United States District Court, E.D. Virginia, Richmond Division
Hannah, Lauck, United States District Judge
matter comes before the Court on Appellant Mar-Bow Value
Partners, LLC's ("Mar-Bow") appeal from several
orders of the United States Bankruptcy Court for
the Eastern District of Virginia (the "Bankruptcy
Court"), Appellee McKinsey Recovery & Transformation
Services US, LLC's ("McKinsey") Motion to
Dismiss Appeal of Mar-Bow Value Partners, LLC as Equitably
Moot (the "Motion to Dismiss as Equitably Moot"),
(ECF No. 32), and McKinsey's Motion to Dismiss Appeal of
Mar-Bow Value Partners, LLC for Lack of Standing (the
"Motion to Dismiss for Lack of Standing"), (ECF No.
37). Mar-Bow, McKinsey, and Alpha Natural Resources
("ANR") have all filed their respective briefs,
(ECF Nos. 24, 35, 38, 47), Mar-Bow has responded to the
Motion to Dismiss as Equitably Moot and the Motion to Dismiss
for Lack of Standing (ECF Nos. 33, 43), and McKinsey has
replied, (ECF Nos. 34, 46). The Court dispenses with oral
argument because the materials before it adequately present
the facts and legal contentions, and argument would not aid
the decisional process. Accordingly, the matters are ripe for
disposition. The Court exercises jurisdiction pursuant to 28
U.S.C. § 158(a)(1). For the reasons that follow, the Court
will grant both motions to dismiss and dismiss Mar-Bow's
Standard of Review
reviewing a decision of the bankruptcy court, a district
court functions as an appellate court and applies the
standards of review generally applied in federal courts of
appeal." Paramount Home Entm't Inc. v. Circuit
City Stores, Inc., 445 B.R. 521, 526-27 (E.D. Va. 2010)
(citing In re Webb, 954 F.2d 1102, 1103-04 (5th Cir.
1992)). The district court reviews the bankruptcy court's
legal conclusions de novo and its factual findings
for clear error. In re Harford Sands Inc., 372 F.3d
637, 639 (4th Cir. 2004). A finding of fact is clearly
erroneous if a court reviewing it, considering all of the
evidence, "is left with the definite and firm conviction
that a mistake has been committed." Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985); accord In
re Mosko, 515 F.3d 319, 324 (4th Cir. 2008). In cases
where the issues present mixed questions of law and fact, the
Court will apply the clearly erroneous standard to the
factual portion of the inquiry and de novo review to
the legal conclusions derived from those facts. Gilbane
Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895,
905 (4th Cir. 1996).
this appeal arises in the context of a chapter 11 bankruptcy,
dispute before the Court has little to do with the bankruptcy
itself. The conflict before the Court is between McKinsey, a
professional firm employed by ANR and many of its
subsidiaries, the debtors in the underlying bankruptcy action
(collectively, the "Debtors"), and Mar-Bow, an
unsecured creditor of the Debtors. From the time Mar-Bow
first appeared in the bankruptcy action, it objected
strenuously and continually to the sufficiency of disclosures
that the Bankruptcy Rules require McKinsey, employed to
assist with the Debtors' reorganization in this
bankruptcy action, to make. Each appeal before the Court
attempts to revisit that same issue: whether McKinsey fully
complied with Federal Rule of Bankruptcy Procedure
The Parties Relevant to the Instant Appeal
Debtors-Alpha Natural Resources and many of its
subsidiaries-are "one of the largest coal suppliers in
the United States." (McKinsey Br. 15, ECF No. 38.) The
Debtors filed for chapter 11 protection in August 2015 in
part because of an "historic downturn in their
industry." (July 7, 2016 Hr'gTr. 23.)
Recovery and Transformation Services ("McKinsey")
"is a global, full service restructuring advisory and
crisis management firm that... supports] companies through
all aspects of recovery and transformation." (First
Carmody Decl. 3, App. 31.) Essentially, McKinsey advises
struggling businesses on how to improve their profitability,
and helps businesses implement the changes it suggests.
