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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
---------------------------------------------------------------x
:
In re
:
Chapter 11
:
WASHINGTON MUTUAL, INC., et al.,1
:
Case No. 08-12229 (MFW)
:
Debtors.
:
(Jointly Administered)
:
Hearing Date: October 30, 2008 at 2:00 p.m.
:
---------------------------------------------------------------x
Objection Deadline: October 23, 2008 at 4:00 p.m.
APPLICATION OF DEBTORS PURSUANT TO SECTIONS 327(a)
AND 328(a) OF THE BANKRUPTCY CODE FOR AUTHORIZATION TO
EMPLOY AND RETAIN WEIL, GOTSHAL & MANGES LLP AS ATTORNEYS
FOR THE DEBTORS, NUNC PRO TUNC TO THE COMMENCEMENT DATE
TO THE HONORABLE MARY F. WALRATH,
UNITED STATES BANKRUPTCY JUDGE:
Washington Mutual, Inc. (“WMI”) and WMI Investment Corp. (“WMI
Investment”), as debtors and debtors in possession (collectively, the “Debtors”), respectfully
represent:
Background
1.
On September 26, 2008 (the “Commencement Date”), each of the Debtors
commenced with this Court a voluntary case pursuant to chapter 11 of title 11 of the United
States Code (the “Bankruptcy Code”). The Debtors’ chapter 11 cases have been consolidated for
procedural purposes only and are being jointly administered pursuant to Rule 1015(b) of the
Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). As of the date hereof, the
1
The Debtors in these chapter 11 cases along with the last four digits of each
Debtor’s federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI
Investment Corp. (5395). The Debtors’ principal offices are located at 1301 Second Avenue,
Seattle, Washington 98101.
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Debtors continue to operate their businesses and manage their properties as debtors in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
WMI’s Business
2.
WMI is a holding company incorporated in the State of Washington and
headquartered at 1301 Second Avenue, Seattle, Washington 98101. WMI is the direct parent of
WMI Investment, which serves as an investment vehicle for WMI and holds a variety of
securities. WMI Investment is incorporated in the state of Delaware.
3.
Prior to the Commencement Date, WMI was a savings and loan holding
company and had numerous direct and indirect banking subsidiaries, including Washington
Mutual Bank (“WMB”) and Washington Mutual Bank fsb (“WMBfsb”). WMI also has certain
non-banking, non-debtor subsidiaries (the “Non-Debtor Subsidiaries”).
4.
Prior to the Commencement Date, WMI, like all savings and loan holding
companies, was subject to regulation by the Office of Thrift Supervision (the “OTS”). WMB
and WMBfsb, like all depository institutions with federal thrift charters, were also subject to
regulation and examination by the OTS. In addition, WMI’s banking and nonbanking
subsidiaries were overseen by various federal and state authorities, including the Federal Deposit
Insurance Corporation (“FDIC”) and the Comptroller of the Currency of the United States. On
September 25, 2008, the Director of the OTS, by order number 2008-36, appointed the FDIC as
receiver for WMB and advised that the receiver was immediately taking possession of WMB
(the “Bank Receivership”). The Debtors have been advised that the receiver sold substantially
all assets of WMB to JPMorgan Chase Bank, National Association (“JPMorgan Chase”)
pursuant to that certain Purchase and Assumption Agreement, dated as of September 25, 2008.
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5.
WMI’s assets consist of its common stock interest in WMB, its interest in
its non-banking subsidiaries, and approximately $5 billion of cash that WMI and its non-banking
subsidiaries (including WMI Investment Corp.) had on deposit at WMB and its other banking
subsidiaries immediately prior to the time the FDIC was appointed as receiver. WMI is in the
process of evaluating these and other assets for purposes of ultimate distribution to its creditors.
Jurisdiction
6.
This Court has jurisdiction to consider this matter pursuant to 28 U.S.C.
§§ 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper
before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
Retention of WG&M
7.
The Debtors seek court approval pursuant to sections 327(a) and 328(a) of
the Bankruptcy Code to employ and retain Weil, Gotshal & Manges LLP (“WG&M” or the
“Firm”) as their attorneys in connection with the commencement and prosecution of their chapter
11 cases, nunc pro tunc to the Commencement Date. Pursuant to sections 327(a) and 328(a) of
the Bankruptcy Code, the Debtors request that the Court approve the retention of WG&M, under
a general retainer, as their attorneys, to perform the extensive legal services that will be
necessary during their chapter 11 cases in accordance with WG&M’s normal hourly rates in
effect when services are rendered and WG&M’s normal reimbursement policies. A form of
proposed order is attached hereto as Exhibit “A.”
The Retention of WG&M is Warranted
8.
The Debtors have been informed that Marcia L. Goldstein, Michael F.
Walsh and Brian S. Rosen, members of WG&M, as well as other members of, counsel to, and
associates of WG&M who will be employed in these chapter 11 cases, are members in good
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3
standing of, among others, the Bar of the State of New York and the United States District Court
for the Southern District of New York. Marcia L. Goldstein, Michael F. Walsh, and Brian S.
Rosen are applying contemporaneously herewith for admission pro hac vice to practice before
this Court.
9.
The Debtors have selected WG&M as their attorneys because of the
Firm’s knowledge of the Debtors’ business and financial affairs and its extensive general
experience and knowledge, and in particular, its recognized expertise in the field of debtor’s
protections and creditors’ rights and business reorganizations under chapter 11 of the Bankruptcy
Code. WG&M has been actively involved in most of the major chapter 11 cases over the last
several decades. WG&M currently represents or has represented, among others, the following
debtors: Enron Corp., Worldcom, Inc., Global Crossing Ltd., Lehman Brothers Holdings Inc.,
SemCrude, L.P., Vertis Holdings, Inc., LandSource Communities Development, LLC, PRC,
LLC, Charys Holding Company, Inc., Hollinger Inc., The New York Racing Association,
Lexington Precision Corp., Silicon Graphics, Inc., Atkins Nutritionals, Inc., Footstar, Inc., New
World Pasta Company, Parmalat USA Corp., Loral Space & Communications Ltd., TL
Administration Corporation, Republic Engineered Product Holdings, WestPoint Stevens Inc.,
Adelphia Business Solutions, Inc., APW Ltd., Formica Corp., Regal Cinemas, Inc., Sunbeam
Corporation, Bethlehem Steel Corporation, Armstrong Worldwide Industries, Genesis Health
Services Corp., Grand Union Corporation, Weiner’s Stores, Carmike Cinemas, Inc., DIMAC
Marketing Corporation, Sun Healthcare Group, Inc., United Companies Financial Corporation,
Bruno’s, Inc., The Drexel Burnham Lambert Group, Inc., Eastern Air Lines, Inc., Edison
Brothers Stores, Inc. I & II, and Texaco Inc.
