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Full title: Motion to Seal re: The Limited Objection and Reservation of Rights of the Official Committee of Unsecured Creditors to Debtors Expedited Motion for Entry of an Order (I) Approving Debtors Key Employee Retention Plan, (II) Approving Debtors Key Employee Incentive Plan, and (III) Granting Related Relief.. Filed by Michael J. Viscount Jr. on behalf of Official Committee of Unsecured Creditors. (Attachments: # (1) Proposed Order) (Viscount, Michael)

Document posted on Nov 10, 2021 in the bankruptcy, 6 pages and 0 tables.

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The Official Committee of Unsecured Creditors (the “Committee”) for Aluminum Shapes, L.L.C. (the “Debtor”) files this motion (the “Motion”) for entry of an order (the “Order”), substantially in the form attached hereto as Exhibit A, pursuant to section 107(b) of Title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), Rule 9018 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and D.N.J. LBR 9018-1 authorizing the Committee to file under seal its Limited Objection and Reservation of Rights (the “Objection”) to the Debtor’s Expedited Motion for Entry of An Order (I) Approving Debtor’s Key Employee Retention Plan, (II)Key Employee Incentive Plan and all exhibits thereto (the “Rosenthal Declaration” and collectively with the Magner Declaration, the “Declarations”); and (iii) Exhibits 1 and 2 attached to the Proposed Order Approving Debtor’s Key Employee Retention Plan and Debtor’s Key Employee Incentive Plan (the “Proposed Order” together with the Declarations the “Sealed Documents”) be filed under seal.Out of an abundance of caution and with deference to the Debtor’s Motion to Seal, the Committee requests that this Court seal its Objection as it incorporates information referenced in the Sealed Documents.(In re Orion Pictures Corp.), 21 F.3d 24, 28 (2d Cir. 1994) (“Commercial information has been defined as information which could cause an unfair advantage to competitors by providing them with information as to the commercial operations of the debtor.’” (quoting Ad Hoc Protective Comm.WHEREFORE, for the reasons set forth herein, the Committee respectfully requests that the Court enter an order, substantially in the form attached as Exhibit A, (i) authorizing the Committee to the file its Objection under seal and (ii) granting such other relief as may be just and proper.

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY
Caption in Compliance with D.N.J. LBR 9004-1(b)

FOX ROTHSCHILD LLP
1301 Atlantic Avenue
Midtown Building, Suite 400
Atlantic City, NJ 08401-7212
Michael J. Viscount, Esq.
Martha B. Chovanes, Esq.
Joseph J. DiPasquale, Esq.
Michael R. Herz, Esq.
mviscount@foxrothschild.com
mchovanes@foxrothschild.com
jdipasquale@foxrothschild.com
mherz@foxrothschild.com
Telephone: (609) 348-4515
Facsimile: (609) 348-6834

Counsel to the Official Committee of Unsecured
Creditors
In Re:

ALUMINUM SHAPES, L.L.C.,

Debtor.
MOTION FOR ENTRY OF AN ORDER UNDER 11 U.S.C. § 107(b), FED. R. BANKR. P. 9018 AND D.N.J. LBR 9018-1 AUTHORIZING FILING UNDER SEAL THE LIMITED OBJECTION AND RESERVATION OF RIGHTS OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO DEBTOR’S EXPEDITED MOTION FOR ENTRY OF AN ORDER (I) APPROVING DEBTOR’S KEY EMPLOYEE RETENTION PLAN, (II) APPROVING DEBTOR’S KEY EMPLOYEE INCENTIVE PLAN, AND (III) GRANTING RELATED RELIEF The Official Committee of Unsecured Creditors (the “Committee”) for Aluminum Shapes, L.L.C. (the “Debtor”) files this motion (the “Motion”) for entry of an order (the “Order”), substantially in the form attached hereto as Exhibit A, pursuant to section 107(b) of Title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), Rule 9018 of the Federal