McKinsey has experience providing chapter 11 advisory
services, and in helping struggling businesses increase their
as relevant to the bankruptcy action, is an unsecured
creditor of the Debtors. On March 23, 2016, almost nine
months after the Debtors began their chapter 11
reorganization, Mar-Bow filed a proof of claim in the amount of
$1, 250, 000.00. The record lacks clarity about the precise
nature of Mar-Bow's business, but Mar-Bow is
"beneficially owned and funded by" Jay Alix, the
founder of the firm "AlixPartners." (Alix Decl. 1,
Mar-Bow Mot. Compel Ex. A, App. 431.) AlixPartners is a
consulting firm that competes with McKinsey in the turnaround
Background of the Underlying Bankruptcy
August 3, 2015, the Debtors began the bankruptcy proceedings
by filing voluntary petitions for relief under chapter 11 of
the United States Bankruptcy Code, which allows for
reorganization-rather than liquidation-of a bankruptcy
estate. The Bankruptcy Court consolidated all the petitions
for procedural purposes only, meaning that one chapter 11
bankruptcy action was pending.
weeks later, on August 24, 2015, the Debtors filed an
application in the Bankruptcy Court requesting permission to
employ McKinsey as a turnaround advisor for the pendency of
the bankruptcy case (the "Retention
Application"). The Debtors sought to retain McKinsey
"as their turnaround advisor... to assist the Debtors
with the development and refinement of their strategic
business plan." (Retention Appl. 2-3, App. 2-3.) On
September 17, 2015, the Bankruptcy Court granted the
Retention Application and authorized the Debtors to retain
McKinsey as turnaround advisor.
March 23, 2016, more than six months after McKinsey's
employment had been approved, Mar-Bow filed its proof of
claim against ANR, entering the bankruptcy proceeding. On May
1, 2016, Mar-Bow filed its first notice of appearance in the
bankruptcy proceeding. Since entering the bankruptcy
proceeding, Mar-Bow has raised the issue of McKinsey's
Rule 2014 disclosures to the Bankruptcy Court formally at
least five times. The Court does not see-and neither party
identifies-any other action by Mar-Bow in the Bankruptcy
12, 2016, five days after a lengthy evidentiary hearing on
the matter, the Bankruptcy Court entered a written order
confirming the Debtors' Reorganization
Plan.The Reorganization Plan became effective
on July 26, 2016. Additional proceedings have taken place in
the Bankruptcy Court since then, and Mar-Bow has continued to
object to McKinsey's Rule 2014 disclosures.
McKinsey's Employment as Turnaround Advisor for the
August 24, 2015, three weeks after filing for bankruptcy, the
Debtors filed the Retention Application in the Bankruptcy
Court requesting permission to employ McKinsey as a
turnaround advisor for the pendency of the bankruptcy case.
The Debtors sought to retain McKinsey "as their
turnaround advisor... to assist the Debtors with the
development and refinement of their strategic business
plan." (Retention Appl. 2-3, App. 2-3.)
accordance with Federal Rule of Bankruptcy Procedure 2014(a),
the Debtors attached to the Retention Application a copy of
the "Amended and Restated Agreement" Letter, (the
"Engagement Letter") which detailed the proposed
terms of McKinsey's employment as turnaround advisor for
the Debtors, and the proposed fee arrangement. As turnaround
advisor, McKinsey's role was to help the Debtors save
money and become more profitable, which would in turn
increase the bankruptcy estate and result in maximum recovery
for the Debtors' creditors. The Debtors requested
that McKinsey's employment be approved as of August 3,
2015, the date the Debtors filed for bankruptcy, because
McKinsey had been working with the Debtors since June 29,
2015, before the Debtors filed for bankruptcy.
term of McKinsey's employment, the Debtors agreed to
indemnify McKinsey for a broad array of potential liabilities
arising out of McKinsey's employment as turnaround
advisor. McKinsey would not be indemnified, however,
from liabilities resulting from its own "willful
misconduct or gross negligence." (Engagement
Letter 6, App. 24.)
Retention Application was unopposed, and on September 17,
2015, the Bankruptcy Court granted the Retention Application,
approved the terms of the Engagement Letter, and authorized
the Debtors "to employ and retain [McKinsey] as
turnaround advisor." (Retention O. 1-6, Supp. 291-97.)
These events all occurred six months before Mar-Bow first
appeared in the bankruptcy case.