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10.
Additionally, in connection with its prepetition representation of the
Debtors with respect to alternatives for refinancing their financial obligations and the preparation
for, and commencement of, these chapter 11 cases, WG&M has become familiar with the
Debtors’ business, affairs, and capital structure. Accordingly, WG&M has the necessary
background to deal effectively with many of the potential legal issues and problems that may
arise in the context of the Debtors’ chapter 11 cases. The Debtors believe that WG&M is both
well qualified and uniquely able to represent them in their chapter 11 cases in an efficient and
timely manner.
11.
Should the Debtors be required to retain attorneys other than WG&M in
connection with the prosecution of these chapter 11 cases, the Debtors, their estates, and all
parties in interest would be unduly prejudiced by the time and expense necessarily attendant to
such attorneys’ familiarization with the intricacies of the Debtors and their business operations.
12.
In addition to this Application, the Debtors have filed or expect to file
shortly an application to employ Richards, Layton & Finger, P.A. (“RLF”), as co-counsel to the
Debtors. The Debtors may also file applications to employ additional professionals. WG&M
has advised the Debtors that it intends to monitor carefully and coordinate with RLF and any
other professional retained by the Debtors in these chapter 11 cases and will clearly delineate
their respective duties so as to prevent duplication of effort, whenever possible. Rather than
resulting in any extra expense to the Debtors’ estates, it is anticipated that the efficient
coordination of efforts of the Debtors’ attorneys and other professionals will greatly add to the
progress and effective administration of these chapter 11 cases.
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Scope of Services
13.
The employment of WG&M under a general retainer and in accordance
with its normal hourly rates and disbursement policies in effect from time to time is appropriate
and necessary to enable the Debtors to execute faithfully their duties as debtors and debtors in
possession and to prosecute their chapter 11 cases. Subject to further order of this Court, it is
proposed that WG&M be employed to render the following professional services:
a.
take all necessary action to protect and preserve the Debtors’ estates,
including the prosecution of actions on the Debtors’ behalf, the defense of
any actions commenced against the Debtors, the negotiation of disputes in
which the Debtors are involved, and the preparation of objections to
claims filed against the Debtors’ estates;
b.
prepare on behalf of the Debtors, as debtors in possession, all necessary
motions, applications, answers, orders, reports, and other papers in
connection with the administration of the Debtors’ estates;
c.
to take all necessary actions in connection with a chapter 11 plan and
related disclosure statement(s) and all related documents, and such further
actions as may be required in connection with the administration of the
Debtors’ estates; and
d.
perform all other necessary legal services in connection with the
prosecution of these chapter 11 cases.
14.
It is necessary for the Debtors to employ attorneys under a general retainer
to render the foregoing professional services.
WG&M’s Disinterestedness
15.
WG&M has stated its desire and willingness to act in these chapter 11
cases and render the necessary professional services as attorneys for the Debtors. To the best of
the Debtors’ knowledge, the members of, counsel, and associates of, WG&M do not have any
connection with or any interest adverse to the Debtors, their creditors, or any other party in
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interest, or their respective attorneys and accountants, except as may be set forth in the Affidavit
of Brian S. Rosen, a member of WG&M (the “Rosen Affidavit”), annexed hereto as Exhibit “B.”
16.
Based upon the Rosen Affidavit, the Debtors submit that WG&M is a
“disinterested person,” as that term is defined in section 101(14) of the Bankruptcy Code, as
modified by section 1107(b) of the Bankruptcy Code. The Debtors have been informed that
WG&M will conduct an ongoing review of its files to ensure that no disqualifying circumstances
arise, and if any new relevant facts or relationships are discovered, WG&M will supplement its
disclosure to the Court.
Professional Compensation
17.
As set forth in the Rosen Affidavit, WG&M received a retainer fee and an
advance against expenses for services to be performed in preparation for and prosecution of these
chapter 11 cases, in the amount disclosed in the Rosen Affidavit. Prior to the Commencement
Date, WG&M applied amounts received from the Debtors as compensation for professional
services performed relating to the potential commencement of these chapter 11 cases, as well as
for reasonable and necessary expenses incurred in connection therewith.
18.
The Debtors understand that WG&M hereafter intends to apply to the
Court for allowances of compensation and reimbursement of expenses in accordance with the
applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules of
Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the “Local Rules”), the guidelines (the “Guidelines”) established by the United States
Trustee for the District of Delaware (the “U.S. Trustee”), and further orders of this Court
(“Orders”) for all services performed and expenses incurred after the Commencement Date.
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19.
For services rendered by WG&M in these cases, the Debtors, subject to
the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Guidelines,
and the Orders, propose to pay WG&M its customary hourly rates for services rendered that are
in effect from time to time, as set forth in the Rosen Affidavit and to reimburse WG&M
according to its customary reimbursement policies. The Debtors respectfully submit that
WG&M’s rates and policies are reasonable.
Notice
20.
No trustee, examiner, or statutory creditors’ committee has been appointed
in these chapter 11 cases. Notice of this Motion has been provided to: (i) the U.S. Trustee;
(ii) each of the Debtors’ twenty (20) largest unsecured creditors; (iii) the OTS; (iv) the FDIC;
(v) counsel to JP Morgan Chase; (vi) counsel to Bank of New York Mellon; and (vii) all parties
who have requested notice pursuant to Bankruptcy Rule 2002. In light of the nature of the relief
requested, the Debtors submit that no other or further notice need be provided.
No Previous Request
21.
