Replies to post #212 on TMST, Inc., 8% Senior Notes (TMA.GB)

[vpagano]

Agreed.

http://dm.epiq11.com/TMI/Document/GetDocument/2545155

6. The Trustee, in the sound exercise of his business and legal judgment, has, subject to approval of the Court, filed the Application in order to, among other things, retain Susman Godfrey LLP (“Susman Godfrey”) as Special Litigation Counsel to serve with Shapiro Sher Guinot & Sandler (“SSG&S”) as co-counsel to the Trustee in the Counterparty Litigation and to seek a limited modification of the terms of the retention of SSG&S as counsel to the Trustee.
7. The Trustee believes however that a disclosure of all of the terms of the Application (specifically the terms of the compensation to be paid to counsel), if made public, will affect the course of the Counterparty Litigation and negatively impact the recoveries that the Trustee may ultimately be able to obtain in the Counterparty Litigation. Indeed, the Trustee’s views in this regard were reinforced in the recently concluded case against Barclays Capital Inc. [Civ. No. Case No. ELH-11-01982]. In that case, all of terms of the retention of the Trustee’s special litigation counsel were set out in the Trustee’s application to employ special litigation counsel filed with the Court and thus were available to Barclays. In the Trustee’s opinion, Barclays used this information to shape its litigation and settlement strategies to the detriment of the Debtors.
8. In light of the foregoing, the Trustee proposes to file a redacted version of the Application by redacting only those portions that, if released, would provide adverse parties with information they would use to their advantage, but to the disadvantage of the Trustee and these bankruptcy estates. Under the circumstances, the Trustee submits that the Application contains information that is confidential and could be deemed to be protected by the work product doctrine, attorney-client privilege, or both. Furthermore, the benefit, if any, that may be obtained by disclosing all of the terms of counsels’ engagement is far outweighed by the detriment such disclosure will have to the Trustee’s prosecution of the Counterparty Litigation. The procedure proposed herein has been approved by the Court several times before in this case and is appropriate under the circumstances. See Orders of the Court at Dkt. Nos. 1267, 1275 and 1879.