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DELBELLO DONNELLAN WEINGARTEN Presentment Date: February 5, 2018 WISE & WIEDERKEHR, LLP Presentment Time: 12:00 p.m. Attorneys for the Reorganized Debtor One North Lexington Avenue White Plains, New York 10601 (914) 681-0200 Jonathan S. Pasternak, Esq. Julie Cvek Curley, Esq.
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------X In re: Post-Confirmation METRO NEWSPAPER ADVERTISING Chapter 11 SERVICES, INC., Case No. 17-22445 (RDD)
Debtor. ------X
DEBTOR’S MOTION SEEKING ENTRY OF AN ORDER AUTHORIZING AND APPROVING PREFERENCE SETTLEMENT AGREEMENT PURSUANT TO FED.R.BANKR.P. 9019 BETWEEN THE DEBTOR AND MEDIA NEWS GROUP, INC. AND SUBSIDIARIES/AFFILIATES
TO: THE HONORABLE ROBERT D. DRAIN, UNITED STATES BANKRUPTCY JUDGE:
Metro Newspaper Advertising Services, Inc., reorganized debtor in the above captioned
proceeding (the "Debtor" or “Metro”), by its attorneys, DelBello Donnellan Weingarten Wise &
Wiederkehr, LLP, hereby submits this motion (the “Motion”) pursuant to Rule 9019 of the
Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) for entry of an order
authorizing and approving the preference Settlement Agreement (the “Settlement Agreement”)
between the Debtor and Media News Group, Inc. and certain of its subsidiaries and affiliates
(collectively, “Media News Group”). In support of this Motion, the Debtor respectfully represent
as follows: 17-22445-rdd Doc 166 Filed 01/19/18 Entered 01/19/18 10:19:42 Main Document Pg 2 of 8
JURISDICTION AND VENUE
1. The Court has jurisdiction over this Motion pursuant to 28 U.S.C. § 157(b)(2)(A)
and 1334. Consideration of the Motion is a core proceeding pursuant to 28 U.S.C. §
157(b)(2)(A).
2. Venue is proper in this District pursuant to 28 U.S.C. § 1408 and 1409.
3. This proceeding has been initiated pursuant to Bankruptcy Rule 9019.
BACKGROUND
4. On March 27, 2017, (the “Filing Date”), the Debtor filed a voluntary petition for
reorganization pursuant to Chapter 11 of the Bankruptcy Code (the “Chapter 11 Case”).
5. Thereafter the instant proceedings were referred to your Honor for administration
under the Bankruptcy Code.
6. The Debtor continued in possession of its property and the management of its
business affairs as a debtor-in-possession pursuant to §§1107(a) and 1108 of the Bankruptcy
Code.
7. On April 12, 2017, the United States Trustee for the Southern District of New
York appointed an Official Committee of Unsecured Creditors (the “Creditors’ Committee”).
The Creditors’ Committee dissolved upon confirmation of the Plan (as defined below) and a
creditors’ representative was authorized to be appointed under the Plan. To this date, no
creditors’ representative has been identified to the Debtor. No trustee or examiner has been
appointed.
8. The Debtor operated a newspaper advertising service company and was located at
28 Wells Avenue, Yonkers, New York 10701. The Debtor ceased operations on or about July 15,
2017.
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9. The Debtor confirmed its Second Amended Chapter 11 Liquidating Plan (the
“Plan”) on December 29, 2017.
10. Subsequent to the cessation of the Debtor’s operations and in furtherance of
effectuating the Plan, the Debtor reviewed its books and records to investigate potential causes
of action pursuant to §547 of the Bankruptcy Code that could be recovered to fund a distribution
to the Debtor’s creditors. The Debtor’s review uncovered various transfers made in the ninety
(90) day period prior to the Filing Date (the “Alleged Transfers”).
11. On or about October 25, 2017, the Debtor sent demand letters requesting the return of the Alleged Transfers.
12. In response to the demand letters, several recipients provided the Debtor with, inter alia, an analysis asserting and supporting material “new value” and “ordinary course of business” defenses pursuant to §547(c)(2) and (4) of the Bankruptcy Code.
13. Thereafter, the Debtor engaged in discussions aimed at resolving the Alleged
Transfers with Media News.
