PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: JCK LEGACY COMPANY, et al., Debtors. 1 : : : : : : Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered) x Related Dkt. No. 1266, 1267, 1268 GUC RECOVERY TRUSTEE’S STATEMENT IN RESPONSE TO PENSION BENEFIT GUARANTY CORPORATION’S MOTION FOR AN ORDER TO COMPEL MEDIATION REGARDING THE GUC RECOVERY TRUSTEE’S OBJECTIONS TO PBGC’S CLAIMS William A. Brandt, Jr., in his capacity as trustee of the JCK Legacy GUC Recovery Trust (the “GUC Recovery Trustee”) created under GUC Recovery Trust Agreement and the First Amended Joint Chapter 11 Plan of Distribution of JCK Legacy Company and Its Affiliated Debtors and Debtors in Possession, through his undersigned counsel, files this statement in response to Pension Benefit Guaranty Corporation’s Motion for an Order to Compel Mediation Regarding the GUC Recovery Trustee’s Objections to PBGC’s Claims (the “Mediation Motion”) [Docket No. 1268]. 1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017. 20-10418-mew Doc 1289 Filed 10/05/21 Entered 10/05/21 12:23:10 Main Document Pg 1 of 3
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PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x
In re: JCK LEGACY COMPANY, et al.,
Debtors.1
: : : : : :
Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)
x Related Dkt. No. 1266, 1267, 1268
GUC RECOVERY TRUSTEE’S STATEMENT IN RESPONSE TO PENSION BENEFIT GUARANTY CORPORATION’S MOTION
FOR AN ORDER TO COMPEL MEDIATION REGARDING THE GUC RECOVERY TRUSTEE’S OBJECTIONS TO PBGC’S CLAIMS
William A. Brandt, Jr., in his capacity as trustee of the JCK Legacy GUC Recovery Trust
(the “GUC Recovery Trustee”) created under GUC Recovery Trust Agreement and the First
Amended Joint Chapter 11 Plan of Distribution of JCK Legacy Company and Its Affiliated Debtors
and Debtors in Possession, through his undersigned counsel, files this statement in response to
Pension Benefit Guaranty Corporation’s Motion for an Order to Compel Mediation Regarding
the GUC Recovery Trustee’s Objections to PBGC’s Claims (the “Mediation Motion”) [Docket
No. 1268].
1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.
20-10418-mew Doc 1289 Filed 10/05/21 Entered 10/05/21 12:23:10 Main Document Pg 1 of 3
¨2¤!$25*% "j«
2010418211005000000000002
Docket #1289 Date Filed: 10/05/2021
2
STATEMENT
1. On September 20, 2021, the GUC Recovery Trustee filed the GUC Recovery
Trustee’s Objection to Proof of Claim No. 2666 Filed By The Pension Benefit Guaranty
Corporation [Docket No. 1266] and the GUC Recovery Trustee’s Objection to Termination
Premiums Asserted by the Pension Benefit Guaranty Corporation in Proof of Claim No. 2689
[Docket No. 1267] (the “Pension Claim Objections”). In response to the Pension Claim
Objections, the Pension Benefit Guaranty Corporation (“PBGC”) filed the Mediation Motion,
seeking to compel mediation of the Pension Claim Objections.
2. As a general matter, the GUC Recovery Trustee believes that mediation is not
necessary because the issues described in the Pension Claim Objections are straightforward and
predominantly legal in nature. However, to the extent the Court is inclined to order mediation, the
GUC Recovery Trustee proposes the following: (a) an expedited mediation timeframe given the
relative lack of complexity of the Pension Claim Objections and the estate’s interest in reconciling
all remaining claims (which include pending litigation claims) in a timely fashion; (b) the estate
or the JCK Legacy GUC Recovery Trust should not be responsible for mediation fees and
expenses, other than their own professional fees; and (c) PBGC must produce data and information
requested by the GUC Recovery Trustee as a pre-condition to mediation.
3. On the latter point, the GUC Recovery Trustee has filed the GUC Recovery
Trustee’s Motion for an Order Compelling Production of Documents by The Pension Benefit
Guaranty Corporation Pursuant to Fed. R. Bankr. P. 2004 (the “Rule 2004 Motion”). See Docket
No. 1288. A copy of the Rule 2004 Motion is attached as Exhibit A.
