Bar Date Motion - Archdiocesan Reorganization
UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. CHAPTER 11 CASE __________________________________________________________________________ NOTICE OF HEARING AND VERIFIED MOTION OF THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS FOR ORDER (1) ESTABLISHING DEADLINES FOR FILING PROOFS OF CLAIM; (2) APPROVING PROOF OF CLAIM FORMS; (3) APPROVING FORM AND MANNER OF NOTICE THEREOF; AND (4) APPROVING CONFIDENTIALITY PROCEDURES ____________________________________________________________________________ TO: All parties-in-interest specified in Local Rule 9013-3 The Archdiocese of Saint Paul and Minneapolis (the “Archdiocese” or the “Debtor”) moves the court for the relief requested below and gives notice of hearing: NOTICE OF HEARING AND MOTION 1. The court will hold a hearing on this motion at 9:00 a.m. on April 16, 2015, before the Honorable Robert J. Kressel in Courtroom 8 West, United States Courthouse, 300 South Fourth Street, Minneapolis, Minnesota. 2. Pursuant to Local Rule 9006-1(c), any response to this motion must be filed and served not later than April 11, 2015 which is five days before the time set for the hearing (including Saturdays, Sundays, and holidays). UNLESS A RESPONSE OPPOSING THE MOTION IS TIMELY FILED, THE COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT A HEARING. JURISDICTION 3. This court has jurisdiction over this motion pursuant to 28 U.S.C. §§ 157 and 1334, Fed. R. Bankr. P. 5005, and Local Rule 1070-1. This matter is a core proceeding under 28 U.S.C. § 157(b). Venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. The above-captioned Chapter 11 case was filed on January 16, 2015 (the “Petition Date”), and is now pending in this Court. 4. This motion arises under Sections 105, 107, 501 and 502 of the Bankruptcy Code, as well as Fed. R. Bankr. P. 1007(j), 2002(a), 3003(c) and 9018, and Local Rule 3002-1. Notice of the hearing on this motion is provided pursuant to Local Rules 9013-3 and 2002-1(b). RELIEF REQUESTED 5. In order to fully and fairly administer its estate, solicit acceptances or rejections in connection with a Chapter 11 plan, and make distributions thereunder, the Archdiocese must obtain complete and accurate information regarding the nature, validity, and amount of all claims that will be asserted in this case. 6. To this end, the Archdiocese respectfully requests that, pursuant to Bankruptcy Rule 3003(c)(3), the court: (a) establish deadlines within which proofs of claim against the Archdiocese’s estate are to be filed by parties asserting general claims or sexual abuse claims (collectively, the “Bar Dates”); (b) approve the proposed proof of claim forms for general claims, government claims and sexual abuse claims; (c) approve the form and manner of the proposed notices of the Bar Dates to ensure fair, reasonable, and adequate notice of the Bar Dates to the Archdiocese’s known and unknown creditors; and (d) approve procedures allowing sexual abuse claimants to file confidential proof of claim forms. 7. For purposes of this motion and proposed order, a Sexual Abuse Claim shall mean any Claim (as defined in section 101(5) of the Bankruptcy Code) arising from sexual abuse as that term is defined in Minnesota Statutes § 541.073(1), as well as from molestation, rape, undue familiarity, sexually-related physical, psychological or emotional harm, or contacts or interactions of a sexual nature between a child and an adult, or a non-consenting adult and -2- another adult for which such persons believe that the Archdiocese may be liable. Each person asserting a Sexual Abuse Claim is referred to herein as a “Sexual Abuse Claimant” and collectively as “Sexual Abuse Claimants.” BACKGROUND 8. On the Petition Date, the Archdiocese filed for Chapter 11 bankruptcy relief under the Bankruptcy Code. The Archdiocese is continuing in possession of its property and is operating and managing its business, as a debtor in possession. No request has been made for the appointment of a trustee or an examiner. 9. On February 19, 2015, the United States Trustee appointed an Official Committee of Unsecured Creditors (the “Committee”). The Committee is comprised of five persons asserting Sexual Abuse Claims against the Archdiocese. 10. For a description of the Archdiocese and its operations, the Archdiocese respectfully refers the court and the parties in interest to the Affidavit of the Very Reverend Father Charles V. Lachowitzer, Vicar General and Moderator of the Curia (the “First Day Affidavit”) filed on the Petition Date in connection with the Archdiocese’s first-day motions. [ECF No. 22.] Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the First Day Affidavit. 11. This Chapter 11 case was filed in order to reorganize the Archdiocese’s financial affairs pursuant to a plan of reorganization that will fairly and equitably compensate Sexual Abuse Claimants and other creditors while continuing the mission of the Church. Establishing Bar Dates for parties to file claims in this case is critical to allow the Archdiocese to proceed with a reorganization plan and avoid protracted proceedings that could deplete the Archdiocese’s assets available to pay Sexual Abuse Claimants and other creditors. -3- PROPOSED BAR DATES A. The General Bar Date 12. Bankruptcy Rule 3003(c)(3) provides that the court shall fix a time within which proofs of claim must be filed. The Archdiocese requests that the court fix Friday, May 22, 2015 at 4:30 p.m. (prevailing Central Time) as the General Bar Date. 13. The General Bar Date shall be the date by which all persons and entities, excluding Sexual Abuse Claimants and governmental units (as defined in the Bankruptcy Code) holding prepetition claims, must file proofs of claims (each a “General Claim”, and collectively, the “General Claims”). B. The Sexual Abuse Claims Bar Date 14. The Archdiocese requests that the Court fix Monday, August 3, 2015, at 4:30 p.m. (prevailing Central Time) as the Sexual Abuse Claims Bar Date. 15. The Sexual Abuse Claims Bar Date shall be the date by which all Sexual Abuse Claims must be filed. The Archdiocese will undertake extensive efforts, as described below, to publicize the Sexual Abuse Claims Bar Date and to ensure that all potential and presently unknown Sexual Abuse Claimants have a full and adequate opportunity to come forward and submit a proof of claim in this case. C. Government Bar Date 16. Bankruptcy Code Section 502(b)(9) provides, in relevant part, that “a claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for relief or such later time as the [Bankruptcy Rules] may provide . . . .” Accordingly, a proof of claim filed by a governmental unit in this case is deemed timely if it is filed within 180 days after the Petition Date (each a “Government Claim,” and collectively, the “Government Claims”). -4- 17. The Archdiocese therefore requests that Friday, July 17, 2015, at 4:30 p.m. (prevailing Central Time) be confirmed as the Government Bar Date. The Government Bar Date will apply to all governmental units holding prepetition claims against the Archdiocese (whether secured, unsecured priority or unsecured nonpriority). D. Individuals required to file Proofs of Claim 18. The proposed order approving this motion (the “Bar Date Order”) provides that all persons and entities holding prepetition claims, except as set forth in paragraph 19 below, must file proofs of claim on or before the applicable Bar Date, including: (i) Any person or entity whose prepetition claim against the Archdiocese is not listed in the Archdiocese’s schedules [ECF No. 92] or whose prepetition claim is listed in the schedules but is listed as disputed, contingent or unliquidated, and desires to participate in this Chapter 11 case or share in any distributions in this Chapter 11 case. (ii) Any person or entity that believes that its prepetition claim is improperly classified in the schedules or is listed in an incorrect amount and desires to have its claim allowed in a classification or amount other than that identified in the schedules. (iii) Any person who believes that he or she has or may have a claim for sexual abuse for which the person believes the Archdiocese may be liable. 19. Pursuant to the proposed Bar Date Order only, the following persons or entities are not required to file a proof of claim on or before the applicable Bar Date: (i) Any person or entity that has already properly filed a proof of claim against the Archdiocese with the Clerk of Court for the United States Bankruptcy Court for the District of Minnesota; (ii) Any person or entity: (a) whose claim is listed in the schedules or any amendments; and (b) whose claims is not described therein as “disputed,” “contingent,” or “unliquidated;” and (c) who does not dispute the amount or classification of its claim as set forth in the schedules; (iii) Any person or entity, including professionals retained by the Archdiocese or the Committee, who asserts an administrative expense claim against the Archdiocese pursuant to Section 503(b) and 507(a)(2) of the Bankruptcy Code; -5- (iv) Any person or entity whose claim against the Archdiocese has been allowed by an order of the Court entered on or before the applicable Bar Date; and (v) Any person or entity whose claim has previously been paid in full. PROPOSED PROOF OF CLAIM FORMS A. Non-Tort Proof of Claim Form 20. With respect to prepetition creditors asserting General Claims or Government Claims against the Archdiocese’s estate, the Archdiocese seeks approval of the proof of claim form attached as Exhibit A, which substantially follows the Official Form B10 (the “Non-Tort Proof of Claim Form”). The proposed Non-Tort Proof of Claim Form deviates slightly from the Official Form B10 in that it: (i) expressly identifies the General Bar Date and Government Bar Date; (ii) includes a notation indicating that it should not be utilized in connection with the assertion of a Sexual Abuse Claim against the estate; and for clarity (iii) expressly defines “governmental units” and “non-governmental entities.” 21. The proposed Bar Date Order provides that each Non-Tort Proof of Claim Form filed must: (i) be written in English; (ii) be denominated in lawful currency of the United States as of the Petition Date; (iii) have attached copies of any writings upon which the claim is based in accordance with Bankruptcy Rules 3001(c) and 3001(d) including, for secured claims, evidence that the security interest has been perfected; and (iv) be originally executed and mailed or delivered to the Clerk of the United States Bankruptcy Court for the District of Minnesota at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415, or be filed through ECF in accordance with this court’s rules on electronic filing of claims. The proposed Bar Date Order further provides that Non-Tort Proof of Claim Forms must be mailed, delivered or filed through ECF; Proofs of Claim sent by facsimile, telecopy, or e-mail will not be accepted. -6- B. Sexual Abuse Proof of Claim Form 22. The Archdiocese submits that under the circumstances of this case and considering the unique aspects of a Sexual Abuse Claim, a modified proof of claim form similar to those utilized by many other dioceses and religious order debtors should be used by Sexual Abuse Claimants. In addition to the use of the modified proof of claim form for purposes of claim administration, the Archdiocese and its insurance carriers need detailed information in order to evaluate the claims in the early mediation ordered by the Court. The modified proof of claim form may be the only information available at the time of such negotiations. To that end, the Archdiocese has been working with its carriers and the Committee to design a “Sexual Abuse Proof of Claim Form” that is useful in evaluating any Sexual Abuse Claims at all stages of this proceeding while preserving and honoring the privacy of Sexual Abuse Claimants. 23. The parties have agreed on the Sexual Abuse Proof of Claim Form with the exception of a small dispute as to question eight on page eight of the form. The Archdiocese proposes the attached Exhibit B as the Sexual Abuse Proof of Claim Form, which is the form preferred by many of the Archdiocese’s insurance carriers. 24. The proposed Bar Date Order provides that each Sexual Abuse Proof of Claim Form shall be filed pursuant to, and in accordance with, the confidentiality procedures set forth below in paragraphs 37 to 40. 