response to claims objection (filing version) · 23. pas mexico milk plant village of mexico, ny...

Hearing Date: November 14, 2012 at 11:00 a.m. (Eastern Time) Response Deadline: November 7, 2012 at 4:00 p.m. (Eastern Time)

William E. Kelleher, Jr. (pro hac vice pending) Pa. I.D. No. 30747 Lisa K. Stauffer (pro hac vice pending) Pa. I.D. No. 85963 COHEN & GRIGSBY, P.C. 625 Liberty Avenue Pittsburgh, PA 15222-3152 (412) 297-4900 Telephone (412) 209-1997 Fax [email protected] [email protected]

and

Patrick J. Orr KLESTADT & WINTERS, LLP 570 Seventh Avenue 17th Floor New York, NY 10018-6314 570 Seventh Avenue 17th Floor New York, NY 10018-6314 (212) 972-3000 Telephone (212) 972-2245 Fax [email protected]

Counsel to Bayer Corporation and STWB Inc.

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

) In re: ) Chapter 11 ) EASTMAN KODAK COMPANY, et al., ) Case No. 12-10202 (ALG) ) Debtors. ) (Jointly Administered) )

RESPONSE OF BAYER CORPORATION AND STWB INC. TO DEBTORS' FOURTH OMNIBUS OBJECTION TO CLAIMS

Bayer Corporation ("Bayer") and STWB Inc. ("STWB" and together with Bayer, the

"Claimants"), by their undersigned counsel, respond to Debtors' Fourth Omnibus Objection to

Claims and in support hereof, state as follows:

12-10202-alg Doc 2306 Filed 11/07/12 Entered 11/07/12 14:41:24 Main Document Pg 1 of 14

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1210202121107000000000009

Docket #2306 Date Filed: 11/7/2012

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I. Introduction

1. On January 19, 2012 (the "Petition Date"), each of the Debtors1 filed a voluntary

petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.

(the "Bankruptcy Code"). The Debtors' cases have been consolidated for administrative

purposes only. (See Docket No. 42). These cases have not been substantively consolidated.

2. This Court established July 17, 2012 as the Bar Date for the filing of proofs of

claim. (See Docket No. 1147).

3. On July 17, 2012, the Claimants timely filed Proofs of Claim, including Claim

Nos. 5809, 5810, 5811, 5812, 5813 and 5815 further identified below (collectively, the

"Claims").

4. On October 15, 2012, the Debtors filed their Fourth Omnibus Objection to Claims

(Docket No. 2161, the "Objection"), objecting to Claim Nos. 5810, 5811 and 5815 filed by Bayer

and Claim No. 5812 filed by STWB. The Debtors' generic, stated basis for objecting is that the

claims in question "assert amounts that have already been asserted" in other proofs of claim. The

Debtors argue "at most, only one claim against the Debtors' estates should be allowed for each

Claimant" to avoid an "unwarranted double recovery against the Debtors' estates."

Consequently, the Debtors take the position that only Claim Nos. 5809 and 5813 filed by Bayer

(and no claim filed by STWB) should remain.

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, are: Eastman Kodak Company (7150); Creo Manufacturing America LLC (4412); Eastman Kodak International Company, Inc. (2341); Far East Development Ltd. (2300); FPC Inc. (9183); Kodak (Near East), Inc. (7936); Kodak Americas, Ltd. (6256); Kodak Aviation Leasing LLC (5224); Kodak Imaging Network, Inc. (4107); Kodak Philippines, Ltd. (7862); Portuguesa Limited (9171); Kodak Realty, Inc. (2045); Laser-Pacific Media Corporation (4617); NPEC Inc. (5677); Pakon, Inc. (3462); and Qualex Inc. (6019).


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5. The Debtors' Objection, as it relates to the Claims filed by Bayer and STWB, is

based on a faulty factual premise and flawed reasoning. As further explained below,2 the Claims

are filed by separate claimants against separately liable Debtors, either Eastman Kodak Company

("Kodak") or NPEC Inc. ("NPEC"), for different indemnity obligations relating to environmental

matters and employee related expenses.