4. The GUC Recovery Trustee filed the Rule 2004 Motion to obtain documents and
information necessary for his investigation into PBGC’s Proof of Claim No. 2667 in the estimated
amount of $877,500,000 for unfunded benefit liabilities. From the GUC Recovery Trustee’s
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3
standpoint, the mediation order should require PBGC to produce the documents and information
requested in the Rule 2004 Motion prior to the commencement of the mediation to avoid the
patently unfair situation that would exist if the GUC Recovery Trustee was compelled to mediate
a potential settlement of PBGC claims without being able to make a fair assessment of their merits.
CONCLUSION
WHEREFORE, to the extent the Court orders mediation, the GUC Recovery Trustee
respectfully requests that any final order related to the Mediation Motion provide: (a) for an
expedited mediation timeframe; (b) that the estate and the JCK Legacy GUC Recovery Trust shall
not be responsible for mediation fees and expenses, other than the fees of their own professionals;
and (c) that PBGC produce the data and information requested in the Rule 2004 Motion as a pre-
condition to mediation.
Dated: October 5, 2021 New York, New York /s/ Leo T. Crowley PILLSBURY WINTHROP SHAW PITTMAN LLP Leo T. Crowley Patrick E. Fitzmaurice
Kwame O. Akuffo 31 West 52nd Street New York, New York 10019 Telephone: (212) 858-1000 Facsimile: (212) 858-1500
Objection Deadline: November 10, 2021 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time: November 17, 2021 at 11:00 a.m. (Prevailing Eastern Time)
PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x
In re: JCK LEGACY COMPANY, et al.,
Debtors.1
: : : : : :
Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)
x
GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION
BENEFIT GUARANTY CORPORATION PURSUANT TO FED. R. BANKR. 2004 William A. Brandt, Jr., in his capacity as trustee (the “GUC Recovery Trustee”) of the
JCK Legacy Company GUC Recovery Trust (the “GUC Recovery Trust”) created under the GUC
Recovery Trust Agreement (the “Trust Agreement”) and the confirmed First Amended Joint
Chapter 11 Plan of Distribution of JCK Legacy Company and its affiliated Debtors and Debtors
in Possession (the “Plan”) [Docket No. 879], by and through undersigned counsel, files this
motion (the “Motion”) pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure
1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.
20-10418-mew Doc 1288 Filed 10/05/21 Entered 10/05/21 12:01:28 Main Document Pg 1 of 13
E. PBGC’s Failure to Produce Census Data and Unlocked UBL Spreadsheet 25. Since the Effective Date, the GUC Recovery Trustee, by Counsel, and PBGC have
discussed numerous times the more than $1,000,000,000 in claims PBGC has filed in this case.
Among other things, those discussions have focused on the GUC Recovery Trustee’s efforts to
understand the amount and calculation of the UBL Claim, which PBGC currently estimates at
$877,500,000. To aid in those efforts, the GUC Recovery Trustee requested various documents
and data from PBGC relating to the UBL Claim, including: (a) copies of pension plan documents,
including any amendment made in the five years prior to plan termination;2 (b) the Debtors’ most
recent ERISA/funding actuarial valuation reports, going back to the 2018 plan year; 3 (c) the
Debtors’ most recent PBGC premium filing; 4 (d) the most recent Schedule P information
submitted by the Debtors to PBGC under section 4010 of ERISA;5 (e) the Debtors’ August 2020
plan asset statement;6 (f) a copy of the valuation census data used in the most recent actuarial
valuation of the Debtors’ pension plan;7 and (g) a copy of PBGC’s UBL spreadsheet. A copy of
the information request is attached as Exhibit D.
26. PBGC produced certain of the documents requested but refused to produce the
census data and the unlocked UBL spreadsheet. With respect to the census data, PBGC stated that
2 The pension plan document is used to identify and understand the applicable benefit provisions, including eligibility for early and normal retirement, the available payment forms, etc. 3 The most recent funding valuation report is used to understand the minimum funding requirements, the claim for unmet minimum funding, and provides one liability measure with which to evaluate the UBL claim. 4 The most recent PBGC premium filing is used to understand the unpaid premiums claim and provides another liability measure with which to evaluate the UBL claim. 5 The Schedule P information submitted to PBGC under ERISA Section 4010 provides another liability calculation to evaluate the UBL claim. This liability is calculated using assumptions and methods most similar to those used to develop the UBL claim. Any differences are primarily due to timing. 6 The plan asset statement for August 2020 provides the value of plan assets as of the date of plan termination. This is used to evaluate how much of the benefit liability is unfunded. 7 A copy of the valuation census data could be used to prepare an independent valuation of the UBL. It could also be used to assess demographic assumptions PBGC used in their UBL model.