25. As detailed in the attached memorandum of law, the proposed Sexual Abuse Proof of Claim Form is appropriate under the circumstances. The court may authorize the modification of Official Bankruptcy Form B10, and comparable forms for the assertion of claims arising out of sexual abuse have been approved in cases similar to this one. -7- NOTICE PROCEDURES A. Proposed Notice of the General and Government Bar Dates 26. As soon as reasonably practicable after the entry of the Bar Date Order, the Clerk of Court shall serve by United States mail, first-class postage prepaid: (i) a notice of the General Bar Date and the Government Bar Date, substantially in the form attached as Exhibit C and incorporated herein by reference (the “Non-Tort Bar Date Notice”); and (ii) a Non-Tort Proof of Claim Form (together with the Non-Tort Bar Date Notice, the “Non-Tort Bar Date Package”) upon: (a) the Office of the United States Trustee for the District of Minnesota; (b) counsel to the Committee; (c) all persons and entities that have filed a notice of appearance in this Chapter 11 case; (d) all persons or entities listed as creditors in the Archdiocese’s schedules [ECF No. 92]; (e) all parties to executory contracts and unexpired leases of the Archdiocese; (f) all persons and entities that have previously filed proofs of claim in this Chapter 11 case; (g) all persons and entities identified in the master mailing matrix on file in this case; (h) any other identified entities or their counsel, including governmental units, known to the Archdiocese as entities who may have claims against the Archdiocese or its estate; and (i) such additional persons and entities as deemed appropriate. 27. The Non-Tort Bar Date Package gives potential claimants a significantly greater notice period than the 21 day period required by Bankruptcy Rule 2002(a)(7). B. Proposed Notice of the Sexual Abuse Claims Bar Date 28. Within five business days after the entry of the Bar Date Order, the Archdiocese shall serve by United States mail, first-class postage prepaid: (i) a notice of the Sexual Abuse Claims Bar Date substantially in the form attached as Exhibit D and incorporated herein by reference (the “Sexual Abuse Claims Bar Date Notice”); (ii) a Sexual Abuse Proof of Claim Form; and (iii) the Bar Date Order (together with the Sexual Abuse Bar Date Notice and the -8- Sexual Abuse Proof of Claim, the “Sexual Abuse Claims Bar Date Package”) on known Sexual Abuse Claimants who have: (i) Filed pending lawsuits against the Archdiocese alleging that they were sexually abused by clergy previously assigned to the Archdiocese; (ii) Provided to the Archdiocese under Minn. Stat. § 549.09 a written notice of claim of sexual abuse by clergy previously assigned to the Archdiocese; (iii) Contacted the Archdiocese to claim that they were sexually abused as a minor by clergy previously assigned to the Archdiocese; (iv) Are otherwise known to the Archdiocese to be a Sexual Abuse Claimant through reasonably-ascertainable records. 29. Service of the Sexual Abuse Claims Bar Date Package on Sexual Abuse Claimants shall be accomplished through such Sexual Abuse Claimants’ attorneys, if previously identified as counsel for such Sexual Abuse Claimant in connection with a Sexual Abuse Claim, and directly on all other known Sexual Abuse Claimants that have been identified and located by the Archdiocese through reasonably diligent efforts. 30. The Archdiocese’s reasonably diligent efforts to ascertain the identity of Sexual Abuse Claimants included a review of current and historical clergy files focused on identifying any alleged instances of child sexual abuse by clergy who held assignments in the Archdiocese and a separate review of files maintained by the Archdiocese’s victim advocacy coordinator. Where relevant Archdiocesan records of the victim advocacy coordinator revealed incomplete information, the Archdiocese made reasonable efforts to ascertain a Sexual Abuse Claimant’s identity through public-record searches. 31. The Sexual Abuse Claims Bar Date Package gives Sexual Abuse Claimants a significantly greater notice period than required by Bankruptcy Rule 2002(a)(7). C. Proposed Publication Protocol 32. The Archdiocese has determined that it would be in the best interest of its estate and all parties in interest to give notice by publication pursuant to Bankruptcy Rule 2002(l), of -9- the Sexual Abuse Claims Bar Date so that unknown Sexual Abuse Claimants will be notified of the Sexual Abuse Claims Bar Date and the requirement to file a Sexual Abuse Proof of Claim Form on account of such sexual abuse. Additionally, the Archdiocese will concomitantly give notice by publication of the General and Government Bar Dates so that unknown potential claimants of the Archdiocese to whom no other notice was sent will be notified of the General and Government Bar Dates and the requirement to file a Non-Tort Proof of Claim Form. Accordingly, the Archdiocese proposes to provide notice of all three Bar Dates by causing a copy of the notice attached as Exhibit E (the “Publication Notice”) to be published as follows in national publications as well as community/local publications in and around the Region. (i) Publication twice (in English) in each of the following publications, with the first publication to occur within two weeks of the service of the Bar Date Packages and the second publication to occur no later than thirty (30) days prior to the expiration of the Bar Dates: • National Publication: USA Today – National Edition • Catholic Publications (and their respective websites): o The National Catholic Reporter (National) o The National Catholic Register (National) o The Catholic Spirit (Regional) • Local Publications (and their respective websites): o o o o o o o o o o o o o o o Minneapolis Star Tribune St. Paul Pioneer Press The Minnesota Daily Finance and Commerce Duluth News Tribune Post-Bulletin (Rochester) St. Cloud Times Brainerd Dispatch Grand Forks Herald Winona Daily News Daily Journal (Fergus Falls) Sentinel (Fairmont) The Bemidji Pioneer Crookston Daily News The Free Press (Mankato) -10- o Faribault Daily News o The Journal (New Ulm) o La Prensa de Minnesota (Spanish Language) o Hmong Times (ii) In addition to the Publication Notice, the Archdiocese will send copies of the Sexual Abuse Claims Bar Date Notice to the publications listed above and to: o o o o o o o o 33. The Associated Press WCCO-AM Minneapolis Public Radio KARE - TV KMSP - TV KSPR - TV WCCO - TV Each diocese in Minnesota In addition, the Archdiocese shall provide further notice of the Sexual Abuse Claims Bar Date by taking the following measures: (i) Within 3 business days of the entry of the Bar Date Order, the Archdiocese will post the component parts of the Sexual Abuse Claims Bar Date Package and the Non-Tort Bar Date Package on the following public website: http://www.archspm.org/. (ii) Within 3 business days of the entry of the Bar Date Order, the Archdiocese will provide a copy of the Publication Notice and component parts of the Sexual Abuse Claims Bar Date Package to the Survivors Network of the Abused by Priests and request that it post the same on its website at www.snapnetwork.org. (iii) Within 3 business days of the entry of the Bar Date Order, the Archdiocese will provide a copy of the Publication Notice and component parts of the Sexual Abuse Claims Bar Date Package to Jeff Anderson and Associates P.A. and the Noaker Law Firm LLC and request that they post the same on their respective websites at www.andersonadvocates.com and http://noakerlaw.com/. (iv) The Archdiocese will maintain a toll free number which may be used by Sexual Abuse Claimants to ask questions or obtain copies of the Sexual Abuse Claim Bar Date Package or parts thereof. (v) Within two weeks of the service of the Sexual Abuse Claims Bar Date Package, the Archdiocese will provide a copy of the Publication Notice and the Sexual Abuse Claims Bar Date Notice to the following offices/entities and request that each recipient publicly post such notice until the expiration of the Bar -11- Dates: (a) the Minnesota Attorney General; (b) The district attorney, county court administrator, and sheriff’s department for each of the 12 counties comprising the Region; (c) the Minnesota Department of Health’s three locations in the Region; (d) each hospital in the Region; and (e) each of the 187 parishes within the Region. (vi) The Archdiocese will send a letter to each Parish and Catholic High School in the Region requesting that such Parish or Catholic High School display the Publication Notice and Sexual Abuse Claims Bar Date Notice in a prominent location within the church or school. The letter will also request that the notices be published once a month in the Parishes’ weekly bulletins until the Sexual Abuse Claims Bar Date. The letter will also request that each pastor, canonical administrator, or parochial vicar remind parishioners of the availability of information concerning the bar date. The letter will also request that Parishes disseminate the Publication Notice and Sexual Abuse Claims Bar Date Notice by email to their respective distribution lists. Finally, the letter will request each Catholic High School at which a clergy member against whom a substantiated claim of sexual abuse has been made had worked to draft a letter to alumni providing notice of the case and bar date. 34. Each request described in Paragraph 33 (v) and (vi) above shall be on the Archdiocese’s letterhead and signed by an officer of the Archdiocese. The request shall include a space at the bottom for the recipient to indicate whether it will comply with the request and a stamped self-addressed return envelope. The Archdiocese will report on compliance to the Committee. 35. In the Archdiocese’s judgment, the publication protocol described above (the “Publication Protocol”) is likely to reach the widest possible audience of creditors who may not otherwise have notice of the Archdiocese’s Chapter 11 case and will protect the confidentiality of the Sexual Abuse Claimants as further detailed below. 36. Additionally, the Bar Date Notices and the Publication Notice will, together: (i) set forth the respective Bar Dates: (ii) advise creditors under what circumstances they may file a proof of claim in respect of a prepetition claim (which includes Sexual Abuse Claims); (iii) alert creditors to the consequences of failing to timely file a proof of claim, as set forth in Bankruptcy Rule 3003(c)(2) or an order of this Court, as applicable; (iv) set forth the address to which proofs -12- of claim must be sent for filing; and (v) notify creditors that: (a) proofs of claim must be filed with original signatures; and (b) facsimile or e-mail filings of proofs of claim are not acceptable and are not valid for any purpose. CONFIDENTIALITY PROCEDURES 37. Due to the nature of the information requested in the Sexual Abuse Proof of Claim Form, and after consultation with the clerk’s office prior to the filing of this motion, the Archdiocese seeks approval of the following confidentiality procedures: (i) Sexual Abuse Claimants are directed to mail or deliver the original and one copy of each Sexual Abuse Proof of Claim Form to the Clerk of the United States Bankruptcy Court for the District of Minnesota, Attention: Barbie Montez at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415. (ii) Sexual Abuse Proof of Claim Forms submitted by Sexual Abuse Claimants will not be available to the general public unless a Sexual Abuse Claimant affirmatively indicates his or her desire in Part 1 of the Sexual Abuse Proof of Claim Form that the Sexual Abuse Proof of Claim Form be made public. This confidentiality procedure is for the benefit of the Sexual Abuse Claimants. Accordingly, Sexual Abuse Claimants may elect to make any of the information contained in a Sexual Abuse Proof of Claim Form public, even if they elected to file the Sexual Abuse Proof of Claim Form confidentiality. (iii) Sexual Abuse Proof of Claim Forms submitted by Sexual Abuse Claimants shall be held and treated as confidential by the Archdiocese and its counsel and upon request to the parties listed below (the “Permitted Parties”), subject to each Permitted Party executing and returning to the Archdiocese’s counsel a confidentiality agreement (the “Confidentiality Agreement”), and to such other persons as the Court determines; provided, however, that all parties with access to the Sexual Abuse Proof of Claim Forms shall agree to keep the information provided in a Sexual Abuse Proof of Claim Form confidential (unless the Sexual Abuse Claimant elects otherwise in Part 1 of the Sexual Abuse Proof of Claim Form).1 (iv) The Permitted Parties include: (a) counsel for the Archdiocese; (b) officers and employers of the Archdiocese who are necessary to assist the 1 With the exception of the parties identified in paragraph (iv), access to the Sexual Abuse Proof of Claim Forms