No previous request for the relief sought herein has been made to this or
any other Court.
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
---------------------------------------------------------------x
:
In re
: Chapter 11
:
: Case No. 08-12229 (MFW)
WASHINGTON MUTUAL, INC., et al.,
:
Debtors.
: (Jointly Administered)
:
: Hearing Date: October 30, 2008 at 2:00 p.m.
---------------------------------------------------------------x Objection Deadline: October 23, 2008 at 4:00 p.m.
NOTICE OF APPLICATION AND HEARING
PLEASE TAKE NOTICE that, on October 11, 2008, the above-captioned debtors
and debtors in possession (collectively, the “Debtors”) filed the Application of the Debtors
Pursuant to 28 U.S.C. § 327(c) and 328(a) of the Bankruptcy Code for Authorization to
Employ and Retain Weil, Gotshal & Manges LLP as Attorneys for the Debtors, Nunc Pro
Tunc to the Commencement Date (the “Application”) with the United States Bankruptcy Court
for the District of Delaware, 824 Market Street, 3rd Floor, Wilmington, Delaware 19801 (the
“Bankruptcy Court”).
PLEASE TAKE FURTHER NOTICE that any responses or objections to the
Motion must be in writing, filed with the Clerk of the Bankruptcy Court, 824 Market Street, 3rd
Floor, Wilmington, Delaware 19801, and served upon and received by the undersigned proposed
counsel for the Debtors on or before October 23, 2008 at 4:00 p.m. (Eastern Daylight Time).
PLEASE TAKE FURTHER NOTICE that if an objection is timely filed, served
and received and such objection is not otherwise timely resolved, a hearing to consider such
objection and the Application will be held before The Honorable Mary F. Walrath at the
RLF1-3330408-1
Bankruptcy Court, 824 Market Street, 5th Floor, Courtroom 4, Wilmington, Delaware 19801 on
October 30, 2008 at 2:00 p.m. (Eastern Daylight Time).
IF NO OBJECTIONS TO THE APPLICATION ARE TIMELY FILED,
SERVED AND RECEIVED IN ACCORDANCE WITH THIS NOTICE, THE COURT
MAY GRANT THE RELIEF REQUESTED IN THE APPLICATION WITHOUT
FURTHER NOTICE OR HEARING.
Dated: October 11, 2008
Wilmington, Delaware
/s/ Lee E. Kaufman
Mark D. Collins (No. 2981)
Chun I. Jang (No. 4790)
Lee E. Kaufman (No. 4877)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
– and –
Marcia L. Goldstein, Esq.
Brian S. Rosen, Esq.
Michael F. Walsh, Esq.
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Proposed Attorneys for the Debtors
and Debtors in Possession
RLF1-3330408-1
Exhibit A
Proposed Form of Order
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---------------------------------------------------------------x
:
In re
:
Chapter 11
:
:
:
Case No. 08-12228 (MFW)
:
:
Debtors.
:
:
:
D.I. _________________
---------------------------------------------------------------x
ORDER PURSUANT TO SECTIONS 327(a) AND 328(a) OF THE
BANKRUPTCY CODE AND FEDERAL RULE OF BANKRUPTCY
PROCEDURE 2014(a) AUTHORIZING THE EMPLOYMENT AND
RETENTION OF WEIL, GOTSHAL & MANGES LLP AS ATTORNEYS
FOR THE DEBTORS, NUNC PRO TUNC TO THE COMMENCEMENT DATE
Upon the application, dated October 10, 2008 (the “Application”) of
Washington Mutual, Inc. (“WMI”) and WMI Investment Corp. (“WMI Investment”), as
debtors and debtors in possession (collectively, the “Debtors”), for entry of an order,
pursuant to sections 327(a) and 328(a) of title 11 of the United States Code (the
“Bankruptcy Code”) and Rules 2014(a) and 2016 of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”), for authorization to employ and retain Weil,
Gotshal & Manges LLP (“WG&M”) as their attorneys under a general retainer, nunc pro
tunc to the date of the commencement of these chapter 11 cases, all as more fully set
1
The Debtors in these chapter 11 cases along with the last four digits of each Debtor’s
federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI
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forth in the Application2; and upon consideration of the Affidavit of Brian S. Rosen, a
member of WG&M, sworn to on October 10, 2008 annexed to the Application as Exhibit
“B” (the “Rosen Affidavit”); and the Court being satisfied, based on the representations
made in the Application and the Rosen Affidavit, that WG&M is “disinterested” as such
term is defined in section 101(14) of the Bankruptcy Code, as modified by section
1107(b) of the Bankruptcy Code, and as required under section 327(a) of the Bankruptcy
Code, that WG&M represents no interest adverse to the Debtors or to their estates with
respect to the matters upon which WG&M is to be engaged, and that the employment of
WG&M is necessary and in the best interests of the Debtors and their estates; and the
Court having jurisdiction to consider the Application and the relief requested therein
pursuant to 28 U.S.C. §§ 157 and 1334; and consideration of the Application 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 due
and proper notice of the Application having been provided to the parties listed therein;
and it appearing that no other or further notice need be provided; and the Court having
determined that the relief sought in the Application is in the best interest of the Debtors,
their creditors, and all parties in interest; and the Court having determined that the legal
and factual bases set forth in the Application establish just cause for the relief granted
herein; and upon all of the proceedings had before the Court and after due deliberation
and sufficient cause appearing therefor, it is
ORDERED that the Application is granted; and it is further
2
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed
to them in the Application.
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2
ORDERED that, pursuant to sections 327(a) and 328(a) of the Bankruptcy
Code and Bankruptcy Rule 2014(a), the Debtors are authorized to employ and retain
WG&M, as their attorneys under a general retainer on the terms and conditions set forth
in the Application nunc pro tunc to the date of the commencement of these chapter 11
cases; and it is further
ORDERED that WG&M shall be compensated in accordance with the
procedures set forth in sections 330 and 331 of the Bankruptcy Code, the applicable
Bankruptcy Rules, the Local Rules of Bankruptcy Practice and Procedure of the United
States Bankruptcy Court for the District of Delaware, and such other procedures as may
be fixed by order of this Court; and it is further
ORDERED that this Court shall retain jurisdiction to hear and determine
all matters arising from or related to the implementation, interpretation and/or
enforcement of this Order.