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Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and D.N.J. LBR 9018-1 authorizing the Committee to file under seal its Limited Objection and Reservation of Rights (the “Objection”) to the Debtor’s Expedited Motion for Entry of An Order (I) Approving Debtor’s Key Employee Retention Plan, (II) Approving Debtor’s Key Employee Incentive Plan, and (III) Granting Related Relief (the “Employee Plan Motion”) [D.I. 185]. In support of this Motion, the Committee respectfully states as follows: JURISDICTION 1. The United States Bankruptcy Court for the District of New Jersey (the “Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334(b). This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 2. Venue is proper pursuant to 28 U.S.C. § 1408 and 1409. 3. The statutory basis for the relief requested herein is section 107(b) of the Bankruptcy Code. BACKGROUND 4. On August 15, 2021 (the “Petition Date”), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code, commencing the above-captioned chapter 11 case. No trustee or examiner has been appointed in this matter. Pursuant to sections 1107(a) and 1108 of the Bankruptcy Code, the Debtor continues to manage its property and operate its business as a debtor in possession. 5. Effective as of August 30, 2021, the Office of the United States Trustee for Region 3 (the “U.S. Trustee”) appointed five members to the Committee pursuant to section 1102(a) of the Bankruptcy Code. The members of the Committee are: (i) Public Service Electric and Gas Company, (ii) Energy Power Investment Company, LLC (EPIC), (iii) Indigo Global, LLP, (iv)

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Nathan H. Kelman, Inc., and (v) Southeastern Extrusion & Tool, Inc. The Committee promptly retained its counsel, Fox Rothschild LLP, and its financial advisor, Berkeley Research Group, LLC (together with Fox Rothschild LLP, the “Committee Professionals”). 6. On October 19, 2021, the Debtor filed the Employee Plan Motion with the Court [D.I. 185]. 7. Also on October 19, 2021, the Debtor filed the Debtor’s Expedited Motion to Seal (the “Debtor’s Motion to Seal”) [D.I. 187] requesting that the (i) Declaration of Justin Magner in Support of Debtor’s Motion for Entry of an Order Approving Debtor’s Key Employee Retention Plan and Debtor’s Key Employee Incentive Plan and all exhibits thereto (the “Magner Declaration”); (ii) Declaration of Solomon Rosenthal in Support of Debtor’s Motion for Entry of an Order Approving Debtor’s Key Employee Retention Plan and Debtor’s Key Employee Incentive Plan and all exhibits thereto (the “Rosenthal Declaration” and collectively with the Magner Declaration, the “Declarations”); and (iii) Exhibits 1 and 2 attached to the Proposed Order Approving Debtor’s Key Employee Retention Plan and Debtor’s Key Employee Incentive Plan (the “Proposed Order” together with the Declarations the “Sealed Documents”) be filed under seal. 8. The Debtor provided the Committee’s counsel with a copy of the Sealed Documents. 9. Contemporaneously with the filing of this Motion, the Committee is filing its Objection to the Debtor’s Employee Plan Motion. Out of an abundance of caution and with deference to the Debtor’s Motion to Seal, the Committee requests that this Court seal its Objection as it incorporates information referenced in the Sealed Documents.