extends only to the natural person who executes the Confidentiality Agreement. A separate Confidential Agreement must be signed by each natural person who seeks access to the records on behalf of a Permitted Party. -13- Archdiocese and its counsel address issues with respect to Sexual Abuse Claims; (c) counsel for the Committee; (d) insurance companies or their successors, including any authorized claim administrators of such insurance companies, that issued or allegedly issued polices to the Archdiocese and their reinsurers and attorneys; (e) any future claims representative appointed by the Court in this Chapter 11 case; (f) any mediator, special arbitrator or claims reviewer appointed by the Court, including Retired Judge Arthur J. Boylan, to review and resolve the Sexual Abuse Claims; (g) any trustee appointed to administer payments to Sexual Abuse Claimants; (h) authorized representatives of a department of corrections with respect to a Sexual Abuse Claim by a Sexual Abuse Claimant who is incarcerated but only to the extent such disclosure is authorized under applicable non-bankruptcy law; (i) members of the Committee and their personal counsel (but only after the Sexual Abuse Proof of Claim Form has been redacted to remove the Sexual Abuse Claimant’s name, address and any other information identified in Part 2(A) of the Sexual Abuse Proof of Claim Form and the signature block); (j) law enforcement in the city or county where the Sexual Abuse Claim arose; (k) auditors of the United States Conference of Catholic Bishops charged with preparing annual audits of Archdiocesan compliance with the Charter for the Protection of Children and Young People; and (l) such other persons as the Court determines should have the information in order to evaluate Sexual Abuse Claims only upon a motion by the Archdiocese or the Committee.2 38. Permitted Parties and their attorneys shall be authorized to review Proofs of Claim upon execution of a Confidentiality Agreement agreed upon by the Archdiocese and the Committee or pursuant to further Order of the Court. 39. The proposed Bar Date Order provides that each Sexual Abuse Proof of Claim Form filed must: (i) be written in English; and (ii) be originally executed and mailed or delivered to the U.S. Bankruptcy Court Clerk, Attention Barbie Montez at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415 on or before the Sexual Abuse Claims Bar Date. The Clerk of the Court will provide copies of the Sexual Abuse Proof of Claim Forms to counsel for the Archdiocese on a weekly basis. The proposed Bar Date Order 2 To streamline the process for court approval of additional Permitted Parties, the Archdiocese proposes that the Court approve any additional parties as Permitted Parties upon fourteen (14) days’ notice of consent by the Archdiocese and the Committee of designation of a party as a Permitted Party. -14- further provides that Sexual Abuse Proof of Claim Forms must be mailed or delivered; proofs of claim sent by facsimile, telecopy, or email will not be accepted. 40. The Archdiocese submits that the confidentiality procedures set forth above are necessary and appropriate under the circumstances of this Chapter 11 case. The Archdiocese is sensitive to the issues that may arise from a Sexual Abuse Claimant asserting a claim against the Archdiocese relating to clergy sexual abuse. Through the confidentiality procedures and the Sexual Abuse Proof of Claim Form, the Archdiocese seeks merely to obtain the information that it needs in order to evaluate Sexual Abuse Claims, while at the same time protecting Sexual Abuse Claimants’ privacy and providing an accessible, user-friendly form that will not discourage Sexual Abuse Claimants from coming forward to assert their claims. FACTS SUPPORTING MOTION 41. The Archdiocese expects that the majority of claims filed in this case will be in the nature of Sexual Abuse Claims. 42. Beginning in the fall of 2013, media reports began to surface regarding allegations that Sexual Abuse Claims against Archdiocesan clergy members had not been properly addressed. Also, earlier in 2013, the Minnesota legislature enacted the Minnesota Child Victims Act, which extended the statutory limitations period for otherwise time-barred civil damage claims against institutions that allegedly failed to prevent child sexual abuse. 43. In response, and beginning more than a year preceding the Petition Date, the Archdiocese undertook a comprehensive review of thousands of clergy files in addition to public record searches to ascertain, among other things, the identities of potential Sexual Abuse Claimants and clergy members who have been accused of sexually abusing minors in the past. The Archdiocese submits that this extensive file review, coupled with the additional efforts -15- outlined below, constitutes reasonably diligent efforts to identify “reasonably ascertainable” Sexual Abuse Claimants for purposes of providing actual notice to known creditors. 44. Specifically, in December 2013, the Archdiocese hired Kinsale Management Consulting (“Kinsale”), a leading national expert, to review thousands of clergy files. Kinsale ultimately reviewed the personnel files of all clergy assigned to, or ministering in, the Archdiocese at any time from 1970 to the present, regardless of whether they were still in public ministry. All told, Kinsale reviewed a total of 3,333 clergy files before completing its work in April 2014. The purpose of the review was to identify Sexual Abuse Claimants and determine whether there were additional potential cases of sexual abuse or other alleged misconduct against clergy members that required investigation by law enforcement, public disclosure or other action by the Archdiocese. 45. Throughout this comprehensive review, the Archdiocese has issued news releases, participated in media interviews, published stories and editorials in The Catholic Spirit, sent information to parishes, other dioceses and other Catholic institutions, and publicly disclosed on its website the identities of clergy members against whom sexual abuse accusations have been asserted in the past. 46. In connection with Kinsale’s work, the Archdiocese committed to making, and continues to make, prudent and ongoing public disclosures of the names, assignment histories, and current status of clergy members accused of sexual abuse of minors. This policy was implemented to, among other things, call public attention to reports of sexual abuse and assist other Sexual Abuse Claimants in finding the strength and resolve to come forward. 47. This commitment, and the resulting disclosures were first announced and disseminated in the December 5, 2013 edition of The Catholic Spirit and on the Archdiocese’s website. See http://thecatholicspirit.com/digital-edition/digital-edition-december-5-2013/.; see -16- also http://safe-environment.archspm.org/news-events/disclosure-moves-us-forward-on-a-path- toward-healing/. The Catholic Spirit is published bi-weekly and is circulated to approximately 71,212 residents in and around the Region. 48. To date, the Archdiocese has publicly disclosed sixty-five priests and three religious brothers against whom claims of sexual abuse of a minor have been asserted in the past.3 Of these men, fifty-nine have claims against them of sexual abuse of a minor within the Region. The remaining nine men are the subject of claims of abuse of a minor outside the Region but traveled here or lived here without faculties or as a lay person. For each individual against whom such a claim has been made, including priests and brothers from other dioceses and religious orders, the Archdiocese has disclosed certain background and biographical information, including: (i) his year of birth and year of ordination; (ii) whether he is alive or deceased; (iii) if deceased, the year of his death; (iv) his prior assignments; (v) the date of his permanent removal from ministry; and (vi) for those who are alive, their present status with the Church (i.e. retired, prohibited from ministry or dismissed from the clerical state) and the city and state in which they reside. 49. These disclosures are ongoing. As claims falling with the Archdiocese’s disclosure policy are made known to the Archdiocese, whether from the review of clergy files by outside experts or otherwise, the Archdiocese adds the name of the clergy member to the disclosure section of its website, publishes the information in The Catholic Spirit, and disseminates the information to parishes, other dioceses and appropriate Catholic institutions. It further shares this information with the public by issuing and posting a news release. 3 Most of these claimed incidents of sexual abuse of a minor occurred between the mid-1950s and the mid-1980s, and many of these men have been previously identified in media reports. All of these men have been permanently removed from ministry, and most of them have been out of ministry for a decade or more. At least 30 of these men are deceased. -17- 50. available The Archdiocese’s news releases and disclosures of accused clergy members are to the public on a specifically established Archdiocesan website – SafeCatholicsSPM.org. A link to that website’s disclosure page can be found at: http://safeenvironment.archspm.org/accountability/clergy-disclosures/. Each disclosure is also published in The Catholic Spirit, both in print and electronically at: http://thecatholicspirit.com. Since the implementation of its disclosure policy, the Archdiocese has made five separate public disclosures in December 2013, February 2014, May 2014, October 2014 and February 2015. Id. 51. Prior to each public disclosure of accused clergy members, the Archdiocese also disseminates advanced-notification letters to parishes, orders, and other dioceses where the accused clergy members held assignments to, among other things, alert these communities to the existence of the claims, assist Church leaders in communicating these accusations to parishioners, and encourage other claimants in their communities to come forward for assistance and healing. This practice was employed in each of the five public disclosures identified above. 52. Also in connection with the Archdiocese’s public disclosure of clergy accused of sexually abusing minors, Jeff Anderson & Associates P.A. (“JAA”), counsel for the majority of anticipated Sexual Abuse Claimants, has likewise held news conferences and publicized information regarding these men on its website. In many cases, these public disclosures include the Archdiocese’s entire clergy file on the accused, redacted only to remove the personal identifying information of claimants, third parties, and other protected information such a psychological reports. See, e.g., http://www.andersonadvocates.com/Minnesota-Document- Release.aspx. As detailed below, the Archdiocese’s public disclosures regarding accused clergy and JAA’s further release of information and files have been widely followed by local, and in some cases, national media, over the past 13 months. -18- 53. In connection with a settlement agreement in a civil litigation captioned Doe 1 v. Archdiocese of St. Paul and Minneapolis and Diocese of Winona, Court File No. 62-CV-13-4075 (Ramsey County District Court), the Archdiocese and JAA worked hand-in-hand to develop unprecedented child protection protocols and procedures (“Child Protection Protocols”). Among other key measures provided in the 17-part Child Protection Protocols, the Archdiocese committed to the continued public disclosure of claims of sexual abuse by clergy as well as those clergy deemed unsuitable for ministry under circumstances that arise, in whole or in part, out of accusations or risk of sexual abuse of a minor. 54. At an October 13, 2014 news conference, JAA attorneys and church leaders stood side by side in announcing the Child Protection Protocols to the public. The news conference and the Child Protection Protocols have been widely disseminated in print, broadcast and webbased media in the Region.4 55. Since this public announcement, the Archdiocese has made additional public disclosures of accused clergy in accordance with the Child Protection Protocols. On October 22, 2014, and again on February 11, 2015, these new disclosures were published on the Archdiocese’s website and widely disseminated in local and regional print, broadcast and webbased media, as well as in print and electronically in The Catholic Spirit. See, e.g., http://thecatholicspirit.com/that-they-may-all-be-one/working-together-right-wrongs-whats-best/; see also http://www.archspm.org/ archspm_news/statement-regarding-disclosure-additionalnames-2/. 