Dated: Wilmington, Delaware
October ___, 2008
THE HONORABLE MARY F. WALRATH
UNITED STATES BANKRUPTCY JUDGE
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3
Exhibit B
Brian S. Rosen’s Affidavit
---------------------------------------------------------------x
:
In re
:
Chapter 11
:
:
Case No. 08-12229 (MFW)
:
Debtors.
:
:
:
Hearing Date: October 30, 2008 at 2:00 p.m.
---------------------------------------------------------------x
Objection Deadline: October 23, 2008 at 4:00 p.m.
AFFIDAVIT AND DISCLOSURE STATEMENT ON BEHALF
OF WEIL, GOTSHAL & MANGES LLP PURSUANT TO
SECTIONS 327, 328(a), 329 AND 504 OF THE BANKRUPTCY CODE
AND FEDERAL RULES OF BANKRUPTCY PROCEDURE 2014(a) AND 2016(b)
STATE OF NEW YORK
COUNTY OF NEW YORK
)
)
)
ss:
Brian S. Rosen, being duly sworn, deposes and says:
1.
I am a member of the firm of Weil, Gotshal & Manges LLP (“WG&M” or the
“Firm”), an international law firm with principal offices at 767 Fifth Avenue, New York, New
York 10153 and regional offices in Washington, D.C.; Austin, Dallas and Houston, Texas;
Miami, Florida; Boston, Massachusetts; Providence, Rhode Island; Wilmington, Delaware; and
Redwood Shores, California; and foreign offices in London, United Kingdom; Paris, France;
Budapest, Hungary; Warsaw, Poland; Frankfurt and Munich, Germany; Prague, The Czech
Republic; and Beijing, Hong Kong, and Shanghai, China.
1
The Debtors in these chapter 11 cases along with the last four digits of each
Debtor’s federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI
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2.
I submit this Affidavit to provide the disclosure required under Rules 2014(a) and
2016(b) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) in connection
with the application, dated October 10, 2008 (the “Application”), of the above-captioned debtors
and debtors in possession (collectively, the “Debtors”), for approval of the Debtors’ retention of
WG&M as their attorneys in these chapter 11 cases pursuant to sections 327(a), 328(a) and 329
of title 11 of the United States Code (the “Bankruptcy Code”). Unless otherwise stated in this
Affidavit, I have personal knowledge of the facts set forth herein. To the extent any information
disclosed herein requires amendment or modification upon WG&M’s completion of further
review or as additional party in interest information becomes available to it, a supplemental
affidavit will be submitted to the Court reflecting such amended or modified information.
3.
Neither I, WG&M, nor any member, counsel to, or associate of the Firm
represents any entity other than the Debtors in connection with these chapter 11 cases. In
addition, to the best of my knowledge, after due inquiry, neither I, WG&M, nor any member,
counsel to, or associate of the Firm represents any party in interest in these chapter 11 cases in
matters related to these chapter 11 cases. Prior to September 25, 2008, WG&M provided
services to Washington Mutual Bank (“WMB”), the former subsidiary thrift of WMI and a likely
party in interest in these chapter 11 cases, on unrelated matters. At the time the Office of Thrift
Supervision appointed the Federal Deposit of Insurance Corporation as receiver for WMB and
advised that the receiver was immediately taking possession of WMB (the “Bank
Receivership”), WMB owed WG&M approximately $5,000.
WG&M Disclosure Procedures
4.
WG&M has in the past represented, currently represents, and may in the future
represent entities that are claimants or interest holders of the Debtors in matters unrelated to the
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Debtors’ pending chapter 11 cases. WG&M, which employs approximately 1,300 attorneys, has
a large and diversified legal practice that encompasses the representation of many financial
institutions and commercial corporations. Some of those entities are, or may consider
themselves to be, creditors or parties in interest in the pending chapter 11 cases or to otherwise
have interests in these cases.
5.
In preparing this Affidavit, I used a set of procedures developed by WG&M to
ensure compliance with the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the
Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the
District of Delaware (the “Local Rules”) regarding the retention of professionals by a debtor
under the Bankruptcy Code (the “Firm Disclosure Procedures”). Pursuant to the Firm Disclosure
Procedures, I performed, or caused to be performed, the following actions to identify the parties
relevant to this Affidavit and to ascertain WG&M’s connection to such parties:
a.
A comprehensive list of the types of entities that may have contacts with
the Debtors was developed through discussions with the WG&M attorneys
who have provided services to the Debtors and in consultation with senior
management of the Debtors (the “Retention Checklist”). A copy of the
Retention Checklist is attached hereto as Exhibit “A.”
b.
WG&M obtained information responsive to the Retention Checklist
through several inquiries of the Debtors’ senior management and review
of documents provided by the Debtors to WG&M. WG&M then used that
information, together with other information identified by WG&M, to
compile a list of the names of entities that may be parties in interest in
these chapter 11 cases (the “Potential Parties In Interest”).
c.
WG&M maintains a master client database as part of its conflict clearance
and billing records. The master client database includes the names of the
entities for which any attorney time charges have been billed since the
database was first created (the “Client Database”). The Client Database
includes the name of each current and former client, the names of the
parties who are or were related or adverse to such current or former client,
and the names of the WG&M personnel who are or were responsible for
current or former matters for such client. It is the policy of WG&M that
no new matter may be accepted or opened within the Firm without
completing and submitting to those charged with maintaining the conflict
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3
clearance system the information necessary to check each such matter for
conflicts, including the identity of the prospective client, the name of the
matter, adverse parties and, in some cases, parties related to the client or to
an adverse party. Accordingly, the database is updated for every new
matter undertaken by WG&M. The accuracy of the system is a function
of the completeness and accuracy of the information submitted by the
attorney opening a new matter.
d.
WG&M compared the names of each of the Potential Parties In Interest to
client matters in the Client Database for which professional time was
recorded during the two years prior to the comparison.2 Any matches to
names in the Client Database generated by the comparison were compiled,
together with the names of the respective WG&M personnel responsible
for the identified client matters (the “Client Match List”).
e.