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B. Cause Exists to Compel PBGC to Produce the Census Data and the UBL Spreadsheet 33. Cause exists to compel PBGC to produce the census data and unlocked UBL
spreadsheet because both are directly related and necessary to calculate and determine the actual
value of the UBL Claim. The requested discovery is also necessary to allow the GUC Recovery
Trustee’s actuary to perform its own independent analysis of the UBL Claim. Without the census
data and unlocked UBL spreadsheet, the GUC Recovery Trustee and his actuary cannot fully
determine the actual value of the UBL Claim.
34. As previously noted, PBGC has refused to provide the requested discovery despite
repeated requests. PBGC claims that the census data is not relevant to any analysis of the UBL
Claim because PBGC itself does not use the data in submitting the claim. With respect to the
unlocked UBL spreadsheet, PBGC asserts that it will not provide it to the GUC Recovery Trustee
because the formulas and other information that would be viewable in an unlocked version of the
spreadsheet are confidential and proprietary to PBGC.
35. The GUC Recovery Trustee and his actuary should not be deprived of the census
data merely because PBGC does not use or rely on such data. Valuation of the plan’s benefit
liabilities using the census data is a good check on the amount PBGC seeks because it is statutorily
required for plans being administered by their sponsor. As noted, section 4010.8(d) provides that
“[t]he value of a plan’s benefit liabilities at the end of a plan year must be determined using the
plan census data . . . and the actuarial assumptions and methods . . . .”. 29 C.F.R. § 4010.8(d)
(emphasis added).
36. Also, as a creditor of the Debtors’ estate, PBGC has “an obligation to respond to
formal or informal requests for information. . . . This obligation to respond applies regardless [sic]
whether [c]reditors have met their obligation to provide a summary under Rule 3001(c).” In re
20-10418-mew Doc 1288 Filed 10/05/21 Entered 10/05/21 12:01:28 Main Document Pg 11 of 13
Objection Deadline: November 10, 2021 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time: November 17, 2021 at 11:00 a.m. (Prevailing Eastern Time)
PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x
In re: JCK LEGACY COMPANY, et al.,
Debtors.1
: : : : : :
Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)
x
NOTICE OF MOTION AND HEARING
PLEASE TAKE NOTICE that William A. Brandt, Jr., in his capacity as trustee of the
JCK Legacy Company GUC Recovery Trust (the “GUC Recovery Trust”), filed the GUC
Recovery Trustee’s Motion for an Order Compelling Production of Documents by The Pension
Benefit Guaranty Corporation Pursuant to Fed. R. Bankr. P. 2004 (the “Motion”) with the United
States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”).
PLEASE TAKE FURTHER NOTICE that any objection to the Motion must be filed
on or before November 10, 2021 at 4:00 p.m. (ET) (the “Objection Deadline”) with the
1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.
20-10418-mew Doc 1288-1 Filed 10/05/21 Entered 10/05/21 12:01:28 Notice ofMotion and Hearing Pg 1 of 3
Bankruptcy Court, Courtroom 617, One Bowling Green, New York, New York 10004. At the
same time, you must serve a copy of any objection by the Objection Deadline upon the
undersigned counsel to the movant and to:
(a) The Debtors, JCK Legacy Company, c/o FTI Consulting, Inc., 1201 W. Peachtree Street, NW, Suite 500, Atlanta, Georgia 30309, Attn.: Sean M. Harding ([email protected]);
(b) Counsel for the Plan Administration Trustee, Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, New York 10001, Attn.: Shana A. Elberg ([email protected]) and Bram A. Strochlic ([email protected]), 300 South Grand Avenue, Suite 3400, Los Angeles, California 90071, Attn.: Van C. Durrer, II ([email protected]), and Destiny N. Almogue ([email protected]) and 525 University Avenue, Palo Alto, California 94301 Attn.: Jennifer Madden ([email protected]);
(c) Co-counsel for the Plan Administration Trustee, Togut, Segal & Segal LLP, One Penn Plaza, Suite 3335, New York, New York 10119, Attn.: Albert Togut ([email protected]) and Kyle J. Ortiz ([email protected]);
(d) The GUC Recovery Trust, c/o Development Specialists, Inc.,
110 East 42nd Street, Suite 1818, New York, New York 10017 Attn.: William A. Brandt., Jr. ([email protected]);
(e) Counsel for the GUC Recovery Trustee, Pillsbury Winthrop
(f) The Office of the United States Trustee, U.S. Federal Office Building, 201 Varick Street, Room 1006, New York, New York 10014, Attn.: Benjamin J. Higgins and Brian S. Masumoto; and
(g) Any party that has requested notice pursuant to Bankruptcy
Rule 2002.