14. After review and confirmation of the “new value” and other defenses asserted, including the fact that several of the amounts claimed against the affiliates and/or subsidiaries were less than the $6,425 minimum requirement to commence a preference action, the Debtor and Media News have an agreement, subject to this Court’s approval, which constitutes approximately 61.25% percent of what MediaNews asserted is the net preference amount, after applying the amount of “new value” to the gross transfer amounts.
15. The Settlement Agreement between the Debtor and Media News is annexed hereto as Exhibit A. The Settlement Agreements will yield $82,500 to the Debtor’s estate.
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REQUEST FOR APPROVAL OF THE STIPULATION PURSUANT TO BANKRUPTCY RULE 9019
16. The Debtor submits that approval of the Settlement Agreements is in the best
interests of its estate and creditors and should be approved.
17. Bankruptcy Rule 9019(a) permits this Court to approve a compromise or
settlement. The Rule provides:
(a) Compromise. On motion by the trustee and after notice and a hearing the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.
18. Neither Rule 9019 nor any section of the Bankruptcy Code explicitly set forth the
standards by which a court is to evaluate a proposed settlement for approval. However, the
standards for approval of settlements in bankruptcy cases are well established in the case law,
focusing upon whether the proposed settlement is reasonable and in the best interests of
creditors. See, Protective Committee v. Anderson, 390 U.S. 414 (1968), reh’g denied, 391 U.S.
909 (1968).
19. In deciding whether a proposed compromise is fair and equitable, reasonable and
in the best interests of creditors, courts in the Second Circuit follows the analysis first articulated
by the Supreme Court in Anderson, as developed and applied by the case law. Thus, courts
assess a proposed settlement based upon a consideration of some or all of the following factors:
(i) the relative benefits to be received by creditors under the proposed settlement;
(ii) the likelihood of success in the litigation compared to the present and future benefits offered by the proposed settlement;
(iii) the prospect of complex and protracted litigation if settlement is not approved;
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(iv) the attendant expense, inconvenience and delay of litigation;
(v) the probable difficulties of collecting on any judgment that might be obtained;
(vi) the competency and experience of counsel who support the proposed settlement;
(vii) the extent to which the settlement is the product of arm’s-length bargaining, and not the product of fraud or collusion;
(viii) the nature and breadth of any releases to be issued as a result of the proposed settlement; and
(ix) the paramount interest of the creditors and proper deference to their reasonable views.
See, City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974); In re Ionosphere Clubs,
Inc., 156 B.R. 414, 427 (S.D.N.Y. 1993); In re Purofied Down Products Corp., 150 B.R. 519,
522 (S.D.N.Y. 1993); In re International Distribution Centers, Inc., 103 B.R 420, 422 (S.D.N.Y.
1989); In re Fugazy, 150 B.R. 103,106 (Bankr. S.D.N.Y. 1993); In re Drexel Burnham Lambert
Group, Inc., 134 B.R. 499, 506 (Bankr. S.D.N.Y. 1991); In re Crowthers McCall Pattern, Inc.,
120 B.R. 279, 287 (Bankr. S.D.N.Y. 1990); In re Texaco, Inc., 84 B.R.893, 901 (Bankr.
S.D.N.Y. 1988); In re Lion Capital Group, Inc., 49 B.R. 163, 175 (Bankr. S.D.N.Y. 1985); In re
Carla Leather, Inc., 44 B.R.457, 466 (Bankr. S.D.N.Y. 1984), aff’d 50 B.R. 764 (S.D.N.Y.
1985); In re W.T. Grant Co., 4 B.R. 53,69 (Bankr. S.D.N.Y.). aff’d, 20 Bankr. 186 (S.D.N.Y.), aff’d, 699 F. 2d 599 (2d Cir. 1983), cert. denied sub nom. Cosoff v. Rodman, 464 U.S. 822
(1983). See also In re Jackson Brewing Co., 624 F. 2d 599, 602 (5th Cir. 1980).
20. In evaluating the propriety of a settlement in concert with the foregoing factors,
the court need not conduct a trial, “mini-trial,” or “a rehearsal of the trial” on the merits to
actually resolve the extant factual and legal issues, but must simply consider whether against the
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background of those issues, the settlement is reasonable. Newman v. Stein, 464 F. 2d 689, 692
(2d Cir. 1972), cert. denied sub nom. Benson v. Newman, 409 U.S. 1039 (1972). See also,
International Distribution, 103 B.R. at 423; Drexel Burnham, 134 B.R. at 496. In so doing, the
court may consider the settlement in the context of its familiarity with the history of the case, the
complexity of the claims alleged, the parties, and the context in which the claims and the
settlement arose. See Anderson, 390 U.S. at 444; Purofied Down Products, 150 B.R. at 519,
524; International Distribution Centers, 103 B.R. at 423.
