Avaya's Motion for Final Decree

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Avaya's Motion for Final Decree

Postby tfelix » Fri Apr 26, 2019 5:17 pm

Did anyone else get an email or correspondence announcing Docket 2330 which states:

"Notice of Presentment of Avaya Inc.'s Motion for a Final Decree Closing Avaya Inc.'s Chapter 11 Case filed by Jonathan S. Henes on behalf of Avaya Inc.. with presentment to be held on 5/31/2019 at 12:00 PM at Courtroom 723 (SMB) Objections due by 5/17/2019"

The docket states:

"As of the date hereof, all Claims against the Debtors have either been Allowed or disallowed, whether by agreement or order of the Court, pursuant to the Plan other than two disputed Claims: (a) Claim No. 3103, filed by Mr. Wattenmaker, and (b) Claim No. 3533, filed by SAE Power Incorporated and SAE Power Company (collectively, “SAE”)."

Does this mean the entire bankruptcy is settled? Are we getting any more money?
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Re: Avaya's Motion for Final Decree

Postby remberger » Fri Apr 26, 2019 5:56 pm

Last week I asked a K&E attorney if they could estimate how much we were likely to receive. As of yesterday, they were still researching that answer for me.

In today's filing, Avaya states:

"Avaya has made the first interim distribution payment to Holders of Allowed General Unsecured Claims and all other payments required to be made pursuant to the Plan, and the remaining distribution (which is expected to be de minimis) will be made from the established General Unsecured Recovery Cash Pool and General Unsecured Recovery Equity Reserve in accordance with the Plan."

They say that any additional amount would be "de minimus" (Very Small). Of course what is Very Small to Avaya could be significant to us.

I will continue to press for an answer>

Bob Emberger
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Re: Avaya's Motion for Final Decree

Postby remberger » Tue May 07, 2019 7:45 am

The following is a copy of a letter I sent to Court Today:

May 7, 2019
1032 Resolution Drive
Bethlehem, PA 18017

Honorable Stuart M Bernstein
One Bowling Green, Room 729
New York, NY 10004

Your Honor:

RE: Case No. 17-10089 (SMB) Avaya , et.al - MOTION FOR A FINAL DECREE CLOSING AVAYA INC.’S CHAPTER 11 CASE

Prior to issuing your “Final Decree”, I would like to raise two issues for your consideration.

1) I noticed in the quarterly report for March (Docket 2328), on page 6 of 9, Avaya shows $148,468 of Interest Income on MMF for the Professional Fee Escrow. Note 1 for that entry says “The Professional Fee Escrow Balance is invested in a US Money Market fund. The interest is received monthly”. No interest is posted to the “GUC Escrow”. Avaya’s reorganization plan was approve November 28, 2017. Payments from the fund did not begin until mid-October, 2018, approximately 10 months later. I do not know what the law requires, but I question whether Avaya met its fiduciary obligation to the General Unsecured Creditors if it did not invest the GUC Escrow for that period.

2) Avaya has proposed not making any additional distributions from the GUC Escrow until the remaining two cases (3103 – Wattenmaker & 3533 – SAE Power). Per its filing, Avaya expects the Wattenmaker case to be resolved prior to filing for its “Final Decree”. The SAE Power matter may drag on indefinitely. While in Avaya’s mind, the final distribution is expected to be “de minimus”, what is a small amount to Avaya can be significant to a retiree who has lost his Supplemental Pension. For example, Avaya might consider a 0.5% adjustment to be “de minimus”, given the approximately 19.7% already distributed. However, that would be $2,000 on my claim. I have asked Avaya for an estimate regarding the size of the supplemental distribution. I have not received that estimate. I would propose that the final decree be delayed until Avaya makes a second supplemental distribution of all funds other than the reserve for SAE Power to its unsecured creditors.