20-10418-mew Doc 1288-1 Filed 10/05/21 Entered 10/05/21 12:01:28 Notice ofMotion and Hearing Pg 2 of 3
PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: JCK LEGACY COMPANY, et al.,
Debtors.1
: : : : : :
Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)
x
DECLARATION OF JOHN H. LOWELL IN SUPPORT OF GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION BENEFIT GUARANTY CORPORATION
PURSUANT TO FED. R. BANKR. 2004
Pursuant to 28 U.S.C. § 1746, I, John H. Lowell, submit this declaration (the “Declaration”)
under the penalty of perjury and state that the following is true to the best of my knowledge,
information, and belief:
1. I am a Partner at October Three Consulting, LLC, with more than 30 years of
experience as an actuary, consulting in the benefits and compensation space. I am an Associate of
the Society of Actuaries, an Enrolled Actuary under ERISA, a Fellow of the Conference of
Consulting Actuaries, and a Member of the American Academy of Actuaries. I have served as
1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.
20-10418-mew Doc 1288-2 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit ADeclaration of John H. Lowell Pg 2 of 5
PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x
In re: JCK LEGACY COMPANY, et al.,
Debtors.1
: : : : : :
Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)
x
ORDER GRANTING GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION
BENEFIT GUARANTY CORPORATION PURSUANT TO FED. R. BANKR. 2004
Upon consideration of the GUC Recovery Trustee’s Motion for an Order Compelling
Production of Documents by The Pension Benefit Guaranty Corporation Pursuant to Fed. R.
Bankr. P. 2004 (the “Motion”); and the Declaration of John H. Lowell; and the Court having
jurisdiction to consider the Motion and relief requested under 28 U.S.C. §§ 157 and 1334; and the
Motion and relief requested being a core proceeding under 28 U.S.C. § 157(b)(2); and venue being
proper before this Court under 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the
Motion having been provided; and it appearing that no other notice is needed; and such relief being
1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.
20-10418-mew Doc 1288-3 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit BProposed Order Pg 2 of 3
Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Do not use this form to make a request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.
Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies or any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available, explain in an attachment.
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.
Part 1: Identify the Claim
1. Who is the currentcreditor?
Name of the current creditor (the person or entity to be paid for this claim)
Other names the creditor used with the debtor
2. Has this claim beenacquired fromsomeone else?
No
Yes. From whom?
3. Where should notices andpayments to thecreditor be sent?
Federal Rule of Bankruptcy Procedure (FRBP) 2002(g)
Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if different)
Name
Number Street
City State ZIP Code
Contact phone
Contact email
Name
Number Street
City State ZIP Code
Contact phone
Contact email
Uniform claim identifier for electronic payments in chapter 13 (if you use one):
Part 2: Give Information About the Claim as of the Date the Case Was Filed
6. Do you have any numberyou use to identify thedebtor?
No
Yes. Last 4 digits of the debtor’s account or any number you use to identify the debtor: ___ ___ ___ ___
7. How much is the claim? $ . Does this amount include interest or other charges?
No
Yes. Attach statement itemizing interest, fees, expenses, or other charges required by Bankruptcy Rule 3001(c)(2)(A).
8. What is the basis of theclaim?
Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.
Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).
Limit disclosing information that is entitled to privacy, such as health care information.
9. Is all or part of the claimsecured?
No
Yes. The claim is secured by a lien on property.
Nature or property:
Real estate: If the claim is secured by the debtor’s principle residence, file a Mortgage Proof of Claim Attachment (Official Form 410-A) with this Proof of Claim.
Motor vehicle
Other. Describe:
Basis for perfection:
Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or recorded.)
Value of property: $
Amount of the claim that is secured: $
Amount of the claim that is unsecured: $ (The sum of the secured and unsecured amount should match the amount in line 7.)
