1. IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
ALLIED SYSTEMS HOLDINGS, INC., Case No. 12-11564 (CSS)
Alleged Debtor. Re: Docket No. 28
In re: Chapter 11
ALLIED SYSTEMS, LTD. (L.P.), Case No. 12-11565 (CSS)
Alleged Debtor. Re: Docket No. 28
Hearing Date: TBD
Objection Deadline: TBD
ALLEGED DEBTORS’ MOTION TO FILE UNREDACTED VERSION OF ALLEGED
DEBTORS’ RESPONSE TO PETITIONING CREDITORS’ MOTION PURSUANT TO
DEL. BANKR. L.R. 9006-1(E) FOR AN ORDER SHORTENING TIME FOR NOTICE
OF THE HEARING TO CONSIDER THE EXPEDITED MOTION OF PETITIONING
CREDITORS FOR THE APPOINTMENT OF A TRUSTEE PURSUANT TO
11 U.S.C. §§ 105(A), 1104(A)(1) AND 1104(A)(2) UNDER SEAL
The above-captioned alleged debtors (collectively, the "Alleged Debtors") hereby
submit this motion (the "Motion") for entry of an order pursuant to section 107(b)(1) of title 11
of the United States Code, 11 U.S.C. §§ 101-1533 (the "Bankruptcy Code"), Rule 9018 of the
Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and Rule 9108-1(b) of the
Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the
District of Delaware (the "Local Rules") protecting the Alleged Debtors' interest in sensitive
commercial information contained in the Alleged Debtors’ Response to Petitioning Creditors’
Motion Pursuant to Del. Bankr. L.R. 9006-1(e) for an Order Shortening Time for Notice of the
Hearing to Consider the Expedited Motion of Petitioning Creditors for the Appointment of a
Trustee Pursuant to 11 U.S.C. §§ 105(a), 1104(a)(1) and 1104(a)(2) [Docket No. 28 in Case No.
12-11564 (CSS) and Docket No. 28 in Case No. 12-11565 (CSS)] (the "Response"), dated May
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2. 21, 2012, and publically filed contemporaneously herewith in a redacted form. In support of the
Motion, the Alleged Debtors respectfully state as follows:
Background
1. On May 17, 2012 (the “Petition Date”), BDCM Opportunity Fund II, LP,
Black Diamond CLO 2005-1 Adviser, L.L.C, and Spectrum Investment Partners LP
(collectively, the “Petitioning Creditors”) filed involuntary chapter 11 petitions against the
Alleged Debtors. The circumstances and the Petitioning Creditors motives leading to the filing
of these petitions are set forth in detail in the Response and are fully incorporated as if set forth
herein.1
Legal Basis for Relief Requested
2. By this Motion, the Alleged Debtors request that the Court enter an order
authorizing and directing that an unredacted version of the Response be filed under seal and not
made available to any party other than the Office of the United States Trustee for the District of
Delaware and the Petitioning Creditors (collectively, the "Receiving Parties") on a confidential
basis.2
Basis for Relief
3. Section 107(b) of the Bankruptcy Code provides, in relevant part, as
follows:
On request of a party in interest, the bankruptcy court shall . . .
(1) protect an entity with respect to a trade secret or
confidential research, development, or commercial
information . . . .
1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Response.
2 An undredacted version of the Response will also be provided to the Court for its review in accordance with
Local Rule 9018-1(b).
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3. 4. Bankruptcy Rule 9018 defines the procedures by which a party may move
for relief under section 107(b), providing that "[o]n 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 secret or other confidential research, development, or commercial
information [or] (2) to protect any entity against scandalous or defamatory matter contained in
any paper filed in a case under the Code . . . ." Fed. R. Bankr. P. 9018. Confidential information
need not rise to the level of a trade secret to merit protection under section 107(b). See Video
Software Dealers Assoc. v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 27 (2d
Cir. 1994) (commercial information defined as "information which would cause an unfair
advantage to competitors by providing them information as to the commercial operations of the
debtor").
5. Once a court determines that the information in question falls within one
of the categories enumerated in section 107(b) of the Bankruptcy Code, "the court is required to
protect a requesting interested party and has no discretion to deny the application." Id. The
Court has broad authority to issue such an 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 confidential
documents, but to other confidentiality restrictions that are warranted in the interests of justice.").
6. In addition, under section 105(a) of the Bankruptcy Code, the Court may
"issue any order, process, or judgment that is necessary or appropriate to carry out the
provisions" of the Bankruptcy Code.
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4. 7. The Alleged Debtors submit that the unredacted version of the Response
contains sensitive information of a commercial nature and should not be subject to disclosure to
the general public. Specifically, the unredacted version of the Response contains confidential
information regarding the Alleged Debtors’ financial condition and their pursuit of certain
restructuring options that, if disclosed, could threaten on-going negotiations and harm the
Alleged Debtors’ business operations. Thus, the Alleged Debtors believe that the unredacted
version of the Response should be filed under seal, not be made public, and be available only to
Receiving Parties and the Court on a confidential basis.