A WG&M attorney then reviewed the Client Match List and deleted
obvious name coincidences and individuals or entities that were adverse to
WG&M’s clients in both this matter and the matter referenced on the
Client Match List.
f.
Using information in the Client Database concerning entities on the Client
Match List, and making general and, if applicable, specific inquiries of
WG&M personnel, WG&M verified that it does not represent and has not
represented any entity on the Client Match List in connection with the
Debtors or these chapter 11 cases.
g.
In addition, a general inquiry to all WG&M personnel (attorneys and staff)
was sent by electronic mail to determine whether any such individual or
any member of his or her household (i) owns any debt or equity securities
of any of the Debtors; (ii) holds a claim against any of the Debtors or any
of the Debtors’ significant stockholders; or (iii) is or was an officer,
director, or employee of any of the Debtors or any of the Debtors’
significant stockholders.
WG&M’s Connections with the Debtors
6.
WG&M compiled responses to the foregoing inquiries for the purposes of
preparing this Affidavit. Responses to the inquiry described in paragraph 5(g) hereof indicate
that, as of the Commencement Date, several WG&M lawyers and support staff and/or their
2
For purposes of the Firm Disclosure Procedures, WG&M considers an entity a “former client” if
all matters for such client have been closed and professional time was recorded within the past two years.
Because the Firm Disclosure Procedures only reflect client activity during the past two years, matches to
client matters outside that timeframe are not reflected in this Affidavit.
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4
family members held claims against, or equity interests in the Debtors. However, upon
information and belief, since such time, such claims and equity interests have been divested
through contributions to charity. WG&M understands that numerous WG&M employees may
have or had accounts or other relationships with Washington Mutual, Inc.’s former subsidiaries
WMB and Washington Mutual Bank fsb. However, WG&M does not believe that these
relationships represent an interest adverse to the Debtors’ estates.
7.
WG&M has rendered restructuring-related legal services to the Debtors since
September 16, 2008. Since that time, WG&M has advised the Debtors concerning their affairs,
debt obligations, and restructuring alternatives. WG&M also has performed services necessary
to enable the Debtors to file for protection under chapter 11. WG&M, working together with
Richards, Layton & Finger, P.A. (“RLF”), was primarily responsible for the preparation of the
chapter 11 petitions, initial motions, and applications relating to these chapter 11 cases and their
commencement.
WG&M’s Connections with Parties in Interest
in Matters Unrelated to these Chapter 11 Cases
8.
Either I, or an attorney working under my supervision, reviewed the connections
between WG&M and the clients identified on the Client Match List and the connections between
those entities and the Debtors and determined, in each case, that WG&M does not hold or
represent an interest that is adverse to the Debtors’ estates and that WG&M is a “disinterested
person” as such term is defined in section 101(14) of the Bankruptcy Code, as modified by
section 1107(b) of the Bankruptcy Code, for the reasons discussed below.
9.
WG&M previously has represented, currently represents, and may represent in the
future the entities described below (or their affiliates), in matters unrelated to the Debtors. The
disclosure list, attached as Exhibit “B” hereto, is the product of implementing the Firm
NY2:\1920784\12\1563412!.DOC\79831.0003
5
Disclosure Procedures. An entity is listed as a “Current Client” in Exhibit B if WG&M has any
open matters for such entity or a known affiliate of such entity and attorney time charges have
been recorded on any such matters within the past two years. An entity is listed as a “Former
Client” on Exhibit B if WG&M represented such entity or a known affiliate of such entity within
the past two years based on recorded attorney time charges on a matter, but all matters for such
entity or any known affiliate of such entity have been formally closed. WG&M has not
represented, does not represent, and will not represent any of such entities in matters directly
related to the Debtors or these chapter 11 cases.
10.
To the best of my knowledge and information, the annual fees for each of the last
two years paid to WG&M by any entity listed on Exhibit B, other than General Electric Co.,
Microsoft Corporation, Citigroup, Lehman Brothers, and Merrill Lynch & Co., did not exceed
1% of the annual gross revenue of WG&M.
11.
In addition to the entities identified in Exhibit B, the entities identified in
Exhibit “C” attached hereto, either (i) have a name similar to a client identified on the Client
Match List or (ii) are or may be related to such a client (collectively, the “Potential Clients”).
After a diligent effort, WG&M was unable to determine whether the similarity of names was in
fact a name coincidence or whether, and to what extent, the Potential Client is related to a client
identified on the Client Match List. Out of an abundance of caution, however, WG&M has
confirmed that, similar to the clients identified above, WG&M has not represented, does not
represent, and will not represent any of the Potential Clients in matters directly related to the
Debtors or these chapter 11 cases.
12.
In addition to the foregoing, through diligent inquiry, I have ascertained no
connection, as such term is used in section 101(14)(C) of the Bankruptcy Code, as modified by
NY2:\1920784\12\1563412!.DOC\79831.0003
6
section 1107(b), and Bankruptcy Rule 2014(a), between WG&M and (i) the Office of the United
States Trustee for the District of Delaware (the “U.S. Trustee”) or any person employed by the
office of the U.S. Trustee, (ii) any attorneys, accountants, or financial consultants in these
chapter 11 cases, or (iii) any investment bankers that represent or may represent the Debtors or
claimants or other parties in interest in these chapter 11 cases, except as set forth herein. As part
of its practice, WG&M appears in cases, proceedings, and transactions involving many different
attorneys, accountants, financial consultants, and investment bankers, some of which now or may
in the future represent claimants and other parties in interest in these cases. WG&M has not
represented, and will not represent, any of such parties in relation to the Debtors or their chapter
11 cases. WG&M does not have any relationship with any such attorneys, accountants, financial
consultants, and investment bankers that would be adverse to the Debtors or their estates.
13.
Additionally, WG&M has represented, and may currently represent, entities
which hold or may in the future hold certain of the Debtors’ debt in beneficial accounts on behalf
of unidentified parties.
14.
