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  • Imerys Chapter 11 Mediation Order Protecting Everything

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    Kirk Hartley
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    This order appoints Lawrence W. Pollack as the mediator to conduct non-binding mediation between the Debtors and other parties ("Mediation Parties") regarding certain insurance obligations. The order establishes terms for the mediation including: (1) the Debtors will pay up to $40,000 of the mediator's fees and expenses; (2) discussions in the mediation are confidential; and (3) the results of the mediation are non-binding unless agreed to by the parties.

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    Imerys Chapter 11 Mediation Order Protecting Everything

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    This order appoints Lawrence W. Pollack as the mediator to conduct non-binding mediation between the Debtors and other parties ("Mediation Parties") regarding certain insurance obligations. The order establishes terms for the mediation including: (1) the Debtors will pay up to $40,000 of the mediator's fees and expenses; (2) discussions in the mediation are confidential; and (3) the results of the mediation are non-binding unless agreed to by the parties.

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    © All Rights Reserved
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    98 views5 pages

    Imerys Chapter 11 Mediation Order Protecting Everything

    Uploaded by

    Kirk Hartley
    This order appoints Lawrence W. Pollack as the mediator to conduct non-binding mediation between the Debtors and other parties ("Mediation Parties") regarding certain insurance obligations. The order establishes terms for the mediation including: (1) the Debtors will pay up to $40,000 of the mediator's fees and expenses; (2) discussions in the mediation are confidential; and (3) the results of the mediation are non-binding unless agreed to by the parties.

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    © All Rights Reserved
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    of 5

    Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 1 of 5

    IN THE UNITED STATES BANKRUPTCY COURT


    FOR THE DISTRICT OF DELAWARE

    ------------------------------------------------------------ x
    In re: : Chapter 11
    :
    IMERYS TALC AMERICA, INC., et al.,1 : Case No. 19-10289 (LSS)
    :
    Debtors. : (Jointly Administered)
    : Re: Docket No. 2691
    ------------------------------------------------------------ x

    ORDER APPOINTING MEDIATOR

    Upon the certification of counsel, dated December 29, 2020 (the “Certification of

    Counsel”),2 of the debtors and debtors in possession (collectively, the “Debtors”) in the above-

    captioned cases (the “Chapter 11 Cases”) regarding appointment of a mediator; and this Court

    having jurisdiction to consider the Certification of Counsel and the relief requested therein

    pursuant to 28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference from the

    United States District Court for the District of Delaware dated February 29, 2012; and the

    consideration of the Certification of Counsel and the relief requested therein being a core

    proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to

    28 U.S.C. §§ 1408 and 1409; and this Court having reviewed the Certification of Counsel; and

    upon all of the proceedings had before this Court and after due deliberation and sufficient cause

    appearing therefor,

    1
    The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification
    number, are: Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada
    Inc. (6748). The Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076.
    2
    Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in
    the Certification of Counsel.

    US-DOCS\120093983RLF1 24542136v.1
    Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 2 of 5

    IT IS HEREBY ORDERED THAT:

    1. The Court authorizes and appoints Lawrence W. Pollack (the “Mediator”) to serve

    as mediator and conduct non-binding mediation with the Mediation Parties (the “Mediation”)

    regarding disputes over certain insurance obligations.

    2. Subject to entry of this Order, the Debtors shall pay their 50% portion of the

    Mediator’s fees and expenses without further application to or order of this Court. The Debtors

    reserve the right to select a mediation date agreeable to the Mediation Parties, subject to the Fee

    Cap (as defined below). The Mediator’s fees and expenses allocable to the Debtors for the

    Mediation, including the expenses of any professionals retained by the Mediator, shall not exceed

    $40,000 in total (the “Fee Cap”). Payment of fees and expenses in excess of the Fee Cap shall

    require further approval of this Court.

    3. Each Mediation Party shall bear its own costs and expenses incurred in connection

    with the Mediation, such as attorney’s fees, travel, lodging, and meals; provided, however, that the

    Debtors’ estates will bear the expenses of the Debtors, the Committee and the FCR in accordance

    with the applicable provisions of the Bankruptcy Code and the Order Under 11 U.S.C. §§ 105(a)

    and 331, Fed. R. Bankr. P. 2016(a), and Del. Bankr. L.R. 2016-2 Establishing Procedures for

    Interim Compensation of Professionals, entered on March 25, 2019 [Docket No. 301].