McKinsey's Rule 2014 Disclosures
Rule of Bankruptcy Procedure 2014(a) requires that any
application for the employment of professionals
be accompanied by a verified statement of the person to be
employed setting forth the person's connections with the
debtor, creditors, any other party in interest, their
respective attorneys and accountants, the United States
trustee, or any person employed in the office of the United
Fed. R. Bankr. P. 2014(a). On its own and in response to
motions, McKinsey filed multiple declarations pursuant to
Rule 2014. Mar-Bow objected repeatedly to these disclosures,
even as they became increasingly more specific and detailed.
Mar-Bow, it seems, especially objected- and continues to
object-to the aspect of McKinsey's disclosures that the
Bankruptcy Court reviewed only in camera. Mar-Bow
seeks to place these disclosures on the public record. A
summary of McKinsey's Rule 2014 disclosures follows.
McKinsey's First Set of Rule 2014
to Rule 2014, the Debtors attached to the Retention
Application the "Declaration of Kevin Carmody" (the
"First Carmody Declaration"), which included a
"Disclosure Regarding [McKinsey's]
Disinterestedness." (First Carmody Decl. 10-18, App.
39-47.) In the Disclosure Regarding Disinterestedness,
Carmody explained the process McKinsey used to identify
any connections it had with the Debtors, the United States
Trustee and the Bankruptcy Court, and parties
"identified on the interested parties list, " (the
"Interested Parties"). (Id. at 10-18, App.
39-47.) The First Carmody Declaration also outlined
McKinsey's connections with the Interested Parties.
First Carmody Declaration disclosed McKinsey's
connections by category, number of connections, and general
nature of work performed for the connection, rather than
identifying connections with the interested parties by name.
For example, McKinsey disclosed that a member of its team
"attended a proposal meeting and submitted a proposal to
a Major Competitor that was not accepted."
(Id. at 12, App. 41 (emphasis added).) McKinsey also
reported specific connections with "one Major Unsecured
Noteholder, one Lender Under A/R Facility, three Major
Customers, one Revolving Facility Lender, one Other Major
Supplier of Goods and Services, one Party to Material
Unexpired Leases, and one Party to Joint Ventures, "
among numerous other categories and connections.
McKinsey's initial disclosure of its connection with
Interested Parties by category became a source of controversy
in Mar-Bow's subsequent objections to McKinsey's Rule
Bankruptcy Court reviewed the First Carmody Declaration
before entering the Retention Order approving McKinsey's
employment as turnaround advisor. (Retention O. 2, Supp.
292.) On September 17, 2015, after its review, the Bankruptcy
Court found that McKinsey qualified as "a
'disinterested person' as such term is defined under
section 101(14) of the Bankruptcy Code." (Retention O.
2, Supp. 292.)
McKinsey's Subsequent Rule 2014
filed two supplemental Rule 2014 Disclosures, even before any
objections had been lodged to its initial disclosures. On
November 9, 2015, and March 25, 2016, McKinsey filed
Supplemental Declarations of Kevin Carmody (respectively, the
"Second Carmody Declaration" and the "Third
Carmody Declaration"). Each declaration was "in
support of the Retention Application, and intended to
"provide certain additional information." (Second
Carmody Decl. 2, App. 67; Third Carmody Decl. 1-2, App.
72-73.) In each declaration, Carmody swore that McKinsey
"continues to monitor the list of parties on the
Interested Parties List against its own client records."
(Second Carmody Decl. 3, App. 68; Third Carmody Decl. 2, App.
73.) Carmody also disclosed additional connections-again by
category, number, and general nature of the work McKinsey
completed for the connection.
The Rule 2014 Objections
discussed earlier, and most relevant to Mar-Bow's
objections to McKinsey's Rule 2014 disclosures, Federal
Rule of Bankruptcy Procedure 2014(a) requires that a
professional seeking employment in a bankruptcy proceeding
file "a verified statement of the person to be employed
setting forth the person's connections with the debtor,
creditors, any other party in interest, their respective
attorneys and accountants, the United States trustee, or any
person employed in the office of the United States
trustee." Fed.R.Bankr.P. 2014(a). Rule 2014 contains no
definition of "connections, " nor does it explain
further the level of detail required in a professional's
Rule 2014 disclosures.
The U.S. Trustee's Rule 2014 Objection: The U.S.