Amount necessary to cure any default as of the date of the petition: $
Annual Interest Rate (when case was filed) %
Fixed
Variable
10. Is this claim based on alease?
No
Yes. Amount necessary to cure any default as of the date of the petition. $
11. Is this claim subject to aright of setoff?
No
Yes. Identify the property:
Official Form 410 Proof of Claimpage 2
877,500,000.00
✔
✔
✔
✔
Please see attached Statement in Support.
✔
20-10418-mew Doc 1288-4 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit CProof of Claim No. 2667 Pg 3 of 12
12. Is all or part of the claimentitled to priority under11 U.S.C. § 507(a)?
A claim may be partlypriority and partlynonpriority. For example,in some categories, thelaw limits the amountentitled to priority.
No
Yes. Check all that apply:
Domestic support obligations (including alimony and child support) under 11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).
Up to $3,025* of deposits toward purchase, lease, or rental of property or services for personal, family, or household use. 11 U.S.C. § 507(a)(7).
Wages, salaries, or commissions (up to $13,650*) earned within 180 days before the bankruptcy petition is filed or the debtor’s business ends, whichever is earlier. 11 U.S.C. § 507(a)(4).
Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).
Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5).
Other. Specify subsection of 11 U.S.C. § 507(a)(__) that applies.
Amount entitled to priority
$
$
$
$
$
$
* A m ounts are subject to adjustment on 4/01/22 and every 3 years after that for cases begun on or after the date of adjustment.
13. Is all or part of the claimpursuant to 11 U.S.C.§ 503(b)(9)?
No
Yes. Indicate the amount of your claim arising from the value of any goods received by the debtor within 20 days before the date of commencement of the above case, in which the goods have been sold to the Debtor in the ordinary course of such Debtor’s business. Attach documentation supporting such claim.
$
Part 3: Sign Below
The person completing this proof of claim must sign and date it. FRBP 9011(b).
If you file this claim electronically, FRBP 5005(a)(2) authorizes courts to establish local rules specifying what a signature is.
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Check the appropriate box:
I am the creditor.
I am the creditor’s attorney or authorized agent.
I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.
I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.
I understand that an authorized signature on this Proof of Claim serves as an acknowledgement that when calculating the amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.
I have examined the information in this Proof of Claim and have reasonable belief that the information is true and correct.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on date MM / DD / YYYY
Signature
Print the name of the person who is completing and signing this claim:
NameFirst name Middle name Last name
Title
Company Identify the corporate servicer as the company if the authorized agent is a servicer.
AddressNumber Street
City State ZIP Code
Contact phone Email
Official Form 410 Proof of Claimpage 3
Assistant General Counsel
✔
✔
Pension Benefit Guaranty Corporation
✔
10/22/2020
Erika E. Barnes
/s/Erika E. Barnes
20-10418-mew Doc 1288-4 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit CProof of Claim No. 2667 Pg 4 of 12
For phone assistance: Domestic (866) 810-6898 | International (424) 236-7215
VN: 341FAC73FB903C10564F0BDD3FBD3F42
Your claim can be filed electronically on KCC’s website at https://epoc.kccllc.net/McClatchy.
Official Form 410 Proof of Claim 04/19 Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Other than a claim under 11 U.S.C. § 503(b)(9), this form should not be used to make a claim for an administrative expense arising after the commencement of the case.
Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies or any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available, explain in an attachment.
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Fill in all the information about the claim as of the date the case was filed.
Part 1: Identify the Claim
1. Who is the currentcreditor?
Name of the current creditor (the person or entity to be paid for this claim)
Other names the creditor used with the debtor
2. Has this claim been acquired fromsomeone else?
No
Yes. From whom?
3. Where shouldnotices andpayments to thecreditor be sent?
Federal Rule ofBankruptcy Procedure(FRBP) 2002(g)
Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if different)
Name
Number Street
City State ZIP Code
Country
Contact phone
Contact email
Name
Number Street
City State ZIP Code
Country
Contact phone
Contact email
Uniform claim identifier for electronic payments in chapter 13 (if you use one):
Yes. Claim number on court claims registry (if known) Filed on MM / DD / YYYY
5. Do you know ifanyone else has fileda proof of claim forthis claim?
No
Yes. Who made the earlier filing?