Because distressed debt is actively traded in the commercial markets, WG&M
may be unaware of the actual holder of such debt at any given moment. WG&M represents
numerous entities in unrelated matters that may buy and/or sell distressed debt of chapter 11
debtors.
15.
Additionally, WG&M has represented, may currently represent, and may in the
future represent entities with respect to matters involving legal and regulatory authorities such as
the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, the Securities and
Exchange Commission, and the Board of Governors of the Federal Reserve, among others,
which may be involved in the Debtors’ chapter 11 cases. Furthermore, WG&M has represented,
NY2:\1920784\12\1563412!.DOC\79831.0003
7
may currently represent, and may in the future represent JPMorgan Chase Bank, National
Association, the purchaser of substantially all of WMB’s assets from the receiver. WG&M has
not and will not represent any of the aforementioned entities, or any of their respective affiliates
or subsidiaries, in relation to the Debtors or their chapter 11 cases. Similarly, to the extent
required, the Debtors will retain appropriate conflicts counsel.
16.
Despite the efforts described herein to identify and disclose WGM’s connections
with the parties in interest in these chapter 11 cases, because the Debtors are a large enterprise
with numerous and complex relationships with creditors and its former banking subsidiaries,
WGM is unable to state with certainty that every client relationship or other connection has been
disclosed. In this regards, WG&M will continue to apply the Firm Disclosure Procedures and if
any new material relevant facts or relationships are discovered or arise, WGM will promptly file
a supplemental disclosure with the Court.
WG&M Is Disinterested
17.
Based on the foregoing, insofar as I have been able to ascertain after diligent
inquiry, I believe WG&M does not hold or represent an interest adverse to the Debtors’ estates in
the matters upon which WG&M is to be employed, and WG&M is “disinterested” as such term
is defined in section 101(14) of the Bankruptcy Code, as modified by section 1107(b) of the
Bankruptcy Code.
WG&M’s Retainer, Rates, and Billing Practices
18.
WG&M is not a creditor of the Debtors. During the approximate two week
period prior to the commencement of these cases, WG&M received from the Debtors an
aggregate of $950,000.00 for professional services performed and expenses incurred as advance
payments to cover an estimate of charges for the period September 16, 2008 through the
Commencement Date for professional services performed and to be performed, and expenses
NY2:\1920784\12\1563412!.DOC\79831.0003
8
incurred and to be incurred, in connection with these chapter 11 cases, including $50,000
received on behalf of RLF. As of the Commencement Date, the fees and expenses incurred by
WG&M approximated $700,000. The precise amount will be determined upon the final
recording of all time and expense charges. WG&M has used the advance payments received to
credit the Debtors’ account for WG&M’s estimated charges for professional services performed
and expenses incurred up to the time of the commencement of these chapter 11 cases and has
reduced the balance of the credit available to the Debtors by the amount of such charges. As of
the Commencement Date, WG&M had a remaining credit balance in favor of the Debtors for
future professional services to be performed, and expenses to be incurred, in the approximate
amount of $200,000. The $50,000 retainer received on behalf of RLF has been forwarded to
RLF.
19.
WG&M intends to charge the Debtors for services rendered in these chapter 11
cases at WG&M’s normal hourly rates in effect at the time the services are rendered. WG&M’s
current customary hourly rates, subject to change from time to time, are $650 to $950 for
members and counsel, $355 to $595 for associates, and $155 to $290 for paraprofessionals.
20.
WG&M also intends to seek reimbursement for expenses incurred in connection
with its representation of the Debtors in accordance with WG&M’s normal reimbursement
policies, subject to any modifications to such policies that WG&M may be required to make to
comply with orders of this Court, the Bankruptcy Code, the Bankruptcy Rules, the Local Rules,
and the guidelines (the “Guidelines”) established by the office of the U.S. Trustee. WG&M’s
disbursement policies pass through all out of pocket expenses at actual cost or an estimated
actual cost when the actual cost is difficult to determine. For example, with respect to
duplication charges, WG&M will charge $.10 per page because the actual cost is difficult to
NY2:\1920784\12\1563412!.DOC\79831.0003
9
determine. Similarly, as it relates to computerized research, WG&M believes that it does not
make a profit on that service as a whole although the cost of any particular search is difficult to
ascertain. Other reimbursable expenses (whether the service is performed by WG&M in-house
or through a third party vendor) include, but are not limited to, facsimiles, toll calls, overtime,
overtime meals, deliveries, court costs, cost of food at meetings, transcript fees, travel, and clerk
fees.
21.
No promises have been received by WG&M, or any member, counsel, or
associate thereof, as to payment or compensation in connection with these chapter 11 cases other
than in accordance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local
Rules, the Guidelines, and the retainer letter between the Debtors and WG&M, dated September
16, 2008. WG&M has no agreement with any other entity to share with such entity any
compensation received by WG&M or by such entity.
22.
The Application requests, pursuant to section 328(a) of the Bankruptcy Code,
approval of their retention of WG&M on rates, terms, and conditions consistent with what
WG&M charges non-chapter 11 debtors, namely, prompt payment of WG&M’s hourly rates as
adjusted from time to time and reimbursement of out-of-pocket disbursements at cost or based on
formulas that approximate the actual cost where the actual cost is not easily ascertainable.
Subject to these terms and conditions, WG&M intends to apply pursuant to section 330 of the
Bankruptcy Code for allowances of compensation for professional services rendered in these
chapter 11 cases and for reimbursement of actual and necessary expenses incurred in connection
therewith in accordance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the
Local Rules, and the Guidelines.
NY2:\1920784\12\1563412!.DOC\79831.0003
10
Exhibit A
Retention Checklist
Debtors
Non-Debtor, Non-Banking Subsidiaries
Non-Debtor, Banking Subsidiaries
Current and Former Directors/Managers (up to three years)
Current and Former Officers (up to three years)
Director and Officer Affiliations
Employees in the Office of the U.S. Trustee
Banks (Bank Accounts)
Litigation Parties
Trade Names (d/b/a, f/k/a, etc.)