21. The settlement evaluation process is not designed to substitute the court’s
judgment for that of a trustee. Carla Leather, 44 B.R. at 465. While the Court is not expected to
“rubber stamp” a proposed settlement, the Court should give considerable weight to the informed
judgment of the Debtor that the compromise is fair and equitable and the support of the
Committee to the settlement, See Anderson, 390 U.S. at 444; Ionosphere, 156 B.R. at 426;
International Distribution Centers, 103 B.R. at 423; Drexel, 134 B.R. at 496; Carla Leather, 44
B.R. at 472. As articulated by the district court in International Distribution Centers, the Court
should give weight to the support not only of the debtors’ counsel, but to counsel of other parties
to a settlement in determining the wisdom of the compromise. International Distribution
Centers,103 B.R. at 423. Therefore, the Court should consider the Debtor’s opinion, and independently evaluate the arguments for and against the settlement to determine whether the settlement should be approved. Purofied Down Products, 150 B.R. at 523.
22. The Debtor submits that approval of the Settlement Agreements is in the best
interests of the Debtor’s estate for the following reasons:
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a. The Debtor believes that Media News might be able to successfully argue at trial that the Alleged Transfers were made in the “ordinary course of business”, as Media News contends that the transfers were consistent with the ordinary terms of payment that the parties had conducted their business affairs during the Preference Period.
b. The Debtor will not have the statutory right to sue certain of the Media News affiliates/subsidiaries and their specific transfers might not have exceeded the $6,425 minimum suit amount under Section 547.
c. The Debtor has determined that the Stipulation is fair and reasonable in light of the monetary recovery to the estate;
d. The Stipulation effectively resolves all disputed claims and issues between the parties with respect to the Alleged Transfers;
e. The Estate will avoid the costs and time delay which would be associated with further protracted litigation and discovery; and
f. The Debtor believes that the consideration given by both parties in the Settlement Agreement is fair and reasonable.
NOTICE
23. The Debtor has provided notice of this Motion to: (a) the United States Trustee;
(b) counsel to the Creditors’ Committee; and (c) parties filing Notices of Appearance. In light of
the nature of the relief requested, the Debtor submits that no further notice is required or needed
under the circumstances.
CONCLUSION
24. In light of the foregoing, the Debtor respectfully submits that the settlement
embodied in the respective Settlement Agreement falls well above "the lowest point in the range
of reasonableness" and is in the best interests of the estates at large and should therefore be
approved. Accordingly, the Debtor requests approval of the Stipulation.
25. No previous motion or application for the relief herein requested has been made to
this or any other Court.
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WHEREFORE, the Debtor respectfully requests that the Court enter the proposed Order
annexed hereto as Exhibit B approving the Settlement Agreement, together with such other and
further relief as is just and proper under the circumstances.
Dated: White Plains, New York January 19, 2018 DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR, LLP Attorneys for Reorganized Debtor One North Lexington Avenue, 11th Floor White Plains, New York 10601 (914) 681-0200
By: /s/ Jonathan S. Pasternak Jonathan S. Pasternak, Esq..
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DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR, LLP Attorneys for the Debtor One North Lexington Avenue White Plains, New York 10601 (914) 681-0200 Jonathan S. Pasternak, Esq. Julie Cvek Curley, Esq.
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------X In re: Chapter 11 METRO NEWSPAPER ADVERTISING Case No. 17-22445 (RDD) SERVICES, INC.,
Debtor. ------X
SETTLEMENT AGREEMENT
This settlement agreement (the “Agreement”) by and between Metro Newspaper
Advertising Services, Inc. (the “Debtor”), and Media News Group, Inc. and its subsidiaries and affiliates (collectively, “Media News Group” and together with the Debtor, the “Parties”) set forth the terms upon which the Parties have agreed to settle the matter described below:
RECITALS
WHEREAS, on March 27, 2017 (the “Petition Date”), the Debtor filed a voluntary petition for Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the
United States Bankruptcy Court for the Southern District of New York (the “Court”), Case No.