United States Bankruptcy Court for the Southern District of New York
Indicate Debtor against which you assert a claim by checking the appropriate box below. (Check only one Debtor per claim form.) ☐ The McClatchy Company (Case No. 20-10418)
Part 2: Give Information About the Claim as of the Date the Case Was Filed
6. Do you have any numberyou use to identify thedebtor?
No
Yes. Last 4 digits of the debtor’s account or any number you use to identify the debtor: ___ ___ ___ ___
7. How much is the claim? $ . Does this amount include interest or other charges?
No
Yes. Attach statement itemizing interest, fees, expenses, or other charges required by Bankruptcy Rule 3001(c)(2)(A).
8. What is the basis of the claim?
Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.
Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).
Limit disclosing information that is entitled to privacy, such as health care information.
9. Is all or part of the claimsecured?
No
Yes. The claim is secured by a lien on property.
Nature of property:
Real estate: If the claim is secured by the debtor’s principal residence, file a Mortgage Proof of Claim Attachment (Official Form 410-A) with this Proof of Claim.
Motor vehicle
Other. Describe:
Basis for perfection:
Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or recorded.)
Value of property: $
Amount of the claim that is secured: $
Amount of the claim that is unsecured: $ (The sum of the secured and unsecured amount should match the amount in line 7.)
Amount necessary to cure any default as of the date of the petition: $
Annual Interest Rate (when case was filed) %
Fixed
Variable
10. Is this claim based on a lease?
No
Yes. Amount necessary to cure any default as of the date of the petition. $
11. Is this claim subject to aright of setoff?
No
Yes. Identify the property:
Official Form 410 Proof of Claim page 2
877,500,000.00
See summary page.
20-10418-mew Doc 1288-4 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit CProof of Claim No. 2667 Pg 7 of 12
12. Is all or part of the claimentitled to priority under11 U.S.C. § 507(a)?
A claim may be partlypriority and partlynonpriority. For example,in some categories, thelaw limits the amountentitled to priority.
No
Yes. Check all that apply:
Domestic support obligations (including alimony and child support) under 11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).
Up to $3,025* of deposits toward purchase, lease, or rental of property or services for personal, family, or household use. 11 U.S.C. § 507(a)(7).
Wages, salaries, or commissions (up to $13,650*) earned within 180 days before the bankruptcy petition is filed or the debtor’s business ends, whichever is earlier. 11 U.S.C. § 507(a)(4).
Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).
Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5).
Other. Specify subsection of 11 U.S.C. § 507(a)(__) that applies.
Amount entitled to priority
$
$
$
$
$
$
* Amounts are subject to adjustment on 4/01/22 and every 3 years after that for cases begun on or after the date of adjustment.
13. Is all or part of the claimpursuant to 11 U.S.C.§ 503(b)(9)?
No
Yes. Indicate the amount of your claim arising from the value of any goods received by the debtor within 20 days before the date of commencement of the above case, in which the goods have been sold to the Debtor in the ordinary course of such Debtor’s business. Attach documentation supporting such claim.
$
Part 3: Sign Below
The person completing this proof of claim must sign and date it. FRBP 9011(b).
If you file this claim electronically, FRBP 5005(a)(2) authorizes courts to establish local rules specifying what a signature is.
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Check the appropriate box:
I am the creditor.
I am the creditor’s attorney or authorized agent.
I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.
I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.
I understand that an authorized signature on this Proof of Claim serves as an acknowledgement that when calculating the amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.
I have examined the information in this Proof of Claim and have reasonable belief that the information is true and correct.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on date MM / DD / YYYY
Signature
Print the name of the person who is completing and signing this claim:
NameFirst name Middle name Last name
Title
Company Identify the corporate servicer as the company if the authorized agent is a servicer.
Service Form 5500s; and annual actuarial valuation reports for the Pension Plan. On information
and belief, Debtors or members of their controlled group have in their possession and control
copies or originals of these documents.
12. PBGC’s investigation of this matter is continuing. The agency reserves the right to
amend, modify and supplement this proof of claim and/or to file additional proofs of claim. This
claim may be subject to a right of setoff by PBGC as an agency of the United States government,
and the right of the United States to withhold subject to offset amounts due from other federal
entities. The filing of this proof of claim is not intended to be and shall not be construed as (1) an
election of remedy or (2) a waiver or limitation of any rights of PBGC, the Pension Plan or any of
its beneficiaries or participants.
13. Under the Order Establishing Bar Dates for Filing Proofs of Claim and Approving
Form and Manner of Notice Thereof signed by this Court on May 21, 2020 (Dkt. 485), this single
proof of claim shall be deemed to constitute the filing of a proof of claim against each and every
Debtor, asserted as a joint and several liability, in this jointly administered proceeding.