Significant Stockholders
Top 20 Unsecured Creditors
Secured Creditors
Professionals
Governmental Authorities
Non-Governmental Authorities
Taxing Authorities
Vendors, Contract Counterparties, and Other Parties in Interest
Insurance Companies
Litigation Parties
Holders of WMI Securities (including hedge fund custodians and retail brokerage houses)
NY2:\1920784\12\1563412!.DOC\79831.0003
Exhibit B
Current and Former Clients
Matched Entity
Relation to Debtors
Relation to WG&M
ABN AMRO
Incorporated/Equity Finance
Holder of WMI securities
Affiliate of Current Client
ACS Commercial Solutions, Inc.
Vendor
Adobe Systems, Inc.
Vendor
Current Client
Affiliated Computer Services,
Inc.
Vendor
Current Client
AIG Global Investment
Alvarez & Marsal
WMI’s proposed restructuring
advisors and CRO
Current Client
American International Group /
AIG Financial Services Group /
AIG
Affiliated with Alan H.
Fishman (Director of
Washington Mutual, Inc.) and
Insurance Carrier
Current Clients
Avaya Inc.
Vendor
Current Client
Banc of America Securities LLC
Current Client
Bank of America
Affiliated with Alfred R.
Brooks (Officer of
Washington Mutual, Inc.)
Bank of New York Mellon
Top 20 Unsecured Creditor
NY2:\1920784\12\1563412!.DOC\79831.0003
Matched Entity
Relation to Debtors
Relation to WG&M
Barclays Capital-London /
Barclays Global Investors
Holders of WMI securities
Affiliates of Current Client
BDO Seidman
Affiliated with John C. Berens
(Officer of Washington
Mutual, Inc.)
Current Client
BEA Systems, Inc.
Vendor
Bear Stearns & Co., Inc.
Affiliated with Michael S.
Solender (Officer of
Current Client
Bear Stearns Securities Corp.
BearingPoint, Inc.
Vendor
Current Client
BMC Software Distribution, Inc.
/ BMC Software, Inc.
Vendors
Current Clients
BNP Paribas Securities Corp.
Bny Gcm Client Acct (M) Rb6
BNY/DBTC Americas /DBTC
Americas/Deutsche Bank AG,
London
Affiliates of Current Clients
BNY/HVB – Clearing
Affiliates of Current Clients
Charles M. Lillis
Director of Washington
Mutual, Inc.
Current Client
NY2:\1920784\12\1563412!.DOC\79831.0003
2
Matched Entity
Relation to Debtors
Relation to WG&M
Chase Home Finance
Affiliated with Bill Steinmetz
Mutual, Inc.)
Cigna Corp
Current Client
Cisco Systems Capital
Corporation
Vendor
Citicorp
Affiliated with Thomas W.
Cassey (Officer of Washington
Mutual, Inc.)
Citigroup (Travelers)
Current Client
Citigroup Global Markets Inc. /
Solomon Brothers
CrediSights
Vendor
Current Client
Credit Suisse Securities (USA)
LLC
Dell Marketing LP / Dell, Inc.
Vendors
Current Clients
Deloitte & Touche
Vendor
Current Client
Deutsche Bank
Affiliated with Michelle
McCarthy (Officer of
Current Client
Deutsche Bank
Current Client
NY2:\1920784\12\1563412!.DOC\79831.0003
3
Matched Entity
Relation to Debtors
Relation to WG&M
Deutsche Bank Securities, Inc.
Current Client
EMC Corporation
Secured Creditor
Current Client
Fidelity Management & Research
Co.
Fleet Business Credit, LLC
Secured Creditor
FleetBoston Financial Corp.
(n/k/a Bank of America)
Affiliated with Nandita
Bakhshi (Officer of
Current Client
Franklin Templeton Investments
Current Client
GE Aircraft Engines / GE
Financial Assurance / GE
Financial Assurance / GE
Insurance / GE Lighting
Affiliated with Debora M.
Horvath and Thomas W.
Cassey (Officers of
GE Asset Management
General Electric Capital Corp. /
General Electric Company
Affiliated with Debora M.
Horvath and Thomas W.
Cassey (Officers of
Current Clients
Goldman Sachs Execution &
Clearing, L.P. / Goldman Sachs
International / Goldman, Sachs &
Co.
Goldman Sachs Group, Inc.
WMI’s Financial Advisor
Group 1 Software, Inc.
Vendor
NY2:\1920784\12\1563412!.DOC\79831.0003
4
Matched Entity
Relation to Debtors
Relation to WG&M
Hartford Investment Management
Company (HIMCO)
Hartford Steam & Boiler
Insurance Company
HVB- Clearing
Hyperion Software Operations
Vendor
ING Investment Management
Investors Insurance Corp Lmg
J.P. Morgan Securities Inc.
JP Morgan Chase Bank
Party in Interest, and Affiliated
with Frank Vella, Jr. and
Stephen Rotella (Officers of
Current Client
JPMorgan Chase / JPMorgan
Chase - London / JPMorgan
Chase - Luxembourg / JPMorgan
Investment Management
Key Equipment Finance, a
division of Key Corporate Capital
Inc.
Secured Creditor
KPMG, LLP
Vendor
Lazard Freres Asset Management
NY2:\1920784\12\1563412!.DOC\79831.0003
5
Matched Entity
LBI - Lehman Government
Securities Inc. (LBI) / Lehman
Brothers Inc. /Equity Finance /
Lehman Brothers, Inc.
Relation to Debtors
Relation to WG&M
Liberty Insurance Underwriters /
Liberty Mutual
Insurance Companies
Liberty Life Insurance Company
Lincoln Center for the
Performing Arts’ Counsel’s
Council
Affiliated with Michael S.
Solender (Officer of
Current Client
LNR Property Corp.
Affiliated with Stephan E.
Frank (Director of Washington
Mutual, Inc.)
Magellan Health Services Inc.
Affiliated with David
Bonderman (Director of
Current Client
Marsh USA Inc.
Vendor
Current Client
MasterCard
Litigation Parties
Current Client
MasterCard International
Incorporated
Vendor
Current Client
McKinsey & Company Inc U.S.
Vendor
Medcohealth Solutions Inc.
Affiliated with Charles M.
Lillis (Director of Washington
Mutual, Inc.)