4 St. Paul Pioneer Press columnist Ruben Rosario called the scene in a historic courtroom at Landmark Center an “unprecedented public reconciliation.” See http://www.twincities.com/opinion/ci_26727537/st-paul-archdiocese-toward-trust. The Minneapolis Star Tribune likewise heralded the “landmark” Child Protection Protocols as “historic” and observed that it “brought church officials and sex abuse victims together for the first time on a public platform.” See http://www.startribune.com/local/279015421. html?page=2&c=y. Jeff Anderson called the agreement “monumental.” -19- 56. On February 11, 2015, the Archdiocese and JAA also joined in the posting of information about all notices of claim served upon the Archdiocese in connection with this Chapter 11 case. http://www.archspm.org/archspm_news/statement-regarding-notices-claims/; see also http://www.andersonadvocates.com/Posts/News-or-Event/1952/17-Names-of-ClergyAccused-of-Sexual-Abuse-or-Misconduct-with-Minors-Publicly-Released-For-the-First-TimeToday.aspx. 57. In addition to the broad public disclosures and outreach efforts made by the Archdiocese and counsel for Sexual Abuse Claimants over the past 13 months, Sexual Abuse Claims asserted against the Archdiocese have been prominently covered in the secular media in the Region since September 2013. Leading local news and radio stations including Kare 11, WCCO News, KSTP, and MPR have widely covered the story for more than a year. MPR, for its part, has published approximately 200 stories relating to the Archdiocese and Sexual Abuse Claims since September 2013. The Star Tribune and the Pioneer Press, have also extensively followed Sexual Abuse Claims against the Archdiocese. An MPR news investigation has committed to providing up-to-date information regarding issues relating to the Archdiocese and clergy sexual abuse on a separate section of its website at http://minnesota.publicradio.org/collections/catholic-church/. 58. The commencement of this case was likewise broadly reported in media outlets throughout the Region and nationally, including in USA Today, the New York Times, the LA Times and NPR, among others. See, e.g., http://www.usatoday.com/story/news/2015/01/16/stpaul-minneapolis-catholic-diocese-bankruptcy/21859809/ (USA Today, online edition); http://www.nytimes.com/aponline/2015/01/16/us/ap-us-church-abuse-minnesota.html?_r=0 (New York Times, online edition); http://touch.latimes.com/#section/-1/article/p2p-82553219 (LA Times, online edition); -20- http://www.npr.org/blogs/thetwo- way/2015/01/16/377732977/archdiocese-of-st-paul-minneapolis-files-chapter-11 (NPR, online edition); 59. There has also been widespread notice to Sexual Abuse Claimants through print, broadcast and web-based media regarding their ability to brings claims or lawsuits against the Archdiocese as a result of the significant outreach made prepetition by attorneys representing Sexual Abuse Claimants. This process of reaching out to Sexual Abuse Claimants began in earnest on or around May 25, 2013, with the enactment of the Minnesota Child Victims Act, and continues in full force today. reaching out to Examples of JAA’s online commercials and advertisements Sexual Abuse Claimants can be found at http://www.andersonadvocates.com/Child-Victims-Act.aspx. 60. In addition to providing notice of the Chapter 11 case filing on all represented Sexual Abuse Claimants, on January 29, 2015, the Archdiocese also served notice of the case filing on an additional fifty-seven persons who, based on Archdiocesan records, may have Sexual Abuse Claims against the Archdiocese and who, to the Archdiocese’s knowledge, are not presently represented by counsel (“Unrepresented Potential Sexual Abuse Claimants”). See ECF No. 94. The Archdiocese identified the Unrepresented Potential Sexual Abuse Claimants for purposes of providing them notice of this Chapter 11 case through reasonable diligence, including an examination of its historical books and records and the results of the Kinsale file review. 61. The Archdiocese believes that the extensive prepetition notifications and publicity combined with the notice provisions proposed in this verified motion are more than sufficient to provide fair and adequate notice to Sexual Abuse Claimants of their rights to assert Sexual Abuse Claims by the proposed Sexual Abuse Claims Bar Date. For more than thirteen months, the Archdiocese has actively investigated its files to determine the identities of Sexual Abuse -21- Claimants and to publicly disclose accused clergy members through secular media, Catholic media, permanent website postings and information shared with parishes. Any Sexual Abuse Claimants identified through the Archdiocese’s efforts have been provided actual notice of this case. Any other Sexual Abuse Claimants not identified by the Archdiocese have likely been advised of their rights to pursue claims against the Archdiocese through the intense publicity that has permeated print, broadcast and web-based media in and beyond the Region since the enactment of the Minnesota Child Victims Act. SERVICE OF MOTION Notice of this motion has been given to the parties identified on, and in the manner set forth in, the separately-filed certificate of service. This includes the parties specified in Local Rule 9013-3. REQUEST FOR RELIEF WHEREFORE, the Archdiocese requests entry of an Order: (a) establishing bar dates for Sexual Abuse Claims, General Claims and Government Claims as set forth in this verified motion; (b) approving the Sexual Abuse Proof of Claim Form and the NonTort Proof of Claim Form attached to this verified motion as Exhibit A and Exhibit B; (c) approving the Sexual Abuse Claims Bar Date Notice and the NonTort Claims Bar Date Notice attached to this verified motion as Exhibit C and Exhibit D; (d) approving the Publication Notice attached to this verified motion as Exhibit E; (e) approving mailing and posting of the Bar Date Notices and Publication Notice in the manner set forth in this verified motion; (f) approving procedures to allow Sexual Abuse Claimants to file confidential proof of claim forms; and (g) granting such other relief as the Court deems proper. -22- Dated: April 1, 2015 Respectfully submitted, e/ Richard D. Anderson BRIGGS & MORGAN, P.A. Richard D. Anderson (#2306) [email protected] Charles B. Rogers (#0130588) [email protected] Benjamin E. Gurstelle (#389968) [email protected] 2200 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 977-8400 Facsimile: (612) 977-8650 Attorneys for The Archdiocese of Saint Paul and Minneapolis -23- Exhibit A – Non-Tort Proof of Claim Form 6906877v2 B10 (Official Form 10) (04/13) 1 UNITED STATES BANKRUPTCY COURT DISTRICT OF NON-TORT PROOF OF CLAIM Name of Debtor: Case Number: NOTE: Do not use this form to make a claim for an administrative expense that arises after the bankruptcy filing. You may file a request for payment of an administrative expense according to 11 U.S.C. § 503. Name of Creditor (the person or other entity to whom the debtor owes money or property): COURT USE ONLY Check this box if this claim amends a previously filed claim. Name and address where notices should be sent: Court Claim Number: (If known) Telephone number: email: Filed on: Name and address where payment should be sent (if different from above): Telephone number: Check this box if you are aware that anyone else has filed a proof of claim relating to this claim. Attach copy of statement giving particulars. email: 1. Amount of Claim as of Date Case Filed: $ If all or part of the claim is secured, complete item 4. If all or part of the claim is entitled to priority, complete item 5. Check this box if the claim includes interest or other charges in addition to the principal amount of the claim. Attach a statement that itemizes interest or charges. 2. Basis for Claim: (See instruction #2) 3. Last four digits of any number by which creditor identifies debtor: 3a. Debtor may have scheduled account as: 3b. Uniform Claim Identifier (optional): (See instruction #3a) (See instruction #3b) Amount of arrearage and other charges, as of the time case was filed, included in secured claim, if any: 4. Secured Claim (See instruction #4) Check the appropriate box if the claim is secured by a lien on property or a right of setoff, attach required redacted documents, and provide the requested information. Nature of property or right of setoff: Describe: Real Estate Value of Property: $ Annual Interest Rate (when case was filed) % Fixed or Variable Motor Vehicle Other $ Basis for perfection: Amount of Secured Claim: $ Amount Unsecured: $ 5. Amount of Claim Entitled to Priority under 11 U.S.C. § 507 (a). If any part of the claim falls into one of the following categories, check the box specifying the priority and state the amount. Domestic support obligations under 11 U.S.C. § 507 (a)(1)(A) or (a)(1)(B). Up to $2,775* of deposits toward purchase, lease, or rental of property or services for personal, family, or household use – 11 U.S.C. § 507 (a)(7). Wages, salaries, or commissions (up to $12,475*) earned within 180 days before the case was filed or the debtor's business ceased, whichever is earlier – 11 U.S.C. § 507 (a)(4). Contributions to an employee benefit plan – 11 U.S.C. § 507 (a)(5). Taxes or penalties owed to governmental units – 11 U.S.C. § 507 (a)(8). Other – Specify applicable paragraph of 11 U.S.C. § 507 (a)( Amount entitled to priority: $ ). *Amounts are subject to adjustment on 4/01/16 and every 3 years thereafter with respect to cases commenced on or after the date of adjustment. 6. Credits. The amount of all payments on this claim has been credited for the purpose of making this proof of claim. (See instruction #6) 6906877v2 B10 (Official Form 10) (04/13) 2 7. Documents: Attached are redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, security agreements, or, in the case of a claim based on an open-end or revolving consumer credit agreement, a statement providing the information required by FRBP 3001(c)(3)(A). If the claim is secured, box 4 has been completed, and redacted copies of documents providing evidence of perfection of a security interest are attached. If the claim is secured by the debtor's principal residence, the Mortgage Proof of Claim Attachment is being filed with this claim. (See instruction #7, and the definition of “redacted”.) DO NOT SEND ORIGINAL DOCUMENTS. ATTACHED DOCUMENTS MAY BE DESTROYED AFTER SCANNING. If the documents are not available, please explain: 8. Signature: (See instruction #8) Check the appropriate box. I am the creditor. I am the creditor's authorized agent. I am the trustee, or the debtor, or their authorized agent. (See Bankruptcy Rule 3004.) I am a guarantor, surety, indorser, or other codebtor. (See Bankruptcy Rule 3005.) I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information, and reasonable belief. Print Name: Title: Company: Address and telephone number (if different from notice address above): (Signature) (Date) Telephone number: email: Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. §§ 152 and 3571. INSTRUCTIONS FOR PROOF OF CLAIM FORM The instructions and definitions below are general explanations of the law. In certain circumstances, such as bankruptcy cases not filed voluntarily by the debtor, exceptions to these general rules may apply. The Bar Date in this Chapter 11 case is May 22, 2015 at 4:30 p.m. (prevailing Central Time) for all Claims by Non-Governmental Entities and July 17, 2015 at 4:30 p.m. (prevailing Central Time) for all Claims by Governmental Units. NOTE: THIS PROOF OF CLAIM FORM IS NOT TO BE USED IN CONNECTION WITH CLAIMS OF SEXUAL ABUSE. Please send your original, completed Claim Form by mail or hand/overnight courier to the Clerk of the United States Bankruptcy Court for the District of Minnesota at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415. Items to be completed in Proof of Claim form 6906877v2 B10 (Official Form 10) (04/13) Court, Name of Debtor, and Case Number: Fill in the federal judicial district in which the bankruptcy case was filed (for example, Central District of California), the debtor’s full name, and the case number. If the creditor received a notice of the case from the bankruptcy court, all of this information is at the top of the notice. Creditor’s Name and Address: Fill in the name of the person or entity asserting a claim and the name and address of the person who should receive notices issued during the bankruptcy case. A separate space is provided for the payment address if it differs from the notice address. The creditor has a continuing obligation to keep the court informed of its current address. See Federal Rule of Bankruptcy Procedure (FRBP) 2002(g). 