Trustee's Motion to Compel
Bankruptcy Court first heard an objection to McKinsey's
Rule 2014 disclosures when the United States Trustee (the
"U.S. Trustee") filed a motion to compel
McKinsey to comply with Rule 2014 (the "U.S. Trustee
Motion to Compel"). The U.S. Trustee filed its Motion to
Compel on May 3, 2016, nine months after the bankruptcy
proceeding began and two days after Mar-Bow first appeared in
the proceeding. In its Motion to Compel, the U.S.
Trustee asserted that McKinsey's Rule 2014 disclosures
failed to comply with Bankruptcy Rules. Specifically,
McKinsey's "declarations disclosed only vague and
amorphous connections to creditors and other major parties in
interest, " and "neither identified these
connections by name nor provided any insight into the nature
of the connections." (U.S. Trustee Mot. Compel 1-2, App.
78-79.) The U.S. Trustee asked the Bankruptcy Court to compel
McKinsey to file additional disclosures, including
a supplemental declaration stating, at a minimum, (a) the
identity of the entities on the Interested Parties List . . .
with which McKinsey RTS and any of its affiliates have a
connection . . . and (b) a general description of the
connection with or work performed for these entities.
(Id. at 2, App. 79.)
U.S. Trustee expressed concern that McKinsey's
"failure to provide complete disclosures may also cast a
cloud over the Debtors' restructuring strategy."
(Id. at 11, App. 88.) Because McKinsey had assisted
the Debtors in negotiating the terms of a financing agreement
and the overall restructuring strategy, the U.S. Trustee
argued that the Bankruptcy Court "should order McKinsey
to supplement its disclosures so that all interested parties
can meaningfully consider whether the Proposed Plan
Transactions may be tainted by divided loyalties."
(Id. at 12, App. 89.) Apparently anticipating that
McKinsey might cite confidentiality concerns as a reason for
limiting its disclosures, the U.S. Trustee asserted that
"McKinsey's private contractual agreements do not
and cannot supersede the ethics and disclosure requirements
of the Bankruptcy Code and Rules." (Id. at 13,
19, 2016, sixteen days later, the U.S. Trustee submitted a
"Stipulation Resolving Motion of the [U.S. Trustee
Motion to Compel]" (the "U.S. Trustee
Stipulation"). The U.S. Trustee Stipulation stated that
U.S. Trustee and McKinsey had engaged in "extensive
discussions" to resolve the U.S. Trustee's concerns
regarding McKinsey's Rule 2014 disclosures. (U.S. Trustee
Stip. 2, App. 105.) After these discussions, McKinsey had
agreed to file an additional declaration disclosing more
information about its connections with Interested Parties.
same day, pursuant to the U.S. Trustee Stipulation, McKinsey
filed a third Supplemental Declaration of Kevin Carmody (the
"Fourth Carmody Declaration"). The Fourth Carmody
Declaration included more detailed information about
McKinsey's connection to the Interested Parties. It also
disclosed the names of various Interested Parties that
McKinsey had "served" in the past two years.
Carmody swore that McKinsey had only served those clients
"on matters unrelated to the Debtors and their chapter
11 cases." (Fourth Carmody Decl. 6, App. 99.)
still omitted the names of at least three connections, which
it identified as "confidential clients."
(Id.) Before filing the Fourth Carmody Declaration,
McKinsey "reviewed its confidentiality obligations to
each of its clients identified as a Major Stakeholder or
Major Competitor and, to the extent necessary, ... requested]
the consent of such client to disclose its name" in the
Fourth Carmody Declaration. (Id. at 3, App. 96.)
Clients who did not consent to the disclosure of their names
were identified as "confidential clients."
(Id. at 4, App. 97.)
U.S. Trustee stated that it was satisfied that McKinsey's
additional disclosures in the Fourth Carmody Declaration
complied with Rule 2014.
Mar-Bow Remained Unsatisfied with McKinsey's
Mar-Bow's First Rule 2014 Objection: Mar-Bow's
Motion to Compel
6, 2016, dissatisfied with the U.S. Trustee's proposed
resolution of McKinsey's disclosures, Mar-Bow filed a
44-page Motion to Compel McKinsey to Comply with Rule 2014
(the "Mar-Bow Motion to Compel"). Mar-Bow asserted
that "McKinsey's four disclosure declarations have
not allowed the Court the opportunity to ... independently
assess McKinsey's qualifications to serve as a fiduciary
for the Debtors." (Mar-Bow Mot. Compel 5, App. 387.)