Dated: Washington, D.C. October 22, 2020
C. PAUL CHALMERS Acting General Counsel KARTAR S. KHALSA Deputy General Counsel ERIKA E. BARNES Assistant General Counsel ERIN C. KIM KIMBERLY E. NEUREITER EMILY E. MANBECK Attorneys Office of the General Counsel PENSION BENEFIT GUARANTY CORPORATION 1200 K Street, N.W.
20-10418-mew Doc 1288-4 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit CProof of Claim No. 2667 Pg 11 of 12
Boston | Chicago | Dallas | Denver | Jacksonville | Los Angeles | New York | San Francisco
January 20, 2021 Patrick Fitzmaurice Pillsbury Winthrop Shaw Pittman LLP 31 West 52nd Street New York, NY 10019-6131 RE: Pension Information Request Dear Patrick, In order to review the claims made by PBGC in the connection with In re JCK Legacy Company, et al., Case No. 20-10418 (MEW), October Three requests the following information relating to the McClatchy Company Retirement Plan:
+ Pension plan document, including any amendments made in the five years prior to plan termination.
+ Most recent ERISA/funding actuarial valuation reports, going back to the 2018 plan year.
+ Most recent PBGC premium filing. + Most recent Schedule P information submitted to PBGC under ERISA Section
4010. + Plan asset statement for August 2020. + Copy of the valuation census data used in the most recent actuarial valuation.
We expect this information should be readily available in an electronic format. Actuarial valuation reports and valuation census files are typically supplied to plan and company auditors. Copies of the information previously supplied to auditors will likely be sufficient for our purposes. The above items should cover most of the information that we will need. However, if it is determined that we will require additional files or information, we will contact you with our request.
20-10418-mew Doc 1288-5 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit DOctober Three Information Request Pg 2 of 3
From: Fitzmaurice, Patrick E.To: Barnes ErikaCc: Neureiter KimberlySubject: RE: McClatchyDate: Wednesday, March 17, 2021 1:15:51 PM
Erika, On items 2-4, I think the trustee has succeeded to the debtors’ position with respect to anyconfidentiality/privacy concerns. In other words, by dealing with the trustee on these issues you areeffectively dealing with the debtors so that the unidentified confidentiality restrictions you mentionare covered.It does not seem to me that this is something worth fighting about and even though our position isthat it’s not necessary I’m happy to work with you to get you what you think you need.But, there are not any debtors anymore and I’m not sure who can give you the comfort you arelooking for. Happy to jump on a short call to discuss if that would be helpful. Re item number 6, valuation census data used in the most recent actuarial valuation, while I am notan actuary, my understanding is that actuarial valuations are based on an analysis of informationconcerning a given population by applying various assumptions and inputs, such as discount rate,return on assets and others.But, the valuation fundamentally starts with information about the population being analyzed andwe cannot do that without the information.We also understand and take seriously the issues you raise around PII that may be included in thecensus data. As you may know from prior dealings with them, our consultants at October Three arewell equipped to receive, store and work with PII in a manner that complies with all applicable rulesand regulations. I am happy to set up a call for you or provide you with information concerning theprotocols they follow if that would be helpful. Best,
From: Barnes Erika <[email protected]> Sent: Wednesday, March 17, 2021 11:56 AMTo: Fitzmaurice, Patrick E. <[email protected]>Cc: Neureiter Kimberly <[email protected]>Subject: RE: McClatchy Patrick: We have attached items 1, 5, and 7 from your list. We have gathered items 2-4 and are prepared toprovide them once we receive written consent from the Debtors expressly stating that PBGC maysend such information to you. A confidentiality agreement between PBGC and the GUC Trusteewill not solve the confidentiality/privacy concerns. The concern is not who has a right to contestPBGC’s bankruptcy claims, but who holds the Debtors’ confidentiality/privacy rights. Also, pleaseget back to us on item 6 when you can.
A couple of notes on the items we are providing today:
1. The pension plan document, including any amendments made in the five years prior toplan termination – PBGC is providing these documents as statutory trustee.
5. The Plan asset statement for August 2020 – In addition to providing the August 2020
asset statement as statutory trustee, we are sending the WhiteStar August 2020 statementand the July 2020 asset statement. The WhiteStar statement is considered the mostaccurate source for the real estate values. Our understanding is the July 2020 assetstatement was the most current information available when our actuaries calculatedPBGC’s amended claims.