1. Amount of Claim as of Date Case Filed: State the total amount owed to the creditor on the date of the bankruptcy filing. Follow the instructions concerning whether to complete items 4 and 5. Check the box if interest or other charges are included in the claim. 2. Basis for Claim: State the type of debt or how it was incurred. Examples include goods sold, money loaned, services performed, personal injury/wrongful death, car loan, mortgage note, and credit card. If the claim is based on delivering health care goods or services, limit the disclosure of the goods or services so as to avoid embarrassment or the disclosure of confidential health care information. You may be required to provide additional disclosure if an interested party objects to the claim. 3. Last Four Digits of Any Number by Which Creditor Identifies Debtor: State only the last four digits of the debtor’s account or other number used by the creditor to identify the debtor. 3a. Debtor May Have Scheduled Account As: Report a change in the creditor’s name, a transferred claim, or any other information that clarifies a difference between this proof of claim and the claim as scheduled by the debtor. 3b. Uniform Claim Identifier: If you use a uniform claim identifier, you may report it here. A uniform claim identifier is an optional 24-character identifier that certain large creditors use to facilitate electronic payment in chapter 13 cases. 4. Secured Claim: Check whether the claim is fully or partially secured. Skip this section if the 6906877v2 3 claim is entirely unsecured. (See Definitions.) If the claim is secured, check the box for the nature and value of property that secures the claim, attach copies of lien documentation, and state, as of the date of the bankruptcy filing, the annual interest rate (and whether it is fixed or variable), and the amount past due on the claim. 5. Amount of Claim Entitled to Priority Under 11 U.S.C. § 507 (a). If any portion of the claim falls into any category shown, check the appropriate box(es) and state the amount entitled to priority. (See Definitions.) A claim may be partly priority and partly non-priority. For example, in some of the categories, the law limits the amount entitled to priority. 6. Credits: An authorized signature on this proof of claim serves as an acknowledgment that when calculating the amount of the claim, the creditor gave the debtor credit for any payments received toward the debt. 7. Documents: Attach redacted copies of any documents that show the debt exists and a lien secures the debt. You must also attach copies of documents that evidence perfection of any security interest and documents required by FRBP 3001(c) for claims based on an open-end or revolving consumer credit agreement or secured by a security interest in the debtor’s principal residence. You may also attach a summary in addition to the documents themselves. FRBP 3001(c) and (d). If the claim is based on delivering health care goods or services, limit disclosing confidential health care information. Do not send original documents, as attachments may be destroyed after scanning. 8. Date and Signature: The individual completing this proof of claim must sign and date it. FRBP 9011. If the claim is filed electronically, FRBP 5005(a)(2) authorizes courts to establish local rules specifying what constitutes a signature. If you sign this form, you declare under penalty of perjury that the information provided is true and correct to the best of your knowledge, information, and reasonable belief. Your signature is also a certification that the claim meets the requirements of FRBP 9011(b). Whether the claim is filed electronically or in person, if your name is on the signature line, you are responsible for the declaration. Print the name and title, if any, of the creditor or other person authorized to file this claim. State the filer’s address and telephone number if it differs from the address given on the top of the form for purposes of receiving notices. If the claim is filed by an authorized agent, provide both the name of the individual filing the claim and the name of the agent. If the authorized agent is a servicer, identify the corporate servicer as the company. Criminal penalties apply for making a false statement on a proof of claim. _________DEFINITIONS__________ Debtor A debtor is the person, corporation, or other entity that has filed a bankruptcy case. Creditor A creditor is a person, corporation, or other entity to whom debtor owes a debt that was incurred before the date of the bankruptcy filing. See 11 U.S.C. §101 (10). Claim A claim is the creditor's right to receive payment for a debt owed by the debtor on the date of the bankruptcy filing. See 11 U.S.C. §101 (5). A claim may be secured or unsecured. Proof of Claim A proof of claim is a form used by the creditor to indicate the amount of the debt owed by the debtor on the date of the bankruptcy filing. The creditor must file the form with the clerk of the same bankruptcy court in which the bankruptcy case was filed. Secured Claim Under 11 U.S.C. § 506 (a) A secured claim is one backed by a lien on property of the debtor. The claim is secured so long as the creditor has the right to be paid from the property prior to other creditors. The amount of the secured claim cannot exceed the value of the property. Any amount owed to the creditor in excess of the value of the property is an unsecured claim. Examples of liens on property include a mortgage on real estate or a security interest in a car. A lien may be voluntarily granted by a debtor or may be obtained through a court proceeding. In some states, a court judgment is a lien. A claim also may be secured if the creditor owes the debtor money (has a right to setoff). Unsecured Claim An unsecured claim is one that does not meet the requirements of a secured claim. A claim may be partly unsecured if the amount of the claim exceeds the value of the property on which the creditor has a lien. Claim Entitled to Priority Under 11 U.S.C. § 507 (a) Priority claims are certain categories of unsecured claims that are paid from the available money or property in a bankruptcy case before other unsecured claims. Redacted A document has been redacted when the person filing it has masked, edited out, or otherwise deleted, certain information. A creditor must show only the last four digits of any social-security, individual's tax-identification, or financial-account number, only the initials of a minor's name, and only the year of any person's date of birth. If the claim is based on the delivery of health care goods or services, limit the disclosure of the goods or services so as to avoid embarrassment or the disclosure of confidential health care information. Evidence of Perfection Evidence of perfection may include a mortgage, lien, certificate of title, financing statement, or other document showing that the lien has been filed or recorded. Governmental Unit A governmental unit has the meaning given to it in Section 101(27) of the Bankruptcy Code and includes the United States, commonwealths, districts, territories, municipalities, foreign states, or departments, agencies or instrumentalities of the foregoing. Non-Governmental Entity A non-governmental entity means all persons (individuals, partnerships and corporations), estates and trusts that are not Governmental Units. 6906877v2 ______INFORMATION______ Acknowledgment of Filing of Claim To receive acknowledgment of your filing, you may either enclose a stamped self-addressed envelope and a copy of this proof of claim or you may access the court's PACER system (www.pacer.psc.uscourts.gov) for a small fee to view your filed proof of claim. Offers to Purchase a Claim Certain entities are in the business of purchasing claims for an amount less than the face value of the claims. One or more of these entities may contact the creditor and offer to purchase the claim. Some of the written communications from these entities may easily be confused with official court documentation or communications from the debtor. These entities do not represent the bankruptcy court or the debtor. The creditor has no obligation to sell its claim. However, if the creditor decides to sell its claim, any transfer of such claim is subject to FRBP 3001(e), any applicable provisions of the Bankruptcy Code (11 U.S.C. § 101 et seq.), and any applicable orders of the bankruptcy court. Exhibit B – Sexual Abuse Proof of Claim Form UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. Chapter 11 Case ____________________________________________________________________________ SEXUAL ABUSE PROOF OF CLAIM IMPORTANT: THIS FORM MUST BE RECEIVED NO LATER THAN AUGUST 3, 2015 AT 4:30 P.M. CENTRAL TIME Carefully read the instructions included with this SEXUAL ABUSE PROOF OF CLAIM and complete ALL applicable questions. Please print clearly and use blue or black ink. Send the original, and one (1) copy to the U.S. Bankruptcy Court Clerk at the following address: Office of the Clerk of Court, Attention Barbie Montez, U.S. Bankruptcy Court District of Minnesota, 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. THIS PROOF OF CLAIM IS FOR CLAIMANTS OF SEXUAL ABUSE ONLY. YOU MAY WISH TO CONSULT AN ATTORNEY REGARDING THIS MATTER. A sexual abuse claim includes any claim arising from sexual abuse as that term is defined in Minnesota Statutes § 541.073(1), as well as from molestation, rape, undue familiarity, sexually-related physical, psychological or emotional harm, or contacts or interactions of a sexual nature between a child and an adult, or a non-consenting adult and another adult for which such persons believe that the Archdiocese may be liable. TO BE VALID, THIS PROOF OF CLAIM MUST BE SIGNED BY YOU OR YOUR ATTORNEY. IF THE SEXUAL ABUSE CLAIMANT IS DECEASED OR INCAPACITATED, THE FORM MAY BE SIGNED BY THE SEXUAL ABUSE CLAIMANT’S REPRESENTATIVE OR THE ATTORNEY FOR THE ESTATE. IF THE SEXUAL ABUSE CLAIMANT IS A MINOR, THE FORM MAY BE SIGNED BY THE SEXUAL ABUSE CLAIMANT’S PARENT OR LEGAL GUARDIAN, OR THE SEXUAL ABUSE CLAIMANT’S ATTORNEY. IF THE SEXUAL ABUSE CLAIMANT DIES AFTER THE SUBMISSION OF THIS FORM, BUT BEFORE THE CLAIM IS RESOLVED, NOTIFICATION OF THE DEATH MUST BE PROVIDED TO THE COURT AT THE ADDRESS ABOVE. Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to five years, or both. 18 U.S.C. §§ 152 and 3571. UNLESS YOU INDICATE OTHERWISE IN PART 1 BELOW, YOUR IDENTITY WILL BE KEPT STRICTLY CONFIDENTIAL, UNDER SEAL, AND OUTSIDE THE PUBLIC RECORD. HOWEVER, INFORMATION IN THIS CLAIM WILL BE PROVIDED PURSUANT TO COURT-APPROVED CONFIDENTIAL GUIDELINES TO COUNSEL FOR THE COMMITTEE OF UNSECURED CREDITORS, AND OTHER COURT-APPROVED THIRD PARTIES IN ORDER TO EVALUATE THE CLAIM. YOUR PROOF OF CLAIM MAY BE DISPUTED OR HONORED IN WHOLE OR IN PART. THE DEBTOR RESERVES THE RIGHT TO OBJECT OR TO ASSERT OFFSETS OR DEFENSES AGAINST ANY FILED PROOF OF CLAIM FORM PART 1: CONFIDENTIALITY THIS SEXUAL ABUSE PROOF OF CLAIM (ALONG WITH ANY ACCOMPANYING EXHIBITS AND ATTACHMENTS) WILL BE MAINTAINED AS CONFIDENTIAL UNLESS YOU EXPRESSLY REQUEST THAT IT BE PUBLICLY AVAILABLE BY CHECKING THE BOX AND SIGNING BELOW. I do not want this Proof of Claim (along with any accompanying exhibits and attachments) to be kept confidential. Please verify this election by signing directly below. Signature: Print Name: PART 2: IDENTIFYING INFORMATION A. Sexual Abuse Claimant First Name Middle Initial Last Name Jr/Sr/III Mailing Address (If Party is incapacitated, is a minor or is deceased, please provide the address of the individual submitting the claim. If you are in jail or prison, your current address.) City Telephone No(s): Home: State/Prov. Zip Code (Postal Code) Work: Cell: Email address: If you are in jail or prison, your identification number: May we leave voicemails for you regarding your claim: 2 Yes No Country (if other than USA) May we send confidential information to your email: Yes No Birth Date: Male Female Month Day Year Social Security Number: ____-____-_____ Any other name(s) or alias(es) by which the Sexual Abuse Claimant has been known: B. Sexual Abuse Claimant’s Attorney (if any. Do not list counsel for the Debtors or the Official Creditors Committee): Law Firm Name Attorney’s First Name Middle Initial Last Name Street Address City State/Prov. Telephone No. Zip Code (Postal Code) Fax No. Country (if other than USA) E-mail address PART 3: BACKGROUND INFORMATION 1. Are you currently married? Yes No (If “Yes,” please identify the name of your spouse and marriage date.) 2. Have you previously been married? Yes No (If “Yes,” please identify your former spouse and, as applicable, the date(s) of any dissolution, divorce, separation or widowhood.) 