Mar-Bow voiced sweeping policy arguments that McKinsey's
allegedly insufficient disclosures threatened both the
bankruptcy system's ability to function and the
integrity of the bankruptcy proceeding itself.
argued that McKinsey's disclosures were insufficiently
specific to allow the Bankruptcy Court to evaluate
McKinsey's disinterestedness. "McKinsey's broad,
generic statements cannot supersede the specific descriptions
of connections that case law interpreting Rule 2014 requires
and cannot trump the obligation to perform a good faith
investigation and to comply with the rule's
requirements." (Id. at 21, App. 403.) Mar-Bow
also contended that the process by which McKinsey conducted
its search for connections was inadequate, rendering its
Mar-Bow Motion to Compel sought an order from the Bankruptcy
Court requiring McKinsey to submit significant additional
disclosures and detail regarding McKinsey's connections
to the interested parties in the case. Mar-Bow also asked the
Bankruptcy Court to suspend payment of McKinsey's fees,
and to disgorge all of McKinsey's previously paid fees
"in the event that McKinsey fails to comply with the
Court's order or the Court determines that McKinsey is
not qualified to serve as a professional" in the case.
(Id. at 42-43, App. 424-25.) Mar-Bow further
requested an order that "McKinsey, its affiliates, and
its professionals, shall not be entitled to a release,
indemnity or exculpation of any kind or nature in this
case, whether through a plan of reorganization or
otherwise." (Id. at 44, App. 426.)
The Bankruptcy Court's Hearing on Mar-Bow's
Motion to Compel
28, 2016, the Bankruptcy Court held a hearing on
Mar-Bow's Motion to Compel. In the hearing, the
Bankruptcy Court allowed lengthy argument from both sides,
actively engaging the parties as to their positions. Brushing
aside some of McKinsey's procedural arguments in
opposition to Mar-Bow's Motion to Compel, the Bankruptcy
And that's the point I was ... trying to get across a few
minutes ago about why it is so important that parties in
interest bring these kinds of matters to the attention of the
Court so the Court can deal with them. And just because
we've got a great watering-down of Rule 2014 because
nobody is, apparently, complying with the rule, doesn't
mean that the rule shouldn't be enforced. It should be
(June 28, 2016 Hr'g Tr. 127, App. 2905.) The Bankruptcy
Court identified "three different categories of
things" that would affect its decision on the Mar-Bow
Motion to Compel:
One is these 121 actual known clients that have not been
identified. Second is the investments of McKinsey Investment
in other entities that [McKinsey] say[s] that if it does
exist, should be disclosed .... And third is, . .. what were
the results to the [email] survey?
(Id. at 134, App. 2912.)
Bankruptcy Court solicited a statement from the U.S. Trustee,
who "g[a]ve the Court pretty much a synopsis of what
came about, and how [the Trustee Motion to Compel] ended up
being withdrawn at the end." (Id. at 143, App.
2921.) Specifically, the U.S. Trustee stated that, after
McKinsey filed the Fourth Carmody Declaration, "the U.S.
Trustee was satisfied that McKinsey possessed no conflicts
and had greatly improved the public record of its
connections." (Id. at 145, App. 2923.) When
asked whether the U.S. Trustee believed that McKinsey's
disclosures satisfied Rule 2014, the Trustee responded,
"If it were left up to me, I think my solution to this
problem would be for [McKinsey] to make the list [of their
confidential clients] available and file it and ask that it
be filed under seal." (Id. at 145-6, App.
lengthy argument in which the Bankruptcy Court heard from
Mar-Bow, McKinsey, the U.S. Trustee, and ANR, the Bankruptcy
Court ruled that it would require McKinsey to provide the
Bankruptcy Court with additional information. The Bankruptcy
Court stated that it would "require McKinsey to disclose
the 121 [confidential] clients to the Court in camera."