II. Claim Background

A. Basis for Claim Nos. 5811, 5812, 5813 and 5815 (the Environmental Claims)

6. Pursuant to a Stock Purchase Agreement dated as of August 28, 1994, between

Kodak and 343 Holding Company (a Kodak affiliate), as sellers, and SmithKline Beecham plc,

as buyer (as such agreement may have been amended, modified or restated, the "August 28, 1994

SPA"), SmithKline Beecham plc ("SmithKline") acquired all of the issued and outstanding

capital stock of Sterling Winthrop Inc. (now known as STWB Inc.) and its Consumer Health

Business.3 Among other obligations, Kodak agreed under Section 5.13 of the August 28, 1994

SPA to administer, manage and conduct remediation on behalf of STWB at certain sites and to

administer and manage certain other environmental and other contingent liabilities and

obligations and to pay on behalf of STWB and SmithKline all liabilities, costs and expenses

(including administrative expenses) arising out of, or relating to, such liabilities and obligations.

7. On or about September 11, 1994, SmithKline, as seller, entered into a second

Stock Purchase Agreement with Miles Inc., now known as Bayer Corporation, as buyer (as such

agreement may have been amended, modified or restated, the "September 11, 1994 SPA" and

together with the August 28, 1994 SPA, the "SPAs"). As a result of the September 11, 1994

2 As required by the Notice accompanying the Objection, a concise statement why the Objection should not be allowed and the specific factual and legal bases upon which Claimants will rely follows, but for further background each of the Claims and all attachments thereto are incorporated by reference. 3 Other business lines of Sterling were spun off to other parties in contemporaneous but separate transactions.


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SPA, Bayer acquired all of the issued and outstanding capital stock of STWB and its Consumer

Health Business. Pursuant to Section 7.4 of the September 11, 1994 SPA, SmithKline assigned

to Bayer all of SmithKline's indemnification rights as set forth in Section 7.3 of the August 28,

1994 SPA. An excerpt or redacted version of the indemnification provision (Section 7.3) of the

August 28, 1994 SPA is attached as Exhibit A and an excerpt or redacted version of the

indemnification provision (Section 7.4) of the September 11, 1994 SPA is attached as Exhibit

B.4

8. In connection with the September 11, 1994 SPA, Kodak executed a letter

agreement (as such agreement may have been amended, modified or restated, the "9/11/94 Letter

Agreement") that, among other things, acknowledged that the assignment to Bayer and

assumption of the rights under the September 11, 1994 SPA was effective. The 9/11/94 Letter

Agreement is attached as Exhibit C.

9. Since Bayer acquired all of the capital stock of STWB in 1994, Kodak has

acknowledged and accepted its indemnity obligations. In addition, NPEC has assumed some or

all of that responsibility and performed certain of the obligations under the indemnification

provisions of the SPAs.5 The Debtors have been monitoring, managing, investigating,

remediating, defending and otherwise attempting to fulfill and satisfy all of the Debtors'

obligations and liabilities, including, but not limited to, providing legal counsel and other

professional assistance to STWB, and paying certain sums in connection with such obligations

and liabilities.

4 The remainder of the SPAs are not attached because the SPAs contain proprietary information and are subject to confidentiality agreements; however, Kodak is in possession of copies of the SPAs and they can be made available, subject to an appropriate confidentiality agreement, protective order or other protection provided by the Court. 5 Bayer and STWB are unaware of the precise contractual or other relationship between NPEC and Kodak that governs this work.


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10. Both Kodak and NPEC are liable to the Claimants for all such liabilities,

obligations and payments that the Debtors have not satisfied or do not satisfy in the future in

connection with any and all claims for past, present or future liabilities or obligations arising

from or relating to the alleged existence or discharge of pollutants or other alleged pollution or

damage for which STWB may be legally responsible, including, but not limited to, claims,

damages, costs or other amounts incurred at or with respect to the following sites (collectively,

the "Sites"):

Site Name Location 1. Hilton Davis Newark 104-112 Lister Avenue Rear

Newark, NJ [Block 2438, Lot 56]

2. Lehn & Fink 192-194 Bloomfield Avenue Bloomfield, NJ [According to Assessor – 032312- this is part of Block 64, Lot 1]

