20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 1 of 16 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : DEAN & DELUCA NEW YORK, INC., et al., : Case No. 20-10916 (MEW) : Debtors. 1 : Jointly Administered : : : SUPPLEMENTAL DECLARATION OF MARK LEONARDO IN SUPPORT OF DEBTORS’ APPLICATION FOR ENTRY OF AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF NUTTER MCCLENNAN & FISH LLP AS INTELLECTUAL PROPERTY COUNSEL TO THE DEBTORS I, Mark Leonardo, being duly sworn, state the following under penalty of perjury. 1. I am a partner in the law firm of Nutter McClennen & Fish LLP (“NM&F”), which maintains offices for the practice of law at 155 Seaport Blvd., Boston, Massachusetts, as well as in Hyannis, and am duly admitted to practice law in Massachusetts. 2. This Supplemental Declaration is provided as a supplement to Exhibit B of the Debtors’ Application For Entry Of An Order Authorizing The Employment And Retention Of Nutter McClennen & Fish LLP As Intellectual Property Counsel To The Debtors, ECF No. 167 (the “Initial Declaration”). 1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor's taxpayer identification number are as follows: Dean & Deluca New York, Inc. (3111); Dean & Deluca, Inc. (2998); Dean & Deluca Brands, Inc. (2878); Dean & Deluca International, LLC (8995); Dean & Deluca Small Format, LLC (1806); Dean & Deluca Atlanta, LLC (6678); Dean & Deluca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, Delaware 19808. 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 2 of 16 I. NMF Connections in this Chapter 11 Case. 3. In connection with the Debtors’ proposed retention of NMF, an extensive review (the “Connections Check”) of NMF’s clients, adverse parties and related parties (collectively, “Firm Connections”) was performed to ascertain whether NMF had any “connection” (as such term is used in Bankruptcy Rule 2014(a)) with the Debtors herein, their creditors, any other party in interest herein, or their respective attorneys or accountants, to the extent any such entities were known at such time (the “Case Parties”). 4. NMF has received a list of the Case Parties, as compiled by the Debtors, attached as Schedule 1 hereto, and has compared this to NMF’s records to determine the existence of any possible conflicts (the “Conflict Check”). The results of this Conflict Check are disclosed in the Application. The list was represented by the Debtors to be comprehensive and include the following categories of parties: the Debtors and their affiliates, officers and directors of the Debtors and their affiliates, creditors, equity holders, landlords, professionals, and other parties-in-interest. 5. To the best of my knowledge after diligent inquiry, neither NMF, nor any professional associated with or employed by NMF or any affiliate of NMF, has any “connection” (as such term is used in Bankruptcy Rule 2014(a)) with the Debtors herein, their creditors, any other party in interest herein, their respective attorneys or accountants, the United States Trustee, or any person employed in the office of the United States Trustee. To the best of my knowledge, any “connection” of NMF to the matched entities is limited to matters unrelated to the Debtors’ Chapter 11 Cases. 2 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 3 of 16 6. By reason of the foregoing, I believe that NMF is eligible for employment and retention by the Debtor pursuant to section 327(e) of the Bankruptcy Code, the applicable Bankruptcy Rules and the Local Rules II. NMF Compensation. 7. NM&F was retained by the Debtors pursuant to an engagement letter dated July 2, 2020, attached as Exhibit 3 to the Initial Declaration. NM&F has not received a retainer or any other payments from the Debtors to date. Notably, Mr. Leonardo’s hourly rate of $725 is below the blended hourly rate charged by Brown Rudnick, therefore representing a cost savings to the Debtors. 8. NM&F intends to apply for compensation for professional services rendered in connection with the chapter 11 cases subject to the approval of this Court and compliance with applicable provisions of the Bankruptcy Code, Bankruptcy Rules, Local Rules, the UST Guidelines and any Orders entered in these chapter 11 cases concerning compensation of professionals, on an hourly basis, plus reimbursement of actual, necessary expenses and other charges incurred by NMF. 9. To the extent that the Engagement Letter provides otherwise, NMF will not charge the Debtors for any administrative services resulting from or pertaining to the Services provided. 10. To the extent that the engagement letter provides otherwise, NMF will not charge the Debtors additional fees and will not perform additional work outside of those Services to be provided without further application filed on notice and authorized by the Court. 3 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 4 of 16 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: September 17, 2020 /s/ Mark Leonardo Mark Leonardo 4 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 5 of 16 EXHIBIT A Proposed Order 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 6 of 16 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : DEAN & DELUCA NEW YORK, INC., et al., : Case No. 20-10916 (MEW) : Debtors. 1 : Jointly Administered : : : ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF NUTTER MCCLENNEN & FISH LLP AS INTELLECTUAL PROPERTY COUNSEL TO THE DEBTORS Upon consideration of the application (the “Application”)2 of the Debtors for entry of an order authorizing and approving the employment of Nutter McClennen & Fish LLP (“NM&F”) as intellectual property counsel to the Debtors; and upon the Leonardo Declaration and the Baum Declaration; and it appearing that the relief requested is in the best interests of the Debtors’ estates, creditors and other parties-in-interest; and this Court having jurisdiction to consider the Application and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; and consideration of the Application and the relief requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the Application having been provided under the particular circumstances; and it appearing that no other or further notice need be provided; and, based upon the Leonardo Declaration, this Court being satisfied that (i) NM&F neither holds nor represents 1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor's taxpayer identification number are as follows: Dean & Deluca New York, Inc. (3111); Dean & Deluca, Inc. (2998); Dean & Deluca Brands, Inc. (2878); Dean & Deluca International, LLC (8995); Dean & Deluca Small Format, LLC (1806); Dean & Deluca Atlanta, LLC (6678); Dean & Deluca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, Delaware 19808. 2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Application. 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 7 of 16 any interest adverse to the Debtors or their estates, the creditors, or equity holders on the matters in which it is to be engaged, (ii) NM&F, to the extent required, is a “disinterested person” as that term is defined in section 101(14) of the Bankruptcy Code, and (iii) the employment of NM&F is necessary and would be in the best interest of the Debtors and their estates; and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Application is granted as set forth herein. 2. Pursuant to section 327(e) of the Bankruptcy Code, Rule 2014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Rule 2014-1 of the Local Bankruptcy Rules for the Southern District of New York (the “Local Rules”), the Debtors are authorized to employ and retain NM&F as intellectual property counsel to the Debtors, effective as of the date of this Order, to perform the following Services: a. advise and assist the Debtors in all respects regarding intellectual property, including trademark licensing issues. 3. NM&F shall apply for compensation and professional services rendered and reimbursement of expenses incurred in connection with the Debtors’ chapter 11 cases in compliance with sections 330 and 331 of the Bankruptcy Code, and applicable provisions of the Bankruptcy Rules, the Local Rules, and such other procedures as may be fixed by order of this Court. 4. Prior to any increases in NMF’s rates for any individual retained by NMF and providing services in these cases, NMF shall file a supplemental affidavit with the Court and provide ten business days’ notice to the Debtors, the United States Trustee and any official committee. The supplemental affidavit shall explain the basis for the requested rate increases in accordance with Section 330(a)(3)(F) of the Bankruptcy Code and state whether NMF’s client 2 20-10916-mew Doc 315 Filed 09/17/20 Entered 09/17/20 17:14:41 Main Document Pg 8 of 16 has consented to the rate increase.