(Id. at 157, App. 2935.) The Bankruptcy Court
"allow[ed] McKinsey to negotiate ... with the debtor,
with the committee, with the Office of the U.S. Trustee, and
[Mar-Bow]" in order to have "the proper
confidentiality provisions before anything is
disclosed." (Id.) The Bankruptcy Court stated
purpose here is not to destroy McKinsey's business model
[of confidentiality].It's certainly not to give a
competitive advantage to a competitor. The Court's going
to be completely respectful of all of that, but I am not
going to do anything to impair the integrity of Rule
2014----- . . . McKinsey's a professional. . . .
They're a fiduciary. They're employed by the
fiduciary. They're held to the same standard.
(Id. at 158, App. 2936.) The Bankruptcy Court also
ordered that McKinsey provide it with information that
"the [Bankruptcy] Court needs to have ... in order to
make the disclosures that have been provided in this case
The Bankruptcy Court's Order Compelling
1, 2016, three days after argument on Mar-Bow's Motion to
Compel, the Bankruptcy Court entered an order granting
Mar-Bow's Motion to Compel in certain respects, as stated
at the June 28, 2016 Hearing (the "Order Compelling
Compliance"). Specifically, the Bankruptcy Court ordered
McKinsey to deliver to the Bankruptcy Court, for in
(1) "A list containing the names of the 121 undisclosed
connections discussed at the hearing, together with
sufficient information for the Court to determine (1) whether
any of those connections constitute an interest that is
adverse to the estate and (2) whether McKinsey is
disinterested, all as required by 11U.S.C. §327";
(2) "Identification of Interested Parties that manage
investments for MIO Partners, Inc., " a McKinsey
(3) "Identification of Interested Parties in which MIO
owns securities, " subject to several limitations";
(4) "The survey response rates to the email
surveys" sent by McKinsey to determine the presence of
connections, "together with sufficient information for
the Court to determine (1) whether any of those connections
constitute an interest that is adverse to the estate and (2)
whether McKinsey is disinterested, all as required by 11
U.S.C. § 327."
Compelling Compliance 2-3, App. 1520-21.)
Mar-Bow's Second Rule 2014 Objection: Mar-Bow's
Motion to "Clarify''
5, 2016, four days later, Mar-Bow filed a "Motion to
Clarify" the Bankruptcy Court's July 1, 2016 Order.
Mar-Bow contended that, although the Order Compelling
Compliance provided for in camera review of
McKinsey's additional disclosures and allowed the U.S.
Trustee and professionals employed by the Debtors to review
the additional information, the Order Compelling Compliance
"does not appear to allow Mar-Bow's professionals to
review" the information. (Mot. Clarify 1-2, App.
1525-56.) Although Mar-Bow expressly stated that its Motion
to Clarify was "not a motion for reconsideration, "
(id. at 1, App. 1525), Mar-Bow devoted more than a
full page to argument about why Mar-Bow should be allowed to
review the additional information because Mar-Bow was the
party "that first shed light on McKinsey's failure
to comply with Rule 2014, " and the party who "has
demonstrated the greatest commitment to assist the Court in
fulfilling its obligation to maintain the integrity of its
processes through strict enforcement of... Rule 2014, "
(id at 2-3, App. 1526-27).
The Bankruptcy Court's Rulings on Mar-Bow's
Motion to "Clarify"
7, 2016, the Bankruptcy Court heard argument on Mar-Bow's
Motion to Clarify. Mar-Bow reasserted its position that
"it seems a bit anomalous, and frankly, a bit
inequitable [for Mar-Bow] to do all the work to negotiate the
confidentiality agreement, and then not participate in the
process that that confidentiality agreement designs."
(July 7, 2016 Hr'g Tr. 16, App. 2988.) The Bankruptcy
Court also heard from McKinsey and the U.S. Trustee, and
stated that it would "reserve for a later time whether
Mar-Bow or anybody else was going to receive [McKinsey's
additional disclosures]." (Id. at 21, App.
time of hearing, the Bankruptcy Court-remarkably, given the
timing of Mar-Bow's Motion to Clarify-had already
reviewed the additional information it ordered McKinsey to
disclose. The Bankruptcy Court stated, based on its review of
the in camera production, that it was
"completely satisfied that there is not any type of
disinterested problem with McKinsey going forward."
(Id.) It further stated that it was "very
satisfied with the information in" McKinsey's in
camera disclosure. (Id.)