    4. Without limiting the applicability of Local Rule 9019-5(d), (a) discussions among

    the Mediation Parties, including discussions with or in the presence of the Mediator before or after

    the entry of this Order, (b) any mediation statements or any other documents or information

    provided to the Mediator or exchanged among the Mediation Parties in the course of the Mediation,

    and (c) correspondence, draft resolutions, offers, and counteroffers produced for, or as a result of,

    the Mediation (clauses (a) through (c), collectively, the “Mediation Information”), shall be

    2
    US-DOCS\120093983RLF1 24542136v.1
    Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 3 of 5

    strictly confidential and shall not be admissible for any purpose in any judicial or administrative

    proceeding, and no person or Mediation Party, including counsel for any Mediation Party, or any

    other party, shall in any way disclose to any person or entity that is not a Mediation Party or to any

    court, including, without limitation, in any pleading or other submission to any court, any such

    discussion, mediation statement, other document or information, correspondence, resolution, offer,

    or counteroffer that may be made or provided in connection with the Mediation, unless otherwise

    available and not subject to a separate confidentiality agreement that would prevent its disclosure

    or as authorized by this Court, provided, however, evidence shall not be excluded or otherwise

    considered improper in any judicial or administrative proceeding on the ground that it was

    developed as an outgrowth of information supplied in the Mediation, unless such disclosure is

    otherwise prohibited in a separate confidentiality agreement governing the use of such derivative

    information.

    5. To the extent that any Mediation Party is in possession of privileged or confidential

    information provided to such Mediation Party pursuant to the terms and conditions of a

    confidentiality agreement, or other similar agreement, executed (or agreed to via email) with the

    Debtors or an order of this Court entered in connection with the Chapter 11 Cases, such

    information may be disclosed to the Mediator, but shall otherwise remain privileged and/or

    confidential and shall not be disclosed to any other Mediation Party; provided, however, that

    confidential, but not privileged, information may be disclosed to another Mediation Party that is

    also subject to a confidentiality agreement with the Debtors or subject to such Court order, as

    applicable. Any Mediation Party may provide documents and/or information to the Mediator that

    are subject to a privilege or other protection from discovery, including the attorney-client privilege,

    the work product doctrine, or any other privilege, right, or immunity the parties may be entitled to

    3
    US-DOCS\120093983RLF1 24542136v.1
    Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 4 of 5

    claim or invoke (the “Privileged Information”). The party producing such documents and/or

    information to the Mediator (the “Producing Party”) must designate such documents and/or

    information as Privileged Information. By providing Privileged Information solely to the Mediator

    and no other party, no Mediation Party nor its respective professionals intends to, or shall, waive,

    in whole or in part, the attorney-client privilege, the work-product doctrine, or any other privilege,

    right or immunity they may be entitled to claim or invoke with respect to such Privileged

    Information. The Mediator shall not provide Privileged Information or disclose the contents

    thereof to any other person, entity, or Mediation Party without the consent of the Producing Party

    (except that the Mediator may disclose Privileged Information to any person assisting the Mediator

    in the performance of his mediation duties, in which event such assistant shall be subject to the

    same restrictions as the Mediator with respect to such privileged information). No Mediation Party

    is obligated to provide any documents and/or information, including Privileged Information, to the

    Mediator.

    6. All Mediation Information shall (a) remain confidential, (b) be subject to protection

    under Rule 408 of the Federal Rules of Evidence and any equivalent or comparable state law and

    (c) not constitute a waiver of any existing privileges and immunities.

    7. Notwithstanding anything to the contrary in the Local Rules, the Mediator may

    conduct the Mediation as he sees fit, establish rules of the Mediation, and consider and take

    appropriate action with respect to any matters the Mediator deems appropriate to conduct the

    Mediation, subject to the terms of this Order.

    8. No written record or transcript of any discussion had in the course of the Mediation

    is to be kept, absent express written agreement by the Mediation Parties; provided, however, that

    the Mediator and any person assisting the Mediator in the performance of his mediation duties

    4
    US-DOCS\120093983RLF1 24542136v.1
    Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 5 of 5

    shall be entitled to keep such records and take such notes as the Mediator deems necessary or

    helpful to carry out such duties, and further provided that such records and notes shall be

    considered Mediation Information.

    9. The results of the Mediation are non-binding unless the applicable Mediation

    Parties otherwise agree. Any resolution that is reached at the Mediation and that involves the

    Debtors or their estates will be subject to Court approval after notice and opportunity for hearing,

    to the extent required under Bankruptcy Rule 9019.

    10. For the avoidance of doubt, to the extent any part of this Order shall conflict with

    Local Rule 9019-5, the terms and provisions of this Order shall govern.

    11. The Debtors are authorized to take all actions necessary to effectuate the relief

    granted in this Order.

    12. Notwithstanding the possible applicability of Rules 6004(h), 7062, or 9014 of the

    Federal Rules of Bankruptcy Procedure, or otherwise, the terms and conditions of this Order shall

    be immediately effective and enforceable upon entry of this Order.

    13. This Court retains jurisdiction over all matters arising from or related to the

    implementation or interpretation of this Order.

    LAURIE SELBER SILVERSTEIN


    Dated: January 5th, 2021 5 UNITED STATES BANKRUPTCY JUDGE
    Wilmington, Delaware
    US-DOCS\120093983RLF1 24542136v.1

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