3. Lower Passaic River Study Area

Lower 14 miles (more or less) of the Passaic River, NJ

4. Newark Bay Study Area Newark Bay and the Hackensack River, Arthur Kill and Kill Van Kull, NJ

5. Rensselaer Sterling Site III Riverside Avenue ExtensionEast Greenbush, NY

6. Hilton Davis – Cincinnati 2235 Langdon Farm Road Cincinnati, OH

7. Bofors Noble Site 5307 Evantston Avenue Egelston, MI

8. Industrial Lane 635 Industrial Drive Williams Township Easton, PA

9. Pedone Landfill Route 5 Glenville, NY

10. Nilok Site 5030 Millington Road Memphis, TN

11. Rensselaer Sterling Site IV Riverside Avenue East Greenbush, NY

12. Zimpro Unknown 13. Rensselaer Sterling Site II Route 91


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11. From and after the Petition Date, the Debtors ceased performing their obligations

under, and breached the indemnification provisions of, the SPAs. Kodak and NPEC are liable,

jointly and severally, to each of the Claimants for all past, present, and future liabilities,

obligations, payments, costs and all other expenses incurred by Claimants in connection with any

of the Sites, any other site identified in the future for which STWB may be alleged to be legally

responsible, and any other Undisclosed OTC Environmental Liability (as that term is defined in

East Greenbush, NY 14. PAS Oswego 703 E Seneca Street

City of Oswego Oswego County Oswego, NY

15. PAS Fulton Terminals 361 N. First Street Fulton, NY

16. Maxey Flats 2597 Maxey Flat Road Hillsboro, KY

17. Skinner Landfill 8750 Cincinnati Dayton HighwayWest Chester, Butler County, OH

18. Sterwin Laboratory Opelika, Alabama 19. Trenton Bayer Aspirin

Plant2144 East State Street Hamilton, NJ [Block 1588, Lots 3 and 4]

20. Marco of Iota Drum Site Highway 370 Iota, LA

21. Mobile Tank Car Service 4135 Algonquin Park Louisville, KY

22. Somerville Warehouse 40 Haynes Street Somerville, NJ [Block 50, Lots 3 and 4]

23. PAS Mexico Milk Plant Village of Mexico, NY 24. Golden Strip Tank Site 259 County Route 142

(aka Adams Mill Road) Simpsonville, SC

25. Simpsonville Lagoon Site 3294 Fork Shoals Road Simpsonville, SC


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the August 28, 1994 SPA), including investigation, remediation, management, oversight and

administrative expenses, including, but not limited to, environmental consultant, accounting and

legal and other professional fees and costs.

12. Bayer filed Claim No. 5811 against NPEC and Claim No. 5813 against Kodak

for, inter alia, the indemnification claims relating to the environmental obligations. STWB filed

Claim No. 5812 against NPEC and Claim No. 5815 against Kodak for, inter alia, the

indemnification claims relating to the environmental obligations. (Claim Nos. 5811, 5812, 5813

and 5815 are collectively referred to as the "Environmental Claims").

13. The Environmental Claims also cover any other indemnity claim that may now or

in the future arise under the SPAs, of whatsoever nature or kind, including, but not limited to,

claims for cost recovery, contribution, third party property damage or damage to natural

resources, whether arising under tort, statutory, common law or any other theory or authority.

14. The Objection seeks to expunge all of the Environmental Claims except for Claim

No. 5813 filed by Bayer against Kodak. While Claimants acknowledge that if the Debtors

honored all of their environmental obligations they would only have to do so once, it does not

follow, either as a matter of logic or law, that each of the Claimants do not hold valid claims

against each of the Debtors. There is no basis for NPEC being totally exculpated from liability,

nor is there any basis for expunging all of STWB's claims or Bayer's claim against NPEC.

Unless and until Kodak or NPEC substantively consolidate their bankruptcy estates and

corporate status, both Kodak and NPEC remain liable to each of the Claimants.

15. The Environmental Claims filed by Claimants are similar, but they are not

identical and are not duplicative.

16. Bayer and STWB are separate legal entities with separate rights and obligations.

Bayer's claim is based, in part, on it being in direct contractual privity with Kodak pursuant to


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the September 11, 1994 SPA. STWB's claim is based, in part, upon the indemnity obligations

set forth in the September 11, 1994 SPA, which obligations run in favor of Bayer and "its

Affiliates," including STWB. STWB (not Bayer) is the party that may be responsible for the

environmental obligations.