15, 2016, the Bankruptcy Court entered an Order addressing
Mar-Bow's Motion to Clarify (the "Clarification
Order"). The Bankruptcy Court ordered that
twenty-one days after the parties had reviewed the
accompanying Confidentiality Order, the U.S. Trustee could
file "a recommendation with the Court whether any
further public disclosures should be made."
(Clarification O. 2, App. 1950.) After the U.S. Trustee filed
its recommendation, the Bankruptcy Court would determine
whether McKinsey would be required to file "further
public disclosures." (Id.) The Bankruptcy Court
denied any further requests in Mar-Bow's Motion to
July 15, 2016, the Bankruptcy Court entered a
"Confidentiality Order Pursuant to Order Dated July 1,
2016" (the "Confidentiality
Order"). The Confidentiality Order governed the
"information submitted to the [Bankruptcy] Court for in
camera review [sic] pursuant to the July 1 Order,
relating to the disclosure of [McKinsey's] connections
under Bankruptcy Rule 2014 and any further information
McKinsey ... provides to satisfy such requirements."
(Confidentiality O. 2, App. 1977.) The Confidentiality Order
provided that McKinsey could designate a document as
confidential by placing the words "CONFIDENTIAL -
SUBJECT TO PROTECTIVE ORDER" on the document, which
would constitute a "certification by McKinsey ... that
the information is treated as confidential by McKinsey ...
and its affiliates." (Id. at 2-3, App.
1977-78.) The Confidentiality Order also designated
categories of persons allowed to review confidential
information, and expressly excluded people who are
"employees, directors, or officers of a competitor of
McKinsey RTS and its affiliates" or people who are
"a direct competitor of McKinsey RTS or its
affiliates." (Id. at 4, App. 1979.)
The U.S. Trustee Recommended that McKinsey
Publicly File Additional Rule 2014
August 5, 2016, the U.S. Trustee filed a "Statement of
the Recommendation of the United States Trustee on Public
Disclosures by McKinsey RTS" (the "U.S. Trustee
Recommendation"). The U.S. Trustee acknowledged that the
Bankruptcy Court had already found that McKinsey was a
disinterested person, and "the sole issue for
adjudication now is what further public disclosures McKinsey
... should make." (U.S. Trustee Rec. 3, App. 2353.) The
U.S. Trustee recommended that McKinsey make additional public
disclosures "[b]ecause Rule 2014 does not define
connections, and because transparency is critical to the
integrity of the bankruptcy process." (Id.) The
U.S. Trustee recommended that McKinsey make the following
1) "Every name on the list of interested parties
provided by the Debtors ("interested parties'
list") with whom either McKinsey RTS or personnel
borrowed from an affiliate thereof, has a connection and a
statement whether any services provided were related to or
adverse to the Debtors ... for a period of three years before
the petition date";
2) "Every name on the interested parties' list who
was a client of any McKinsey RTS affiliate with respect to
'a direct commercial relationship or transaction'
with the Debtors ... for a period of three years before the
3) "Every name on the interested parties' list that
previously employed McKinsey RTS personnel ... for a period
of three years before the petition date"; and,
4) "Every name of a professional on the interested
parties' list that represents or represented McKinsey RTS
or its affiliates ... for a period of three years before the
(Id. at 3-4, App. 2353-54.) The U.S. Trustee
asserted that "[t]he disclosures made to date, with the
additional disclosures recommended here, will satisfy Rule
2014." (Id. at 4, App. 2354.)
McKinsey Publicly Filed Additional Rule 2014
same day, McKinsey filed the "Declaration of Kevin
Carmody in Respect of Recommendation of [U.S.] Trustee"
(the "Fifth Carmody Declaration"). The Fifth
Carmody Declaration "provide[d] th[e] disclosure"
that the U.S. Trustee recommended. (Fifth Carmody Decl. 2,
The Debtors* Reorganization Plan
Mar-Bow and McKinsey were litigating the sufficiency of
McKinsey's Rule 2014 disclosures, the rest of the
bankruptcy proceedings continued to move forward. On May 25,
2016, the Debtors filed the "Second Amended Joint Plan
of Reorganization of Debtors and Debtors in Possession"
(the "Reorganization Plan" ...