Current Client
Mellon Investor Services LLC
Vendor
NY2:\1920784\12\1563412!.DOC\79831.0003
6
Matched Entity
Relation to Debtors
Relation to WG&M
Merrill Lynch
Affiliated with Stephen I.
Chazen (Director of
Current Client
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Metavante Corporation
Vendor
Current Client
MFC Global Investment
Management
Michael S. Solender
Officer of Washington Mutual,
Inc.
Current Client
Microsoft Corp.
Vendor and Affiliated with
William G. Reed, Jr. (Director
of Washington Mutual, Inc.)
Current Client
Microsoft Licensing, GP
Vendor
Morgan Stanley
Affiliated with Anthony T.
Meola (Officer of Washington
Mutual, Inc.)
Current Client
Morgan Stanley & Co.
Incorporated / Morgan StanleyInternational Limited / Morgan
Stanley Asset Management
NEC-Mitsubishi Electronics
Display of America, Inc.
Vendor
New York Stock Exchange
Non-Governmental Authority
Nike Inc.
Affiliated with Regina T.
Montoya (Director of
NY2:\1920784\12\1563412!.DOC\79831.0003
7
Matched Entity
Relation to Debtors
Relation to WG&M
Northrop Grumman Corp.
Affiliated with Stephan E.
Frank (Director of Washington
Mutual, Inc.)
Current Client
Oblix, Inc.
Vendor
Oracle USA, Inc.
Vendor
Pitney Bowes Credit Corporation
Secured Creditor
Price Waterhouse Coopers
Vendor
Current Client
Prudential Investments
Putnam Investment Management
Current Client
Qwest Corporation Corp.
Vendor
RealNetworks
Affiliated with Robert J.
Williams (Officer of
Current Client
Ryanair Holdings PLC
Safeco Corp.
Affiliated with William G.
Reed, Jr. (Director of
Seagate Software (Cayman)
Holdings Corporation
NY2:\1920784\12\1563412!.DOC\79831.0003
8
Matched Entity
Relation to Debtors
Relation to WG&M
Seagate Technology Holdings
Sedgwick Claims Management
Services, Inc.
Vendor
Current Client
Sidley Austin LLP
Vendor
Current Client
State Street Global Advisors
(SSgA) / State Street’s Wealth
Management
Texas Pacific Group
Significant Stockholder and
also affiliated with David
Current Client
The Abernathy Macgregor Group
Inc.
Vendor
Current Client
The Bank of New York
Current Client
The Partnership for New York
City, Inc.
Affiliated with Alan H.
Fishman (Director of
Current Client
TIAA-CREF
Current Client
Toyota Motor Corporation
Affiliated with Jim Gorzalski
Mutual, Inc.)
Travelers
Insurance Company
UBS AG Stamford Branch / UBS
AG London Branch / UBS
Securities LLC
NY2:\1920784\12\1563412!.DOC\79831.0003
9
Matched Entity
Relation to Debtors
Relation to WG&M
UBS Global Asset Management
Virgin Cinemas Ltd.
Walt Disney Co.
Affiliated with Regina T.
Montoya (Director of
Current Client
Washington Mutual Bank
Former Affiliate of
Washington Mutual, Inc.
Current Client
Wellington Management
Company, LLP
Current Client
Wells Fargo
Affiliated with Alfred R.
Brooks (Officer of
Wells Fargo Bank, N.A.
Vendor
Current Client
Williams Companies, Inc.
Affiliated with Charles M.
Lillis (Director of Washington
Mutual, Inc.)
Current Client
Witness Systems, Inc.
Vendor
Current Client
Wolters Kluwer Financial
Services, Inc.
Vendor
Wolverine World Wide, Inc.
Affiliated with Phillip D.
Matthews (Director of
Current Client
XL Specialty Insurance Co.
Insurance Company
NY2:\1920784\12\1563412!.DOC\79831.0003
10
Exhibit C
Potential Client Affiliation
Matched Entity
Relation to Debtors
Relation to WG&M
Ace American Insurance
Company
Insurance Company
May be Related to Current Client
AllianceBernstein Advisors
Alliant Securities, Inc. Turner,
Nord, Kienbaum
May be an Affiliate of Current
Client
Allianz Life Insurance Company
of North America
American Beacon Advisors
AMR Investment Management
AON Risk Services Inc.
Vendor
Bank One National Securities
Chubb
Insurance Company
Citizens Bank of Rhode Island
Trust
Edwards Angell Palmer & Dodge
LLP
Vendor
NY2:\1920784\12\1563412!.DOC\79831.0003
Matched Entity
Relation to Debtors
Relation to WG&M
ExpressJet Holdings Inc.
Affiliated with Larry Kellner
(Director of Washington
Mutual, Inc.)
First Data Mobile Solutions
Affiliated with Nandita
Bakhshi (Officer of
First Data Payment Services LLC
/ First Data Resources LLC
Vendors
First Trust Indiana
Gemplus International SA
Hochtief AG.
Affiliated with Thomas C.
Leppert (Director of
May be an Affiliate of Current
Client
Keystone Health Plan
Keystone, Inc.
Lexington
Insurance Company
MagneTek, Inc.
Affiliated with Daryl D.
David (Officer of Washington
Mutual, Inc.)
Massachusetts Institute of
Technology
Affiliated with Phillip D.
Matthews (Director of
Metropolitan Life Insurance
Company
NY2:\1920784\12\1563412!.DOC\79831.0003
2
Matched Entity
Relation to Debtors
Relation to WG&M
National City Bank - Columbus
Ohio -Sub A/C
Old Republic
Insurance Company
Maybe an affiliate of a Current
Client
Oxford Health Plans Inc.
SBC Global Services
Vendor
Securities and Exchange
Commission
Governmental Authority
Siemens Business Services Inc.
Vendor
U.S. Chamber of Commerce
Affiliated with Thomas C.
Leppert (Director of
May be Related to Former Client
US Bank Trust National
Association
Top 20 Unsecured Creditor
Weyerhaeuser Co.
Affiliated with Daryl D.
David (Officer of Washington
Mutual, Inc.)
NY2:\1920784\12\1563412!.DOC\79831.0003
3

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