17. On the Debtor side of the Environmental Claims, Kodak is the party to the SPAs,

as it is the direct seller and indemnifying party in the August 28, 1994 SPA and agreed to

directly indemnify Bayer under the September 11, 1994 SPA by virtue of the 9/11/94 Letter.

Both Kodak and NPEC have assumed responsibility and been indemnifying STWB for all

environmental liabilities. Moreover, for certain of the Sites, including some or all of Sites 5, 6,

11, 13 and 19 identified above, NPEC is or was an owner or operator that remains primarily

liable for the environmental obligations at such Sites, for which STWB has contribution,

indemnity and other claims against NPEC under applicable federal, state or local law or

regulation, in addition to the contractual indemnity claims.6 Simply expunging STWB's Claim

Nos. 5811, 5812 and 5815 could prejudice Claimants by inadvertently and improperly

extinguishing one or more grounds for liability and/or damages.

18. Thus, both Bayer and STWB have claims in their own right against two separately

liable entities (unless and until Kodak and NPEC substantively consolidate their bankruptcy

estates and corporate status). Further, there is no basis in fact or law for totally relieving NPEC

of all liability whatsoever to Bayer and STWB.

6 The Debtors' indemnity and other obligations under the SPAs, to the extent they relate to Sites now or in the past owned by any of the Debtors or for which the Debtors have independent joint or several liability under applicable law or regulation, may also be chapter 11 administrative expenses entitled to priority under 11 U.S.C. § 507(a)(2) if performed by Bayer or STWB on behalf of or for the benefit of Debtors.


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B. Basis for Claim Nos. 5809 and 5810 (the Employee Benefit Claims)

19. As part of the August 28, 1994 SPA, Kodak required SmithKline to maintain

certain deferred compensation, pension and employee benefit plans and to assume certain other

employment related obligations, costs and expenses, including, but not limited to, obligations to

Louis P. Mattis under his employment agreement with Sterling dated as of June 1, 1990 and

amended on February 9, 1993 and his retirement and other benefits payable per Section 5.5(g) of

the Sanofi Asset Purchase Agreement (the "Mattis Benefit Expenses"). Kodak agreed to

reimburse and indemnify SmithKline under the August 28, 1994 SPA for all such post-

employment benefits and obligations and all costs and expenses relating thereto ("OPEB

Obligations").

20. As previously explained, as a result of the September 11, 1994 SPA, Bayer

acquired all of the issued and outstanding capital stock of STWB and its Consumer Health

Business. Pursuant to Section 7.4 of the September 11, 1994 SPA, SmithKline assigned to Bayer

all of SmithKline's indemnification rights as set forth in Section 7.3 of the August 28, 1994 SPA.

In connection with the September 11, 1994 SPA, Kodak executed the 9/11/94 Letter Agreement

that, among other things, acknowledged that the assignment to Bayer and assumption of the

rights under the September 11, 1994 SPA was effective. See Exhibits A, B and C.

21. Prior to the commencement of this Chapter 11 case, disputes arose regarding the

liability allocations among the parties for the OPEB Obligations. In 2001, Kodak sued Bayer

and STWB in the United States District Court for the Southern District of New York and Bayer

and STWB asserted counterclaims against Kodak. That lawsuit was resolved by the parties

entering into a Settlement Agreement, dated as of July 1, 2002 (the "Settlement Agreement"). A

true and correct copy of the Settlement Agreement is attached as Exhibit D.


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22. Pursuant to the Settlement Agreement and the relevant Asset Purchase

Agreement, the Mattis Benefit Expenses and other employee benefit obligations were allocated

16.41% to STWB, 10.92% to Kodak (the "Debtor Share"), 47.06% to Sanofi S.A. (the "Sanofi

Share") and 25.61% to Reckitt & Colman.7 In addition, Kodak agreed to pay Claimants 83% of

the total amount of the Sanofi Share that is not paid by Sanofi. Bayer agreed to assume

responsibility for Mattis's past and future funded Kodak Retirement Income Plan benefits.