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RELIEF REQUESTED 10. By this Motion, the Committee seeks entry of an order, pursuant to section 107(b) of the Bankruptcy Code, Bankruptcy Rule 9018, and D.N.J. LBR 9018-1, authorizing the Committee to file its Objection under seal. The Debtor’s Motion to Seal asserts that the information in the Sealed Documents are both sensitive and confidential. Accordingly, because the Committee’s Objection makes direct reference to the sensitive and confidential information, the Committee requests that the Court permit the filing of its Objection under seal. BASIS FOR RELIEF 11. The Bankruptcy Code and the Bankruptcy Rules authorize this Court to limit the disclosure of certain confidential information to protect entities from potential harm. Section 107(b) of the Bankruptcy Code provides, in relevant part, “[o]n request of a party in interest, the bankruptcy court shall . . . protect an entity with respect to a trade secret or confidential research, development, or commercial information.” 11 U.S.C. § 107(b). 12. Bankruptcy Rule 9018 sets forth the procedure by which a party may seek an order pursuant to section 107 of the Bankruptcy Code protecting the disclosure of confidential information, and provides, in relevant part: “On motion or on its own initiative, with or without notice, the Court may make any order which justice requires (1) to protect the estate or any entity in respect of a trade secretary or other confidential research, development, or commercial information…” 13. The Court has broad authority to issue a protective order under Bankruptcy Rule 9018. See In re Global Crossing Ltd., 295 B.R. 720, 724 (Bankr. S.D.N.Y. 2003 (“When the requirements of Rule 9018 are satisfied, the authority to issue the resulting order is broad – ‘any order which justice requires.’ The Court notes that the authority goes not just to the protection of

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confidential documents, but to other confidentiality restrictions that are warranted in the interests of justice.”). D.N.J. LBR 9018-1 further provides, in relevant part, that “[a] party seeking to file a document under seal must file a motion[.]” D.N.J. LBR 9018-1. 14. Courts have defined “commercial information” under Section 107(b)(1) of the Bankruptcy Code as information that provides an unfair advantage to competitors because it reveals information regarding the disclosing entity’s commercial operations. See, e.g., Video Software Dealers Ass’n v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 28 (2d Cir. 1994) (“Commercial information has been defined as information which could cause an unfair advantage to competitors by providing them with information as to the commercial operations of the debtor.’” (quoting Ad Hoc Protective Comm. For 10 1/ % Debenture Holders v. Intel Corp. (In re Intel 2 Corp.), 17 B.R. 942, 944 (B.A.P. 9th Cir. 1982)). Moreover, as one bankruptcy Court has explained, “the commercial information that is entitled to protection under Code section 107(b) and Bankruptcy Rule 9018 must be viewed from the practical perspective.” See In re Global Crossing Ltd., 295 B.R. 720, 725 (Bankr. S.D.N.Y. 2003). 15. The Court should permit the Committee to file its complete Objection under seal because it contains information that the Debtor has described as sensitive and confidential, which if disclosed, could potentially cause harm to the Debtor, the estate, and its employees. According to the Debtor’s Motion to Seal, the Magner Declaration and Exhibits 1 and 2 attached to the Proposed Order include “both confidential research … and sensitive calculations and computations used” when designing the key employee retention plan (the “KERP”) and the key employee incentive plan (the “KEIP”). See Debtor’s Motion to Seal at ¶¶ 22 and 23. Additionally, the Debtor notes that the Rosenthal Declaration

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contains information that the Debtor believes to be “confidential and potentially scandalous and/or defamatory.” See id. at ¶¶ 24 and 25. 16. Accordingly, the Committee believes that it is appropriate and necessary to file its Objection under seal.1 CONCLUSION WHEREFORE, for the reasons set forth herein, the Committee respectfully requests that the Court enter an order, substantially in the form attached as Exhibit A, (i) authorizing the Committee to the file its Objection under seal and (ii) granting such other relief as may be just and proper. Dated: November 11, 2021 FOX ROTHSCHILD LLP /s/ Michael J. Viscount Michael J. Viscount, Esq. Martha B. Chovanes, Esq Joseph J. DiPasquale, Esq. Michael R. Herz, Esq. 1 The Committee recognizes that this Court has not yet ruled on the Debtor’s Motion to Seal. Additionally, the U.S. Trustee has filed the Objection of the United States Trustee to Debtor’s Expedited Motion to Seal [D.I. 237]. Therefore, if the Court denies the Debtor’s Motion to Seal and requires that the documents be filed with the Court, the Committee shall file a public version of its Objection based on the Court’s instruction.

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