3. Do you have children? Yes No (If “Yes,” please identify their names and birthdates. If any children have died, please provide their date of death.) 3 4. What schools have you attended? For each school, please identify the months and years of your attendance. If you cannot recall the exact months when you began or ended each school year, please identify the season (fall, winter, spring, summer). 5. Have you received a diploma or degree from any of the schools listed above? Yes No (If “Yes,” please identify each diploma or degree that you received and the year you received it.) 6. Have you served in the armed forces? Yes No (If “Yes,” please identify the branch of service, the dates you served and, if you have been discharged, the type of discharge you received.) 7. Are you currently employed? Yes No (If “Yes,” please identify the name of the organization where you are employed, the date that your employment began and your job title.) 8. What is your employment history? Please provide the following information about each place you have previously been employed: (i) the name of the organization where you were employed; (ii) the dates of employment; (iii) your job title(s); and (iv) your reason for leaving the place of employment. 4 9. Have you been self-employed? Yes No (If “Yes,” please provide your job responsibilities and any business name you used. Please also provide the dates of this business.) 10. Are you retired? Yes No (If “Yes,” when did you retire?) 11. Part 4 below will ask you about the nature of your complaint against the Archdiocese of Saint Paul and Minneapolis. Other than the incident(s) of sexual abuse described in Part 4, have you ever been sexually abused by anyone else? If “Yes,” please describe this abuse, including the date of the abuse and the identity of the abuser. PART 4: NATURE OF ABUSE (Attach additional separate sheets if necessary) NOTE: IF YOU HAVE PREVIOUSLY FILED A LAWSUIT AGAINST THE DEBTOR IN STATE OR FEDERAL COURT, YOU MAY ATTACH THE COMPLAINT. IF YOU DID NOT FILE A LAWSUIT, OR IF THE COMPLAINT DOES NOT CONTAIN ALL OF THE INFORMATION REQUESTED BELOW, YOU MUST PROVIDE THE INFORMATION BELOW. 1. Who committed each act of sexual abuse? 5 2. What is the position, title or relationship to you of the abuser or individual who committed these acts? 3. Where did the sexual abuse take place? Please be specific and complete all relevant information that you know, including the City and State, name of the parish, school (if applicable) and/or the names of any other location. 4. When did the sexual abuse take place? 5. a. Please be as specific as possible. If you can, please indicate the day, month and year. If you cannot recall the month, please try to recall the season of year (fall, winter, spring summer). b. If you were sexually abused on more than one occasion, please state when the abuse started, when it stopped, and how many times it occurred. c. Please also state your age(s) and your grade(s) in school (if applicable) at the time the abuse took place. Please describe in as much detail as possible the nature of the sexual abuse. What happened? 6 6. 7. Did you tell anyone about the sexual abuse (this would include parents, relatives, friends, the Archdiocese of Saint Paul and Minneapolis, attorneys, counselors, and law enforcement authorities)? ________________________________________________ a. If “Yes,” who did you tell? Please list the name(s) and any contact information you have. b. What did you say? c. When did you tell this person or persons about the abuse? d. If you know, what did the person or persons do in response? Were there any witnesses? If so, please list their name(s) and any contact information you have, including addresses. 7 8. Do you personally know or have reason to believe that the Archdiocese of Saint Paul and Minneapolis knew that your abuser was abusing you or others before or during the period when such abuse occurred? If “Yes”, please provide all information that supports your conclusion, including the information requested in items 8(a) through 8(e) below. a. Who at the Archdiocese knew that your abuser was abusing you or others? b. How did such person or persons at the Archdiocese learn this information? For example, did you report the abuse to someone from the Archdiocese? Did someone else tell you they reported it to someone from the Archdiocese? Did someone from the Archdiocese witness the abuse? c. When did such person or persons at the Archdiocese learn this information? d. What exactly was the person or persons from the Archdiocese told or what exactly did they observe? e. How did you come to have the information you provided in response to the questions above? 8 PART 5: IMPACT OF ABUSE (Attach additional separate sheets if necessary) 1. What injuries have occurred to you because of the act or acts of sexual abuse that resulted in the claim (for example, the effect on your education, employment, personal relationships, health, and any physical injuries)? 2. Have you sought counseling or other treatment for your injuries? If so, with whom and when? PART 6: ADDITIONAL INFORMATION 1. Prior Non-Bankruptcy Claims: Have you previously filed any lawsuit seeking damages for the sexual abuse described in this claim? Yes No (If “Yes” please answer the questions below.) a. Where and when did you file the lawsuit? b. Who were the parties to the lawsuit and what was the case number? c. What was the result of that lawsuit? 9 2. Prior Bankruptcy Claims: Have you filed any claims in any other bankruptcy case relating to the sexual abuse described in this claim? Yes No (If “Yes,” you are required to attach a copy of any completed claim form.) 3. Any Settlements: Regardless of whether a complaint was ever filed against any party because of the sexual abuse, have you settled any claim or demand relating to the sexual abuse described in this claim? Yes No (If “Yes,” please describe, including parties to the settlement. You are required to attach a copy of any settlement agreement.) 4. Bankruptcy: Have you ever filed bankruptcy? Yes No (If “Yes,” please provide the following information: Name of Case: Court: Date Filed: Case No.: Chapter: 7 11 12 13 Name of Trustee: Date: Sign and print your name. If you are signing the claim on behalf of another person or an estate, print your title. Under penalty of perjury, I declare the foregoing statements to be true and correct. Signature: Print Name: Title: 6997309v2 10 Exhibit C – Non-Tort Bar Date Notice UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. Chapter 11 Case ____________________________________________________________________________ NOTICE OF BAR DATES FOR FILING NON-TORT PROOFS OF CLAIM TO ALL PERSONS AND ENTITIES WITH CLAIMS AGAINST THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS: PLEASE TAKE NOTICE that on January 16, 2015 (the “Petition Date”) The Archdiocese of Saint Paul and Minneapolis, Debtor in the above-captioned case, filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the District of Minnesota (the “Court”). Debtor’s address, the case number, proof of claim forms and other relevant information related to this Chapter 11 case may be obtained at: http://information.archspm.org/. PLEASE TAKE FURTHER NOTICE that except as described below, all NonGovernmental Entities that have or assert any pre-petition Claims against the Debtor must file a proof of claim with the U.S. Bankruptcy Court Clerk at the following address: Office of the Clerk of Court, U.S. Bankruptcy Court District of Minnesota, 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, so that the proof of claim is received by the Clerk of Court on or before May 22, 2015 at 4:30 p.m., prevailing Central Time (“General Bar Date”). Please note that the terms “Non-Governmental Entity” and “Claim” are defined below. PLEASE TAKE FURTHER NOTICE that all Governmental Units that have or assert any pre-petition Claims against the Debtor must file a proof of claim with the U.S. Bankruptcy Court Clerk at the following address: Office of the Clerk of Court, U.S. Bankruptcy Court District of Minnesota, 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, so that the proof of claim is received by the Clerk of Court on or before July 17, 2015 at 4:30 p.m., prevailing Central Daylight) (“Government Bar Date”). Please note that the term “Governmental Unit” is defined below. PLEASE TAKE FURTHER NOTICE that for your convenience, enclosed with this notice (the “Non-Tort Bar Date Notice”) is a proof of claim form (the “Non-Tort Proof of Claim Form”). If this notice does not include a proof of claim form, a proof of claim form may be obtained from Debtor at: http://information.archspm.org/. KEY DEFINITIONS As used in this Notice, the term “Governmental Unit” has the meaning given to it in section 101(27) of the Bankruptcy Code and includes the United States, States, commonwealths, districts, territories, municipalities, foreign states, or departments, agencies or instrumentalities of the foregoing. As used in this Notice, the term “Non-Government Entity” means all persons (individuals, partnerships and corporations), estates and trusts that are not Governmental Units. As used in this Notice, the term “Claim” shall mean, as to or against the Debtor and in accordance with section 101(5) of the Bankruptcy Code: (i) any right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (ii) any rights to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE ANY QUESTIONS, INCLUDING WHETHER YOU MUST FILE A PROOF OF CLAIM I. WHO MUST FILE A PROOF OF CLAIM A. The Bar Dates: On ____________, 2015, the Court entered an order (the “Bar Date Order”) establishing certain claim bar dates in the Debtor’s chapter 11 case. The Bar Date Order establishes the following deadlines to file proofs of claim in this case: 1. The General Bar Date. Except as set forth below, pursuant to the Bar Date Order, all Non-Governmental Entities holding Claims against the Debtor (whether secured, unsecured priority, or unsecured nonpriority) that arose prior to or on the Petition Date, are required to file proofs of claim by the General Bar Date - May 22, 2015 at 4:30 p.m. (prevailing Central Time). 2. The Government Bar Date. In accordance with section 502(b)(9) of the Bankruptcy Code, all Governmental Units holding Claims against the Debtor (whether secured, unsecured priority or unsecured nonpriority) that arose prior to or on the Petition Date, are required to file proofs of claim by the Government Bar Date - July 17, 2015 at 4:30 p.m. (prevailing Central Time). B. Persons or entities that MUST file proofs of claims by the General Bar Date or the Government Bar Date: Except as set forth in paragraph C below, the following persons or entities must file proofs of claim on or before the General Claims Bar Date or the Government Bar Date, as applicable: 1. Any person or entity whose pre-petition claim against the Debtor is not listed in the Debtor’s Schedules or whose pre-petition claim is listed in the Schedules but is listed as disputed, contingent or unliquidated and that desires to participate in this case or share in any distribution in this case; and 2 2. Any person or entity that believes its pre-petition claim is improperly classified in the Schedules or is listed in an incorrect amount and that desires to have its claim allowed in a classification or amount other than that identified in the Schedules. PLEASE NOTE THAT INDIVIDUALS ASSERTING CLAIMS ARISING FROM SEXUAL ABUSE FOR WHICH SUCH INDIVIDUALS BELIEVE THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS MAY BE LIABLE ARE INSTRUCTED TO FILE A SEXUAL ABUSE PROOF OF CLAIM FORM, CONSISTENT WITH THE NOTICE OF DEADLINE FOR FILING CLAIMS RELATED TO, OR ARISING FROM, SEXUAL ABUSE. YOU MAY OBTAIN COPIES OF THESE FORMS FROM THE DEBTOR BY VISITING http://information.archspm.org/. C. Persons and entities NOT required to file proofs of claim by the General Bar Date or Government Bar Date: The following persons and entities need not file proofs of claim: 1. Any person or entity that has already properly filed a proof of claim against the Debtor with the Clerk of Court; 2. Any person or entity: (a) whose claim is listed in the Schedules or any amendments thereto, and (b) whose claim is not described therein as “disputed,” “contingent,” or “unliquidated,” and (c) who does not dispute the amount or classification of its claim as set forth in the Schedules; 3. Any person or entity that asserts an administrative expense claim against the Debtor pursuant to §§ 503(b)(1) through (9) of the Bankruptcy Code; 4. Any person or entity whose claim against the Debtor has been allowed by an order of the Court entered on or before the applicable bar date; and 5. II. Any person or entity whose claim has previously been paid in full. CONSEQUENCES OF FAILURE TO FILE PROOF OF CLAIM Any person or entity that is required to file a proof of claim, but fails to do so by the applicable bar date described in this Non-Tort Bar Date Notice: (i) may not be treated as a creditor with respect to such Claim for the purposes of voting on and distribution under any Chapter 11 plan proposed and/or confirmed in this case; and (ii) may be forever barred, stopped, and enjoined from asserting such Claim against the Debtor (or filing a proof of claim with respect thereto), and the Debtor and its property may be forever discharged from any and all indebtedness or liability with respect to such Claim. If it is unclear from the Schedules whether your Claim is disputed, contingent or unliquidated as to amount or is otherwise properly listed and classified, you must file a proof of claim on or before the applicable bar date. Any person or entity that relies on the information in the Schedules bears responsibility for determining that its Claim is accurately listed therein. 