23. Subsequent to the Petition Date, Kodak ceased paying the Debtor Share, the

unpaid Sanofi Share of the Mattis Benefit Expenses and all other employment, retirement and

benefits related obligations under the indemnity and other provisions of the SPAs. As of the

Petition Date, Kodak owed Claimants the sum of $2,572,026 for the following amounts and

invoices (copies of which are attached as Exhibit E):

Invoice E-K 2Q-11 dated July 20, 2011 unpaid by Kodak $ 34,899 Invoice E-K 4Q-11 dated January 20, 2012 unpaid by Kodak 34,688 Indemnification of non-payment of Mattis related pension benefits by Sanofi through Q3 2011 2,463,451 Indemnification of non-payment of Mattis related pension benefits by Sanofi invoice S-A Q4-11 dated January 20, 2012 38,988 Subtotal (Amounts past due as of Q42011) $2,572,026

The anticipated amounts owed by Kodak for the future post-employment related benefits and

costs, including deferred compensation, pension benefits and the Debtor Share (83%) of the

unpaid Sanofi Share of the Mattis Benefit Expenses, is approximately $3,206,735, as follows:

Deferred compensation billings to Kodak (2012-2013-2014. Billable installment payouts end 2014)

$ 150,000

Pension billings of Kodak 1,295,275 Indemnification of non-payment of Mattis related pension benefits by Sanofi 1,761,461 Subtotal $3,206,735

7 Sanofi and Reckitt & Colman purchased other businesses from STWB pursuant to the transactions referenced in footnote 3 supra.


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24. Thus, the total amount of the Bayer claim in this regard (Claim No. 5809) and the

STWB claim in this regard (Claim No. 5810) is $5,778,761, plus any and all other expenses,

costs or other amounts, liabilities or obligations that may be incurred or realized in the future.

25. Bayer filed Claim No. 5809 against Kodak and STWB filed Claim No. 5810

against Kodak for the OPEB Obligations in the initial amount of $5,778,761. (Claims Nos. 5809

and 5810 collectively referred to as the "Employee Benefit Claims").

26. The Objection seeks to expunge Claim No. 5810 filed by STWB, and to allow

Claim No. 5809 filed by Bayer to remain. While Claimants acknowledge that Kodak is only

liable to pay the OPEB Obligations once, it does not follow, either as a matter of logic or law,

that STWB has no claim against Kodak.

27. The Employee Benefit Claims filed by Claimants are similar, but they are not

identical and are not duplicative.

28. Bayer and STWB are separate legal entities with separate rights and obligations.

Bayer's claim is based, in part, on it being in direct contractual privity with Kodak pursuant to

the September 11, 1994 SPA and the 9/11/94 Letter. STWB's claim is based upon the indemnity

obligations set forth in the September 11, 1994 SPA, which obligations run in favor of Bayer and

"its Affiliates," including STWB.

29. Additionally, Bayer and STWB are parties to, and direct beneficiaries of, the

Settlement Agreement, but only STWB is the party that is liable to, and making payment to, third

parties for the OPEB Obligations. Thus, both Bayer and STWB have claims in their own right

and are entitled to pursue those claims until Kodak satisfies the damages in full. Simply

expunging STWB's Claim No. 5810 could prejudice Claimants by inadvertently and improperly

extinguishing one or more grounds for liability and/or damages.


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30. Moreover, Claimants are entitled to recoup from the amounts now and in the

future owed by Kodak any amount owed by Claimants to Kodak arising from or relating to the

transactions contemplated by the SPAs or the Settlement Agreement, including, but not limited

to, Claimants' obligation to remit to Kodak 83% of the Sanofi Share of the Mattis Benefit

Expenses actually paid by Sanofi with respect to amounts paid by Kodak to Claimants. Thus,

expunging STWB's Claim could, again presumably inadvertently and improperly, prejudice

Claimants' respective and collective rights of recoupment or setoff.8

III. Response to Objection to Claims

31. The Debtors' objection that the Claims are duplicative is premature and/or wrong.

As to the Environmental Claims, the Debtors have obligations owing to each of STWB and

Bayer. These are two separate, contractually and legally cognizable claims against each of the

Debtors (Kodak and NPEC).