17-22445 (RDD); and
WHEREAS, the Debtor has continued in possession of its assets and management of its affairs as a debtor in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code, with the capacity to sue and be sued as statutory trustee of its estate; and
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WHEREAS, within ninety (90) days prior to the Petition Date (the “Preference Period”),
the Debtor made transfers of its property to or for the benefit of Media News Group in the total
amount of $372,971.89 (the “Transfers”); and,
WHEREAS, the Debtor has asserted that the Alleged Transfers constitute preferences within the meaning of §547 of the Bankruptcy Code; and
WHEREAS, Media News Group has heretofore informally asserted that the Transfers are not preferences within the meaning of §547 and asserted various ordinary course and new value defenses as set forth in §547 of the Bankruptcy Code and other possible defenses, each of which has been considered by the Debtor; and
WHEREAS, in order to avoid the cost and expense of litigation and delay in the resolution of the various issues between the parties hereto, the Debtor and Media News Group wish to resolve this matter pursuant to the terms and conditions set forth below:
SETTLEMENT
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein and other valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, it is stipulated and agreed between the Parties, as follows:
1. The foregoing recitals are incorporated herein by reference and are made a part
hereof.
2. Media News Group shall deliver to DelBello Donnellan Weingarten Wise &
Wiederkehr, LLP, attorneys for the Debtor, at One N. Lexington Avenue, 11th Floor, White
Plains, New York 10601, attn: Julie Cvek Curley, Esq., an executed copy of this Agreement
together with a check made payable to “DelBello Donnellan Weingarten Wise & Wiederkehr,
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LLP, as Attorneys” in the amount of $82,500.00 (the “Settlement Amount”), on or before
January 31, 2018.
3. Upon the Court approval of this Agreement and subject to Media News Group’s payment of the Settlement Amount, Media News Group, and its affiliates, subsidiaries, agents, representatives, successors, and assigns, shall be deemed released of any and all causes of action of the Debtor’s estate under Chapter 5 of the Bankruptcy Code.
4. Upon the Court approval of this Agreement and subject to Media News Group’s payment of the Settlement Amount, Media News Group and its affiliates, subsidiaries, agents, representatives, successors, and assigns, releases, acquits, and discharges the Debtor and its estate, and its retained professionals, and their respective successors and assigns, of and from any claims, damages, actions, suits, causes of action, rights, liens, demands, obligations and/or liabilities arising from or relating to the Transfers. Various MediaNews Group entities filed proofs of claim in the Debtor’s Chapter 11 case as set forth on Exhibit “1” hereto for unpaid amounts due and owing as of the Petition Date (the “Proofs of Claim”). Nothing contained herein shall alter, compromise, or release MediaNews Group’s claims against the Debtor as set forth in the Proofs of Claim or the Debtor’s right to object to such claims and/or the Proofs of
Claim.
5. The Parties acknowledge that this Agreement is a compromise of disputed claims and that neither admits, and each expressly denies, any liability on its part.
6. The Parties represent and acknowledge that, in executing this Agreement, they do not rely and have not relied upon any representation or statement made by any Party or any of their agents, shareholders, representatives or attorneys, with regards to the subject matter, basis or effect of this Agreement or otherwise, other than as specifically stated in this Agreement.
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7. The Parties further declare that, in making this Agreement, they rely entirely upon their own judgment, beliefs and interest and the advice of their counsel and that they have had a reasonable period of time to consider this Agreement.
8. The parties agree that each Party has reviewed this Agreement and that each fully understands and voluntarily accepts all of the provisions contained in this Agreement. The
Parties further agree that this Settlement Agreement was the product of negotiations between the
Parties and that any rule of construction that ambiguities are to be resolved against the drafting party shall no apply in the interpretation of this Agreement.
9. This Agreement sets forth the entire agreement between the Parties and fully supersedes any and all prior agreements and understandings, written or oral, between the Parties pertaining to the subject matter hereof.
10. This Stipulation and Order shall be binding upon and shall inure to the benefit of the parties and their successors and assigns, including a trustee or examiner, if any, that may subsequently be appointed pursuant to Court order in the Debtor’s bankruptcy case or under
Chapter 7 of the Bankruptcy Code as well as all of the Debtor’s creditors.
11. All parties shall each be responsible for their own costs and attorney’s fees in connection with this matter.
12. The signatories hereto each represent and warrant that they hold and are exercising the requisite authority to bind their respective parties and/or clients.
13. This Stipulation and Order sets forth the entire understanding of the parties hereto with respect to the matters described herein. The provisions of this Stipulation and Order shall not be abridged, impaired or modified unless each of the parties hereto shall have consented to the same in a written instrument signed by all parties.