8. Further, as stated above, the Alleged Debtors have publically filed a
redacted version of the Response contemporaneously with this Motion. Only the sensitive
commercial information contained therein has been redacted. Accordingly, the Alleged Debtors
submit that the redacted version of the Response contains sufficient information -- even without
the specific information contained in the unredacted version of the Response -- to permit other
interested parties, if any, a full and fair opportunity to consider the merits of the Response and to
formulate and file replies thereto.
9. Accordingly, the Alleged Debtors respectfully submit that the filing of the
unredacted version of the Response under seal is necessary and appropriate in these
circumstances.
Notice
10. Notice of this Motion shall be provided to: (i) the Office of the United
States Trustee for the District of Delaware; and (ii) the Petitioning Creditors. The Alleged
Debtors respectfully submit that no further notice of this Motion is required.
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5. WHEREFORE, the Alleged Debtors respectfully request that, pursuant to 11
U.S.C. § 107(b)(l), Fed. R. Bankr. P. 9018 and Del. Bankr. L.R. 9018-1(b), the Court enter an
order, substantially in the form attached hereto as Exhibit A, (i) authorizing the Alleged Debtors
to file an umedacted version of the Response under seal; (ii) directing the Receiving Parties to
maintain the strict confidentiality of the umedacted version of the Response; and (iii) granting
the Alleged Debtors such other and further relief as is just and proper.
Dated: May 21, 2012
Wilmington, Delaware Respectfully submitted,
Mark D. ollins (No. 981)
Christo her M. Samis (No. 4909)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
E-mail: collins@rlf.com
E-mail: samis@rlf.com
-and-
Jeffrey W. Kelley (GA Bar No. 412296)
Ezra H. Cohen (GA Bar No. 173800)
TROUTMANSANDERSLLP
Bank of America Plaza
600 Peachtree Street, Suite 5200
Atlanta, Georgia 30308-2216
Telephone No.: (404) 885-3000
Facsimile No.: (404) 885-3900
E-Mail: jeffrey .kelley@troutmansanders. com
E-Mail: ezra.cohen@troutmansanders.com
Counsel for Alleged Debtors
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6. Exhibit A
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7. IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
ALLIED SYSTEMS HOLDINGS, INC., Case No. 12-11564 (CSS)
Alleged Debtor. Re: Docket Nos. ___ and ___
In re: Chapter 11
ALLIED SYSTEMS, LTD. (L.P.), Case No. 12-11565 (CSS)
Alleged Debtor. Re: Docket Nos. ___ and ___
ORDER GRANTING ALLEGED DEBTORS’ MOTION TO FILE AN UNREDACTED
VERSION OF ALLEGED DEBTORS’ RESPONSE TO PETITIONING CREDITORS’
MOTION PURSUANT TO DEL. BANKR. L.R. 9006-1(E) FOR AN ORDER
SHORTENING TIME FOR NOTICE OF THE HEARING TO
CONSIDER THE EXPEDITED MOTION OF PETITIONING
CREDITORS FOR THE APPOINTMENT OF A TRUSTEE PURSUANT
TO 11 U.S.C. §§ 105(A), 1104(A)(1) AND 1104(A)(2) UNDER SEAL
The Court having considered the Alleged Debtors’ Motion to File an Unredacted
Version of Alleged Debtors’ Response to Petitioning Creditors’ Motion Pursuant to Del. Bankr.
L.R. 9006-1(e) for an Order Shortening Time for Notice of the Hearing to Consider the
Expedited Motion of Petitioning Creditors for the Appointment of a Trustee Pursuant to 11
U.S.C. §§ 105(a), 1104(a)(1) and 1104(a)(2) Under Seal (the “Motion"); 1 the Court having
reviewed the Motion and having heard the statements of counsel regarding the relief requested in
the Motion at a hearing before the Court (the "Hearing"); the Court having found that (i) the
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334, (ii) this is a core
proceeding pursuant to 28 U.S.C. § 157(b)(2), and (iii) notice of the Motion and the Hearing was
1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.
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8. sufficient under the circumstances; and the Court having determined that the legal and factual
bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein;
IT IS HEREBY ORDERED THAT:
1. The Motion is granted.
2. The Alleged Debtors may file the undredacted version of the Response
under seal.
3. The Clerk of the Court shall segregate and maintain the unredacted
version of the Response under seal pursuant to the procedures set forth in Local Rule 9018-1(b)
until further order of this Court.
4. The foregoing notwithstanding, access to the unredacted version of the
Response shall be provided only to the Receiving Parties, each of which shall maintain the
confidentiality of the undredacted version of the Response and its contents.
5. The Alleged Debtors are authorized to take all actions necessary to
effectuate the relief granted pursuant to this Order in accordance with the Motion, including,
without limitation, requiring any party requesting additional information about the unredacted
version of the Response to submit to confidentiality agreements with the Alleged Debtors, who,
in their sole discretion, shall determine whether to provide such additional information.
6. This Court retains jurisdiction to interpret and enforce this Order.
Dated: May _____, 2012 __________________________________________
Wilmington, Delaware THE HONORABLE CHRISTOPHER S. SONTCHI
UNITED STATES BANKRUPTCY JUDGE
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