36 (c) The Plan’s Injunction and Exculpation Provisions are Appropriate and Should be Approved ................................................................................. 38 (v) Section 1129(a)(2): The Plan Complies With the Bankruptcy Code .............. 41 (vi) Section 1129(a)(3): The Plan Has Been Proposed in Good Faith .................. 43 i 74235093.5 Case 20-10166-JTD Doc 1403 Filed 12/22/20 Page 3 of 71 (vii) Section 1129(a)(4): The Plan Provides for Approval of Certain Administrative Expenses ......................................................................................................... 45 (viii) Section 1129(a)(5): The Plan Contains Proper Disclosures ........................... 46 (ix) Section 1129(a)(6): No Governmental Regulatory Commission Has Jurisdiction Over the Debtors ......................................................................... 46 (x) Section 1129(a)(7): The Plan is in the Best Interest of All Creditors ............. 47 (xi) Section 1129(a)(8): The Plan Has Been Accepted by Impaired Voting Classes ......................................................................................................................... 49 (xii) Section 1129(a)(9): The Plan Provides for Payment in Full of Allowed Priority, Administrative, and Tax Claims ....................................................... 50 (xiii) Section 1129(a)(10): At Least One Class of Impaired Classes Has Accepted the Plan............................................................................................................ 50 (xiv) Section 1129(a)(11): The Plan is Feasible ...................................................... 50 (xv) Section 1129(a)(12): All Fees Have Been or Will be Paid ............................. 52 (xvi) Section 1129(a)(13) Through Section 1129(a)(16) Do Not Apply to the Plan52 (xvii) Section 1129(b): The Plan Satisfies the “Cram Down Requirements”........... 53 (xviii) Section 1129(c) Through Section 1129(e) Have Been Satisfied .................... 56 B. Substantive Consolidation. ............................................................................................... 56 (i) Prepetition Disregard of Separateness ............................................................ 59 (ii) Postpetition Commingling .............................................................................. 60 C. Objections ......................................................................................................................... 61 D. A Waiver of Any Stay of Confirmation is Appropriate .................................................... 61 Conclusion .................................................................................................................................... 62 ii 74235093.5 Case 20-10166-JTD Doc 1403 Filed 12/22/20 Page 4 of 71 TABLE OF AUTHORITIES Page(s) Cases In re 203 N. LaSalle St. Ltd. P’ship., 190 B.R. 567 (Bankr. N.D. Ill. 1995), rev’d on other grounds, 526 U.S. 434 (1999) .......................................................................................................................................53 In re Abeinsa Holding, Inc., 562 B.R. 265 (Bankr. D. Del. 2016) ........................................................................................58 In re Adelphia Commc’ns, Corp., 368 B.R. 140 (Bankr. S.D.N.Y. 2007) .....................................................................................47 In re Armstrong World Indus., 320 B.R. 523 (D. Del. 2005) ....................................................................................................54 In re Armstrong World Indus., Inc., 348 B.R. 111 (Bankr. D. Del. 2006) ........................................................................................14 In re Avia Energy Dev., LLC, Case No. 05-39339 (BJH), 2007 WL 2238039 (Bankr. N.D. Tex. Aug. 2, 2007) ........................................................................................................................................15 Bank of Am. Nat’l Trust & Savings Assoc. v. 203 N. LaSalle St. Partnership, 526 U.S. 434 (1999) .................................................................................................................47 In re Bowles, 48 B.R. 502 (Bankr. E.D. Va. 1985) ........................................................................................54 In re Briscoe Enters, Ltd., 994 F.2d 1160 (5th Cir. 1993) .................................................................................................51 In re Brotby, 303 B.R. 177 (B.A.P. 9th Cir. 2003)........................................................................................51
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