32. Further, STWB and Bayer are entitled to separate claims against each of NPEC

and Kodak, unless and until those Debtors are substantively consolidated, which, to date, has not

occurred. The Debtors are jointly and severally liable to each of the Claimants. While the

Claimants are only entitled to a single recovery in the aggregate, they each have valid claims

against separate estates, none of which are redundant with the others, and they are entitled to

assert their separate claims until they receive payment in full.

33. The Debtors have never indicated what the working relationship between NPEC

and Kodak is; however, there is no question that Kodak is contractually responsible for the

indemnification obligations to both Bayer and STWB and there is no question that NPEC has

8 To the extent Claimants' right of recoupment is or may be characterized as a setoff, rather than a recoupment (although Claimants deny that their right of recoupment should be characterized as a setoff), then the Employee Benefit Claims are secured claims to the full extent of such offsets (or recoupment), which are presently unknown.


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taken responsibility for such indemnification obligations and assumed the liability to STWB

since the SPAs were executed in 1994.

34. For those reasons, none of the Environmental Claims (Claim Nos. 5811, 5812,

5813 and 5815) should be expunged.

35. As to the Employee Benefit Claims, under the SPAs, Kodak also is liable to both

Bayer and STWB. Indeed, the Settlement Agreement further clarified the respective obligations

of each party to the SPAs and clarified that both Bayer and STWB are indemnified parties.

While the Claimants are only entitled to a single recovery in the aggregate, they each have valid

claims, neither one of which is redundant of the other, and they are entitled to assert their

separate claims until they receive payment in full.

36. Moreover, each claim has associated rights, such as the right to setoff or

recoupment against other liabilities that Bayer and/or STWB might have. Thus, expunging one

claim has a much broader impact on the Claimants than simply reducing the dollar amount of

liability for the Debtors, as it could inadvertently and improperly prejudice theories of liability,

damages or other substantive rights of the Claimants, such as recoupment or setoff rights.

Claimants are not willing to simply relinquish such rights. Accordingly, none of the Employee

Benefit Claims (Claim Nos. 5809 and 5810) should be expunged.

IV. Conclusion

For the foregoing reasons, none of the Environmental or Employee Benefit Claims

should be expunged as duplicative. Rather, all should be deemed allowed claims, based on the

plain provisions of the SPAs and other legal grounds for the Claims, even if the Claimants are

ultimately only entitled to a single full recovery as to each group of claims.


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Bayer and STWB respectfully request that this Honorable Court deny the Objection as to

the Environmental Claims and the Employee Benefit Claims, and grant Claimants such other and

additional relief as the Court deems just and equitable.

Dated: Mew York, New York November 7, 2012 Respectfully submitted, William E. Kelleher, Jr. (pro hac vice pending)

Pa. I.D. No. 30747 Lisa K. Stauffer (pro hac vice pending) Pa. I.D. No. 85963

COHEN & GRIGSBY, P.C. 625 Liberty Avenue Pittsburgh, PA 15222-3152 (412) 297-4900 Telephone (412) 209-1997 Fax [email protected]@cohenlaw.com

- and-

KLESTADT & WINTERS, LLP

By: /s/Patrick J. Orr Patrick J. Orr 570 Seventh Avenue, 17th Floor New York, NY 10018-6314(212) 972-3000 Telephone (212) 972-2245 Fax [email protected]

Counsel to Bayer Corporation and STWB Inc.

1803792.doc


12-10202-alg Doc 2306-1 Filed 11/07/12 Entered 11/07/12 14:41:24 Exhibit A Pg 1 of 8

12-10202-alg Doc 2306-2 Filed 11/07/12 Entered 11/07/12 14:41:24 Exhibit B Pg 1 of 8

12-10202-alg Doc 2306-3 Filed 11/07/12 Entered 11/07/12 14:41:24 Exhibit C Pg 1 of 4

12-10202-alg Doc 2306-4 Filed 11/07/12 Entered 11/07/12 14:41:24 Exhibit D Pg 1 of 13

12-10202-alg Doc 2306-5 Filed 11/07/12 Entered 11/07/12 14:41:24 Exhibit E Pg 1 of 12

response to claims objection (filing version) · 23. pas mexico milk plant village of mexico, ny...

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