3 RESERVATION OF RIGHTS The Debtor reserves the right to: (i) dispute, or to assert offsets or defenses against any filed Claim or any Claim listed or reflected in the Schedules as to nature, amount, liability, classification or otherwise; and (ii) subsequently designate any Claim as disputed, contingent or unliquidated. Nothing contained in this Notice shall preclude the Debtor from objecting to any Claim, whether scheduled or filed, on any grounds. PROCEDURE FOR FILING PROOF OF CLAIM 1. An original proof of claim must be mailed or delivered to the U.S. Bankruptcy Court Clerk at the following address: Office of the Clerk of Court, U.S. Bankruptcy Court District of Minnesota, 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, or be filed through ECF in accordance with this court’s rules on electronic filing of claims, so the proof of claim is received by the Clerk of the Court by the applicable General Bar Date or Government Bar Date. Any proof of claim submitted by facsimile or email will not be accepted. If you wish to receive acknowledgment of the Clerk of the Court’s receipt of your proof of claim, you must also submit by the applicable bar date and concurrently with submitting your original proof of claim: (i) one additional copy of your original proof of claim; and (ii) a self-addressed, stamped return envelope. 2. Proofs of claim must include all documentation required by Bankruptcy Rules 3001(c) and 3001(d), including an original or a copy of any written document that forms the basis of the Claim or, for secured Claims, evidence that the alleged security interest has been perfected. ADDITIONAL INFORMATION Copies of the Schedules are available for inspection during regular business hours at the office of the Office of the Clerk of Court, U.S. Bankruptcy Court District of Minnesota, 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. In addition, copies of the Debtor’s Schedules may be viewed on the Internet at the Court’s website (http://www.mnb.uscourts.gov) by following the directions for accessing the ECF system on such website (a PACER password is required). Dated: ___________________ BY ORDER OF THE BANKRUPTCY COURT 6898578v4 4 Exhibit D – Sexual Abuse Claims Bar Date Notice UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. Chapter 11 Case ____________________________________________________________________________ NOTICE OF DEADLINE FOR FILING CLAIMS RELATING TO, OR ARISING FROM, SEXUAL ABUSE THIS IS AN IMPORTANT NOTICE. YOUR RIGHTS MIGHT BE AFFECTED. TO ALL PERSONS WITH CLAIMS ARISING FROM SEXUAL ABUSE FOR WHICH THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS MAY BE LIABLE: AUGUST 3, 2015 AT 4:30 P.M. (PREVAILING CENTRAL TIME) IS THE LAST DATE TO FILE PROOFS OF CLAIMS FOR SEXUAL ABUSE On January 16, 2015 (“Petition Date”) The Archdiocese of Saint Paul and Minneapolis (the “Archdiocese”), Debtor in the above-captioned case, filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the District of Minnesota (the “Court”). Debtor’s address, the case number, proof of claim forms and other relevant information related to this Chapter 11 case may be obtained at http://information.archspm.org/. Individuals (each an “Sexual Abuse Claimant” and collectively, the “Sexual Abuse Claimants”) have asserted sexual abuse claims against the Archdiocese, on account of alleged actions by people associated with the Archdiocese. Any person who believes that he or she has, or may have, a claim arising from sexual abuse as that term is defined in Minnesota Statutes §541.073(1), molestation, rape, undue familiarity, sexually-related physical, psychological or emotional harm, or contacts or interactions of a sexual nature between a child and an adult, or a non-consenting adult and another adult for which such persons believe that the Archdiocese may be liable (each an “Sexual Abuse Claim” and collectively, the “Sexual Abuse Claims”) should carefully read this notice. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE ANY QUESTIONS, INCLUDING WHETHER YOU MUST FILE A PROOF OF CLAIM. FILING DEADLINE The United States Bankruptcy Court for the District of Minnesota entered an order (the “Bar Date Order”) establishing August 3, 2015 at 4:30 p.m. (Central Daylight Time), as the last date and time (the “Sexual Abuse Claims Bar Date”) for each Sexual Abuse Claimant to file a proof of claim form (the “Sexual Abuse Proof of Claim Form”). The Sexual Abuse Claims Bar Date and the procedures set forth below for Sexual Abuse Proof of Claim Forms apply to all Sexual Abuse Claims against the Debtor, based upon alleged acts of sexual abuse occurring prior to January 16, 2015. WHO MUST FILE If you believe that you have a Sexual Abuse Claim, you must file a Sexual Abuse Proof of Claim Form to maintain and/or preserve any claims that you have against the Debtor. Even if you have already filed a lawsuit against the Debtor alleging sexual abuse prior to January 16, 2015, you must still file a Sexual Abuse Proof of Claim Form to maintain and/or preserve your rights in the Debtor’s Chapter 11 case. WHO SHOULD NOT FILE You should not file a Sexual Abuse Proof of Claim Form if: Your Sexual Abuse Claim has already been paid in full; You hold a claim that has been allowed by an order of the Bankruptcy Court on or before the Sexual Abuse Claims Bar Date; You do not have a claim against the Debtor. WHAT TO FILE YOU MUST FILE A SEXUAL ABUSE PROOF OF CLAIM FORM, A COPY OF WHICH IS ENCLOSED. YOU MAY ALSO OBTAIN A COPY OF THE SEXUAL ABUSE PROOF OF CLAIM FORM BY FOLLOWING THE INSTRUCTIONS BELOW: PROCEDURES FOR FILING A SEXUAL ABUSE PROOF OF CLAIM FORM To file a Sexual Abuse Proof of Claim Form, you must take the following steps: Fill out the Sexual Abuse Proof of Claim Form in its entirety. For additional copies of the Sexual Abuse Proof of Claim Form: (a) photocopy the Sexual Abuse Proof of Claim Form; (b) contact the Debtor between the hours of 9:00 a.m. and 5:00 p.m. (prevailing Central Time), Monday through Friday; or (c) visit the Debtor’s website at: http://information.archspm.org/. Please note that the Court’s Clerk staff is not permitted to give legal advice. You should consult your own attorney for assistance regarding any such inquiries. Return the completed Sexual Abuse Proof of Claim Form and one (1) copy to the U.S. Bankruptcy Court Clerk at the address set forth below by the Sexual Abuse Claims Bar Date. Sexual Abuse Proof of Claim Forms will be deemed timely filed only if they are actually received by the Clerk of Court by August 3, 2015, at 4:30 p.m. (prevailing Central Time). 2 Please note that the Sexual Abuse Proof of Claim Forms submitted by facsimile or electronic mail transmission will not be accepted. If you are returning a Sexual Abuse Proof of Claim Form by mail, allow sufficient mailing time so that the Sexual Abuse Proof of Claim Form is received on or before August 3, 2015, at 4:30 p.m. (prevailing Central Time). Sexual Abuse Proof of Claim Forms that are postmarked before that date, i.e., the Sexual Abuse Claims Bar Date, but which are received by the Clerk of the Court after the Sexual Abuse Claims Bar Date, will be considered late. Sexual Abuse Proof of Claim Forms should be delivered to the following address: Office of the Clerk of Court Attention: Barbie Montez U.S. Bankruptcy Court District of Minnesota 301 U.S. Courthouse 300 South Fourth Street Minneapolis, MN 55415 CONSEQUENCES OF FAILURE TO FILE A PROOF OF CLAIM The deadline for filing a Sexual Abuse Proof of Claim Form is August 3, 2015, at 4:30 p.m. (prevailing Central Time). Any person who has a Sexual Abuse Claim and does not file a Sexual Abuse Proof of Claim Form by that date may not be treated as a creditor for distribution purposes under any plan of reorganization and such claim may be subject to discharge. Failure to file a Sexual Abuse Proof of Claim Form may prevent such person from voting on any plan of reorganization in this case. Further, if such Sexual Abuse Claim is discharged, the Sexual Abuse Claimant may be forever barred and prevented from asserting his or her Sexual Abuse Claim against the Debtor or its property, and may not receive any payment or distribution in connection with such Sexual Abuse Claim. CONFIDENTIALITY Filed Sexual Abuse Proof of Claim Forms will remain confidential in this bankruptcy case, unless you elect otherwise in Part 1 of the Sexual Abuse Proof of Claim Form. Therefore, the Sexual Abuse Proof of Claim Form that you file will not be available to the general public, but will be kept confidential, except that information will be provided to the Debtor, the United States Trustee’s Office for the District of Minnesota, the Debtor’s insurers, attorneys for the official committee of unsecured creditors and its members, any future claims representative appointed under a plan of reorganization, any settlement trustee appointed to administer payments to Sexual Abuse Claimants, prison authorities for incarcerated Sexual Abuse Claimants and such other persons as the Court determines should have the information in order to evaluate the Sexual Abuse Claim, all of whom will agree to keep the information provided by you confidential. Dated: ________________ BY ORDER OF THE BANKRUPTCY COURT 6899819v6 3 Exhibit E – Publication Notice BANKRUPTCY COURT FOR THE DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis Case No. 15-30125 YOU MAY HAVE A CLAIM AGAINST THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS On January 16, 2015, The Archdiocese of Saint Paul and Minneapolis (“Debtor”) filed for protection under Chapter 11 of Title 11 of the United States Code. The last day to file a SEXUAL ABUSE CLAIM against the Debtor is August 3, 2015 at 4:30 P.M. (Central Time). • If you were sexually abused by any person connected with the Debtor, then you must file a claim by August 3, 2015 at 4:30 p.m. (central time). Sexual abuse, as used in this notice, includes molestation, rape, undue familiarity, sexually-related physical, psychological or emotional harm, or contacts or interactions of a sexual nature between a child and an adult, or a nonconsenting adult and another adult. The last day to file a GOVERNMENT CLAIM against the Debtor is July 17, 2015 at 4:30 P.M. (Central Time). • If you are a Governmental Unit, as defined by Bankruptcy Code § 101(27), and claim any right to payment or to an equitable remedy for breach of performance if such breach gives rise to a right to payment, then you must file a claim by July 17, 2015 at 4:30 p.m. (central time). The last day to file a GENERAL CLAIM against the Debtor is May 22, 2015 at 4:30 P.M. (Central Time). • If you are not a Governmental Unit or a sexual abuse claimant and claim a right to payment or to an equitable remedy for breach of performance if such breach gives rise to a right to payment, then you must file a claim by May 22, 2015 at 4:30 p.m. (central time). YOU MUST ACT NOW TO PRESERVE YOUR RIGHTS For more information on how to obtain and file a proof of claim and associated documents please: (a) visit the Debtor’s website at http://information.archspm.org/; (b) call the Debtor’s toll-free hotline at ______________; or (c) call the Official Committee of Unsecured Creditors appointed in this case at ____________________. 