Respectfully submitted,

/s/ Robert M. Emberger
Robert M. Emberger



cc:
Kirkland & Ellis LLP
Jonathan Henes, P.C. Esq.
601 Lexington Avenue
New York, NY 10022

Kirkland & Ellis LLP
Ameneh M. Bordi, Esq.
601 Lexington Avenue
New York, NY 10022

Kirkland & Ellis LLP
Patrick J. Nash, P.C. Esq.
300 North LaSalle Street
Chicago, IL 60654

Kirkland & Ellis LLP
Stephen Iacovo Esq.
300 North LaSalle Street
Chicago, IL 60654

Togut, Segal & Segal LLP
Albert Togut, Esq.
One Penn Plaza, Suite 3335
New York, NY 10119

Togut, Segal & Segal LLP
Frank A. Oswald, Esq.
One Penn Plaza, Suite 3335
New York, NY 10119

The United States Trustee for Region 2
Susan A. Arbeit, Esq.
201 Varick Street, Suite 1006
New York, NY 10014

Province, Inc.,
Peter Kravitz
2360 Corporate Circle, Suite 330
Henderson, NV 89074

Morrison & Foerster LLP
Lorenzo Marinuzzi, Esq.
250 West 55th Street
New York, NY 10019

Morrison & Foerster LLP
Erica Richards, Esq.
250 West 55th Street
New York, NY 10019

Kelley Drye & Warren LLP
James S. Carr, Esq.
101 Park Avenue
New York, NY 10178
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Re: Avaya's Motion for Final Decree

Postby maryannhorton » Fri May 17, 2019 3:39 pm

I've been getting notifications of a "Final" hearing on 5/30, but I have no idea what they are proposing to do. I did see Bob Emberger's letter, of which I am most appreciative.

What happens 5/30? Do they decide if there is any secondary distribution on our supplemental pensions?

Thanks,
Mary Ann
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Re: Avaya's Motion for Final Decree

Postby remberger » Thu May 30, 2019 8:07 am

Hi everyone,

As we wait to see if the court closes the book on the Avaya bankruptcy today, I thought I would give you a brief update. I recently wrote to one of Avaya’s attorneys. She got back to me on Monday and I talked with her yesterday. Here is what she wrote:

“You correctly note that there is approximately $2 million available for distribution among holders of allowed general unsecured claims, which includes claims that have been settled and those that have been litigated to a final claim amount. Some of this amount is attributable to general unsecured claimants who have not cashed their checks from the first round of distribution. We continue to do outreach to these parties to ensure that those who are entitled to a distribution do receive it. To the extent such parties do not claim their distribution within a year after it was made, the distribution is subject to re-allocation among holders of allowed unsecured claims.”

“We anticipate that a second round of distribution will be made to holders of allowed general unsecured claims of approximately 1% the allowed claim amount.”

What does that mean for us?

(1) If you have not cashed your first check, or if you think you were due a check and did not get one, you have 12 months from the time the original checks were issued to get this straightened out. By my calculation that is approximately the beginning of October. If this applies to you, CONTACT AVAYA IMMEDIATELY.

(2) For those of us who have received and cashed our first checks, GOOD NEWS. You will be getting a second (and possibly a third) check. It looks like we will be getting about $10 for each $1,000 of your claim (as valued by Avaya). For example, if Avaya valued your claim at $40,000 you would get an additional $400. When speaking with the attorney, she said it was Avaya’s intent to make the second distribution after the one year anniversary of the first check (in October) and before the end of this year (2019). A final distribution of pennies (my words) would occur when the final two claims were litigated or settled. She did say that if a solution to those 2 claims were imminent, Avaya might delay the second distribution to early next year and issue just one check. If you are in this category, you do not need to do anything.

I asked why we are not receiving interest on the money Avaya held between the plan approval in December of 2017 and the initial distribution in October 2018. She said the plan did not call for interest. That sounded pretty lame to me and perhaps Judge Bernstein will raise questions, but I doubt it. I will not be in court to follow up so we probably will not hear anything else for several days.