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14. Any notice or other communication required, permitted, or desirable hereunder, shall be in writing, and shall be deemed sufficiently given if personally delivered, or if sent by facsimile transmission or by certified or registered mail, postage prepaid, return receipt requested, addressed as follows:
To the Debtor: Julie Cvek Curley, Esq. DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR, LLP One North Lexington Avenue, 11th Floor White Plains, New York 10601 Telephone: (914) 681-0200 Email: [email protected]
To Media News Group: Robyn Morris, Esq. Staff Attorney Digital First Media 4 North 2nd Street, Suite 800 San Jose, California 95113 Telephone:408-920-5713 Email: [email protected]
With copy to: Lisa G. Beckerman, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP One Bryant Park New York, New York 10036-6745 Telephone: (212) 872-8012 Email: [email protected]
15. This Stipulation and Order may be executed in counterparts, each of which, taken together, shall be deemed one document. Facsimile signatures or signatures reproduced in a portable document file transmitted electronically shall be deemed originals for the purposes of this Stipulation and Order.
16. This Stipulation and Order is subject to the approval of the Bankruptcy Court. In the event that this Stipulation and Order is not approved by the Bankruptcy Court or the
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Stipulation and Order does not become a final, non-appealable Order, nothing herein shall be deemed an admission of any party hereto, or be of any further force or effect.
17. This Stipulation and Order shall be governed by the laws of the State of New
York, and shall be construed and interpreted in accordance with its laws, notwithstanding its conflict of law principles or any other rule, regulation or principle that would result in the application of any other state’s law.
18. The Bankruptcy Court shall retain jurisdiction over this matter in the event a dispute arises with respect to the subject matter of this Stipulation and Order.
Dated: January 17, 2018 Dated: January 17, 2018
DELBELLO DONNELLAN WEINGARTEN AKIN GUMP STRAUSS HAUER & WISE & WIEDERKEHR, LLP FELD, LLP Attorneys for the Debtor Attorneys for Media News Group One North Lexington Avenue, 11th Floor One Bryant Park White Plains, New York 10601 New York, New York 10036-6745 (914) 681-0200 (212) 872-8012
By: /s/ Julie Cvek Curley______By: /s/ Lisa G. Beckerman Julie Cvek Curley, Esq. Lisa G. Beckerman, Esq.
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Exhibit 1
Claim Creditor Amount Number
6 Media News Group Online $30,644.87
7 Bay Area News Group $324,409.14
8 Southern California News Group $209,164.15
9 The Denver Post $42,512.23
10 Prairie Mountain Media $995.19
11 21st Century Media $36,777.85
12 The Lowell Publishing Co $376.76
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------X In re: Chapter 11 METRO NEWSPAPER ADVERTISING Case No. 17-22445 (RDD) SERVICES, INC.,
Debtor. ------X
ORDER AUTHORIZING AND APPROVING SETTLEMENT AGREEMENT PURSUANT TO FED.R.BANKR.P. 9019 BETWEEN THE DEBTOR AND MEDIA NEWS GROUP, INC. AND CERTAIN SUBSIDIARIES/AFFILIATES
UPON the motion dated January 19, 2018 (the “Motion”) of Metro Newspaper
Advertising Services, Inc., reorganized debtor in the above captioned proceeding (the "Debtor" or “Metro”), by its attorneys, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) for entry of an order authorizing and approving Settlement Agreement (the “Settlement
Agreement”), annexed to the Motion as Exhibit A between the Debtor and Media News Group,
Inc. and certain subsidiaries and affiliated entities (collectively, “Media News”),; and it appearing that due and sufficient notice of the Motion was provided; and there being no opposition to the requested relief; and, after due deliberation, it appearing that the Settlement
Agreement was negotiated at arms’ length and in good faith, and Settlement Agreement is in the best interest of the Debtor’s estate as the Settlement Agreement falls well above "the lowest point in the range of reasonableness"; and good and sufficient cause appearing, it is hereby
ORDERED that the Motion is granted as set forth herein; and it is further
ORDERED, that the Debtor is authorized to enter into the Settlement Agreement; and it is further
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ORDERED, that the Settlement Agreement annexed to the Motion is approved; and it is further
ORDERED, that the Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Order and the Settlement Agreement.
Dated: White Plains, New York February __, 2018
HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUTPCY JUDGE
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