7. A copy of the PBGC’s UBL Spreadsheet – PBGC is providing these documents as statutory
trustee. Note that the Pension Information Profile is included within the UBL spreadsheet. Let us know if you have any questions. Erika Erika E. BarnesAssistant General CounselOffice of General CounselPension Benefit Guaranty Corporation1200 K Street, NWWashington, DC 20005202.326.4020 x3460202.229.3460 (direct)202.326.4112 (fax)[email protected] From: Fitzmaurice, Patrick E. <[email protected]> Sent: Friday, March 12, 2021 6:50 PMTo: Barnes Erika <[email protected]>Cc: Neureiter Kimberly <[email protected]>Subject: Re: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from another governmentagency. DO NOT click links or open attachments unless you recognize and/or trust the sender. Contact the ServiceDesk with questions or concerns.I will be back to you on number 6. Re 2-4, the GUC Trust for these purposes has succeeded towhatever interests the company has and we can work on a confidentiality agreement if that’s yourconcern.
On Mar 12, 2021, at 6:38 PM, Barnes Erika <[email protected]> wrote:
We have been in the process of gathering documents and looking at confidentialityissues.
We have numbered your requests for the sake of clarity. PBGC is in the process ofgathering items 1, 5, and 7 from your list. We are, however, unable to provideitems 2-4 due to confidentiality restrictions. You may wish to request them fromthe Debtors or ask the Debtors to provide a written consent to PBGC expresslystating that PBGC may send such information to you. As for item 6, PBGC does not use that information when calculating its claims. Asyou may know, PBGC uses a uniform calculation methodology for all cases. Further, such information would include highly sensitive personally identifiableinformation of the pension plan participants. It would be helpful to understand whysuch information is necessary to analyze PBGC’s claims. Could you explain that tous? We expect to get back to you with items 1, 5, and 7 soon and will let you know ifwe have any additional questions. Erika E. BarnesAssistant General CounselOffice of General CounselPension Benefit Guaranty Corporation1200 K Street, NWWashington, DC 20005202.326.4020 x3460202.229.3460 (direct)202.326.4112 (fax)[email protected] From: Fitzmaurice, Patrick E. <[email protected]> Sent: Friday, March 12, 2021 4:28 PMTo: Neureiter Kimberly <[email protected]>Cc: Barnes Erika <[email protected]>Subject: RE: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from anothergovernment agency. DO NOT click links or open attachments unless you recognize and/or trust thesender. Contact the Service Desk with questions or concerns.Good afternoon, any idea when you all will be in a position to start sending us somedocs/info? Thanks.
Hi Patrick: I received your list and have shared with the team. We will let you know if wehave any questions. Thank you, Kimberly Kimberly E. NeureiterAttorneyOffice of the General CounselPension Benefit Guaranty Corporation1200 K Street, N.W.Washington, DC 20005202.229.3581 phone202.326.4112 [email protected]
From: Fitzmaurice, Patrick E. <[email protected]> Sent: Wednesday, March 3, 2021 1:09 PMTo: Neureiter Kimberly <[email protected]>Subject: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from anothergovernment agency. DO NOT click links or open attachments unless you recognize and/or trust thesender. Contact the Service Desk with questions or concerns.Kim, Thank you again for the call yesterday. Below is a list of documents/data we are lookingfor to help us understand and analyze the PBGC’s claims.
The pension plan document, including any amendments made in the fiveyears prior to plan termination;Copies of the most recent ERISA/funding actuarial valuation reports, goingback to the 2018 plan year;A copy of the company’s most recent PBGC premium filing;A copy of the most recent Schedule P information submitted by thecompany to PBGC under ERISA Section 4010;The Plan asset statement for August 2020;A copy of the valuation census data used in the most recent actuarial valuation;andA copy of the PBGC’s UBL Spreadsheet.
As discussed, once we have this information in hand we think it makes sense for our
consultants at October Three to have an actuarial discussion with the PBGC actuarialstaff concerning the data, assumptions and other relevant inputs into the claims. Wewill be back to you with some suggested dates and times for that after we have madean initial review of these materials. Happy to chat about any of this if that would be helpful. Best, Patrick E. Fitzmaurice | PartnerPillsbury Winthrop Shaw Pittman LLP31 West 52nd Street | New York, NY 10019-6131t +1.212.858.1171 | m [email protected] | website bio<image001.png><image002.png>
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