Best wishes to all,

Bob Emberger
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Re: Avaya's Motion for Final Decree

Postby Maddog » Thu May 30, 2019 9:16 am

Mr. Emberger, as always, thank you for your insight, persistence and generous info sharing. I doubt Avaya will ever be able to comprehend what a loss your retirement was to them. Again, many thanks.
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Re: Avaya's Motion for Final Decree

Postby lucycarlson105 » Thu May 30, 2019 9:43 am

Bob, thank you so much for all you've done for our group. I don't think we would have received anything if it weren't for you, so hats off to you!
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Re: Avaya's Motion for Final Decree

Postby remberger » Thu May 30, 2019 5:17 pm

As mentioned in my earlier posting:

(1) If you have not cashed your first check, or if you think you were due a check and did not get one, you have 12 months from the time the original checks were issued to get this straightened out. By my calculation that is approximately the beginning of October. If this applies to you, CONTACT AVAYA IMMEDIATELY..

At the end of this message is a copy of a letter sent by Avaya on January 22, 2019, to those who had not cashed their checks or whose checks were returned to Avaya. I am told that they will make one final attempt to contact people whose checks were not cashed.

If you have not received or cashed your check, or if you know of someone who is still looking for their check please make them aware of the rapidly approaching deadline.

Bob Emberger

AVAYA (logo)

January 22, 2019

Re: Notice of First Interim Distribution re: Avaya Inc. Bankruptcy Proceedings (Case No. 17-10089)

Dear (Redacted):

On August 22, 2018 Avaya Inc. and its affiliated debtors (collectively, the “Debtors”) filed the Debtors’ Motion for Entry of an Order (A) Establishing a Claims Reserve; (B) Authorizing Interim Distributions on Account of Allowed General Unsecured Claims; and (C) Granting Related Relief [Docket No. 2165] (the “Interim Distribution Motion”), seeking an authority to make an interim distribution to holders of general unsecured claims. On September 13, 2018 the Court approved the Debtors’ Interim Distribution Motion. See Docket No. 2194.

This letter is to inform you that on or around October 19, 2018, a check was sent to you in relation to this distribution process. According to our records, your check remains outstanding.

If you did not receive the check, please contact Prime Clerk immediately at 855-252-2156 or email avayainfo@primeclerk.com. Please have your claim number ready.

Please note that pursuant to Article VI.F.4 of the Second Amended Joint Chapter 11 Plan of Reorganization of Avaya Inc. and its Debtor Affiliates [Docket No. 1423] (the “Plan”):

“In the event that any distribution to any Holder is returned as undeliverable, no distribution to such Holder shall be made unless and until the Reorganized Debtors have determined the then-current address of such Holder, at which time such distribution shall be made to such Holder without interest; provided that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one year from the time of such distribution. After such date, all unclaimed property or interests in property shall be redistributed Pro Rata as provided under the Plan (it being understood that, for purposes of this Article VI.F.4, “Pro Rata” shall be determined as if the Claim underlying such unclaimed distribution had been disallowed) and all other unclaimed property or interests in property shall revert to the Reorganized Debtors without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial, or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder to such property or Interest in property shall be discharged and forever barred”.

“A distribution shall be deemed unclaimed if a holder has not: (a) accepted a particular distribution or, in the case of distributions made by check, negotiated such check; (b) given notice to the Reorganized Debtors of an intent to accept a particular distribution; (c) responded to the Debtors’ or Reorganized Debtors’ requests for information necessary to facilitate a particular distribution; or (d) taken any other action necessary to facilitate such distribution”.

If you did not receive your check, please contact Prime Clerk immediately using the contact information above, otherwise your right to receive payment under the plan might be impacted.
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Re: Avaya's Motion for Final Decree

Postby ttatgenhorst » Thu May 30, 2019 7:01 pm

Is there any way we can publish the names of the Avaya employy who have not cashed their checks?
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Re: Avaya's Motion for Final Decree

Postby remberger » Fri May 31, 2019 6:36 am

Great suggestion. I wish I had thought of it. I sent an e-mail to the Avaya lawyer to see if she could release the list. There may be privacy issues. I'll keep you posted.

Bob Emberger
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