6899963v7 UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. Chapter 11 Case ______________________________________________________________________________ MEMORANDUM IN SUPPORT OF VERIFIED MOTION OF THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS FOR ORDER (1) ESTABLISHING DEADLINES FOR FILING PROOFS OF CLAIM; (2) APPROVING PROOF OF CLAIM FORMS; (3) APPROVING FORM AND MANNER OF NOTICE THEREOF; AND (4) APPROVING CONFIDENTIALITY PROCEDURE ______________________________________________________________________________ INTRODUCTION The Archdiocese submits this memorandum of law in support of its accompanying verified motion for the relief set forth herein. Terms defined in the verified motion shall have the same meaning in this memorandum. FACTS The facts relevant to this memorandum are set forth in detail in the verified motion. As indicated in the verified motion, establishing a last date for parties to file claims against the Archdiocese is critical in this Chapter 11 case so that the Archdiocese will be able to proceed with a reorganization plan and avoid protracted proceedings that could rapidly deplete the Archdiocese’s assets available to pay Sexual Abuse Claimants. DISCUSSION I. THE ARCHDIOCESE’S PROPOSED BAR DATES SHOULD BE APPROVED AND ESTABLISHED Bankruptcy Rule 3003(c)(3) provides that the Court shall fix the time within which proofs of claim must be filed in a Chapter 11 case pursuant to Section 501 of the Bankruptcy Code. Bankruptcy Rule 3003(c)(2) further provides that any creditor who asserts a claim against the debtor that arose prior to the petition date, and whose claim is not scheduled in the debtor’s schedules of assets and liabilities or whose claim is listed on such schedules as disputed, contingent, or unliquidated, must file a proof of claim, failing which such creditor shall not be treated as a creditor with respect to such claim for purposes of voting and distribution. Id. “A bar date serves an important purpose of enabling the parties to a bankruptcy case to identify with reasonable promptness the identity of those making claims against the bankruptcy estate, and the general amount of the claims, a necessary step in achieving the goal of reorganization.” In re Energy Future Holdings Corp., et al., 522 B.R. 520, 526-27 (Bankr. D. Del. 2015) (quoting In. re Smidth & Co., 413 B.R. 161, 165 (Bankr. D. Del. 2009)). This rule “contributes to one of the main purposes of bankruptcy law, securing, within a limited time, the prompt and effectual administration and settlement of the debtor’s estate.” Id. at 527. The proposed Sexual Abuse and Non-Tort Bar Dates will achieve this objective while providing potential claimants with an adequate amount of time after the mailing of the Bar Date Packages and dissemination of the Publication Notice within which to review the schedules, compare the information contained therein and, if necessary, prepare and file Proofs of Claim. This includes governmental units, which will have more than the 180 days after the Petition Date required by Bankruptcy Rule 3002(c)(1) to file a Proof of Claim. Fixing the Bar Dates for all parties to file Proofs of Claims is essential to allow this case to efficiently progress. Parties have expressed reservations about resolving claims or approving a plan of reorganization until the universe of Sexual Abuse Claims is ascertained. Delay in establishing this universe of Sexual Abuse Claims will only extend the pendency of these proceedings, result in increased costs of administration, and diminish the Archdiocese’s estate and assets available to fairly and equitably compensate Sexual Abuse Claimants and other -2- creditors. See, e.g., In re Energy Future Holdings Corp., 522 B.R. at 527 (observing that in setting a bar date, “[t]he objectives of finality and fixing the universe of claims permeates the law of bankruptcy . . .”); In re Drexel Burnham Lambert Grp. Inc., 151 B.R. 674, 679 (Bankr. S.D.N.Y. 1993) aff’d sub nom. In re Drexel Burnham Lambert Grp., Inc. 157 B.R. 532 (S.D.N.Y. 1993) (“The issuance of the claims bar date is an essential feature of the reorganization process because it provides a date certain after which a plan can be negotiated, formulated, and eventually confirmed. The bar date is much more than a means to limit claims; it provides finality to a process that will ultimately lead to the rehabilitation of the debtor and the payment of claims under a plan of reorganization.”); In re Best Products Co., Inc., 140 B.R. 353, 357 (Bankr. S.D.N.Y. 1992) (“The bar order then is not a mere procedural gauntlet, but an integral step in the reorganization process.”). As detailed in the verified motion, the Archdiocese conducted a diligent prepetition investigation and file review to determine the identities of Sexual Abuse Claimants and to publicly disclose accused clergy members through press releases, news editorials, and permanent website postings beginning in December 2013. In connection with these efforts, there has been more than a year of substantial publicity and media attention on Sexual Abuse Claims asserted against the Archdiocese. Additionally, in the more than 19 months following enactment of the Minnesota Child Victims Act, counsel for the large majority of Sexual Abuse Claimants has undertaken successful and wide-ranging efforts to publicize the rights of Sexual Abuse Claimants and to request that Sexual Abuse Claimants come forward for the purpose of asserting claims against the Archdiocese. All of these past efforts, disclosures, and developments, coupled with the proposed Publication Protocol, are sufficient to provide adequate notice to Sexual Abuse Claimants of their rights to assert Sexual Abuse Claims by the proposed Sexual Abuse Claims Bar Date. -3- The Sexual Abuse Claim Bar Date, which is more than six months from the Petition Date, is consistent with recent diocese bankruptcies in other jurisdictions. See, e.g., In re Roman Catholic Bishop of Helena, Montana (Diocese of Helena), Case No. 14-60074 (Bankr. D. Mont. Jan. 31, 2014) (ECF No. 242) (approving an abuse claim bar date approximately six months from the petition date); In re Diocese of Stockton, Case No. 14-20371 (Bankr. E.D. Cal. May 8, 2014) (ECF No. 262) (approving an abuse claim bar date approximately seven months from the petition date); In re Catholic Diocese of Wilmington, Inc., Case No. 09-13560 (Bankr. D. Del. Sept. 18, 2009) (ECF No. 308) (approving an abuse claim bar date approximately six months from the petition date). Likewise, as summarized in the chart below, the resulting notice period between the filing of the anticipated order on this verified motion and the proposed Bar Dates is consistent with the average period elapsed in prior diocesan bankruptcy cases: Case Date Case Filed Milwaukee 11-20059 (ED Wis.) 1/4/2011 Date of order approving bar-date(s) 7/14/11 Portland 04-37154 (Ore) Tucson 04-04721 (Ariz) Wilmington 09-13560 (Del) San Diego 07-00939 (SD Cal) 7/7/2004 1/3/05 Davenport 06-02229 (SD Iowa) 10/10/2006 9/20/2004 10/18/2009 2/27/2007 11/5/04 2/1/10 8/20/07 3/16/07 The bar date(s) Time elapsed between order and bar date(s) General: 10/11/11 Abuse: 2/1/12 General: 2 months, 27 days Abuse: 6 months, 18 days General/Abuse: 4/29/05 3 months, 26 days General/Abuse: 4/15/05 5 months, 10 days General/Abuse: 4/15/10 2 months, 14 days General/Abuse: 2/28/08 6 months, 8 days General/Abuse: 7/16/07 4 months, 0 days -4- Case Date Case Filed Spokane 04-08822 (ED Wash) Fairbanks 08-00110 (Alaska) Gallup 13-13676 (NM) Stockton 14-20371 (ED Cal) 12/6/2004 1/15/2014 Helena 14-60074 (Montana) 1/31/14 II. 3/1/2008 11/12/2013 Date of order approving bar-date(s) 12/1/05 The bar date(s) Time elapsed between order and bar date(s) General/Abuse: 3/10/06 3 months, 9 days General/Abuse: 12/2/08 6 months, 2 days General/Abuse: 8/11/14 4 months, 0 days 5/08/14 General: 5/22/14 Abuse: 8/15/14 General: 14 days Abuse: 3 months, 7 days 5/6/14 General/Abuse: 8/11/14 3 months, 5 days 5/30/08 4/11/14 THE PROPOSED PROOF OF CLAIM FORMS SHOULD BE APPROVED A modified proof of claim form similar to those approved in other diocese bankruptcies is appropriate and should be used in this case. It is well established that the court may authorize modifications of Official Bankruptcy Form B10. See In re A.H. Robins Co., 862 F.2d 1092 (4th Cir. 1988); In re Eagle-Picher Indus., Ins., 158 B.R. 713, 716 (Bankr. S.D. Ohio 1993). While Bankruptcy Rule 3001(a) provides that “[a] proof of claim shall conform substantially to the appropriate Official Form,” Bankruptcy Rule 9009 authorizes appropriate and necessary alterations to the Official Forms: [T]he Official Forms prescribed by the Judicial Conference of the United States shall be observed and used with alterations as may be appropriate. Forms may be combined and their contents rearranged to permit economies in their use. The Director of the Administrative Office of the United States Courts may issue additional forms under the Code. The forms shall be construed to be consistent with these rules and the Code. -5- Fed R. Bankr. P. 9009; see also In re I.G. Servs., Ltd., 244 B.R. 377, 384 (Bankr. W.D. Tex. 2000) (noting that proof of claim forms that deviate from Official Proof of Claim Form 10 may be used when special circumstances exist). Further, in A.H. Robins, the court recognized that substantial alternations to Official Proof of Claim Form 10 may be necessary when dealing with tort claims. 862 F.2d at 1092. The Sexual Abuse Proof of Claim Form attached as Exhibit B-1 provides appropriate and necessary modifications to the Official Form B10 to, among other things, provide information needed to allow the Archdiocese and other parties-in-interest, such as insurers, to evaluate Sexual Abuse Claims. For this reason, similar forms have been approved in other diocese or religious order bankruptcy cases. See, e.g., In re Roman Catholic Bishop of Helena, Montana (Diocese of Helena), Case No. 14-60074 (Bank. D. Mont. May 6, 2014) (ECF No. 242); In The Christian Brothers’ Institute, et al., Case No. 11-22820 (RDD) (Bankr. S.D.N.Y. February 10, 2012) (ECF No. 244); In re Archdiocese of Milwaukee, Case No. 11-20059-svk (Bankr. E.D. Wis. July 14, 2011) (ECF No. 331); In re Catholic Diocese of Wilmington, Inc., Case No. 0913560 (Bankr. D. Del. Feb. 1, 2010) (ECF No. 308); In re Roman Catholic Church of The Diocese of Tucson, Case No. 04-04721 (Bankr. D. Ariz. Nov 5, 2004) (ECF No. 118); In re Catholic Bishop of Northern Alaska, Case No. 08-00110 (Bankr. D. Ala. May 30, 2008) (ECF No. 180); In re Diocese of Davenport, Case No. 06-02229 (Bankr. S.D. Iowa Mar. 16, 2007) (ECF No. 97); In re Roman Catholic Bishop of San Diego, Case No. 07-00939 (Bankr. S.D. Cal. Aug. 20, 2007) (ECF No. 1061). III. THE PROPOSED NOTICE AND PUBLICATION PROTOCOL SHOULD BE ADOPTED AND IMPLEMENTED IN THIS CASE In order to satisfy the requirements of due process, notice of the Bar Dates must be reasonably calculated to apprise interested persons of the deadlines. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Whether notice is reasonable or adequate -6- depends on whether a creditor is known or unknown to the debtor. See Grant v. U.S. Home Corp. (In re U.S.H. Corp of NY), 223 B.R. 654, 658 (Bankr. S.D.N.Y. 1998); see also Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir. 1995). “Known” creditors must receive actual, mail notice of bankruptcy proceedings. See Chemetron, 72 F.3d at 345. By contrast, notice by publication is sufficient to satisfy the requirement of due process for “unknown” creditors. See id. at 346-47; see also In re Energy Future Holdings Corp., 522 B.R. at 529 (“Publication in national newspapers is regularly deemed sufficient notice to unknown creditors, especially where supplemented . . . with notice in papers of general circulation in locations where the debtor is conducting business.”) (internal citations omitted). A. The Archdiocese’s Notice To Known Creditors Is Sufficient A “known” creditor is one whose identity is either known or “reasonably ascertainable by the debtor.” Chemetron, 73 F.3d at 346 (citing Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478 (1988)). In identifying “known” creditors, due process requires debtors to perform reasonable diligence of their books and records – but it does not require that debtors engage in “impracticable and extended searches.” Mullane, 339 U.S. at 317; see also In re Thimson McKinnon Securities Inc., 130 B.R. 717, 720 (Bankr. S.D.N.Y. 1991) (noting that the debtor is not required to search out each conceivable or possible creditor). “A creditor's identity is reasonably ascertainable if that creditor can be identified through reasonably diligent efforts. Reasonable diligence does not require impracticable and extended searches. The requisite search for a known creditor, instead, usually requires only a careful examination of a debtor's books and records.” In re Energy Future Holdings Corp., 522 B.R. 520, 529 (Bankr. D. Del. 2015). The known creditors of the Archdiocese fall into five basic categories: (1) Non-Debtor Catholic Entity creditors; (2) employee creditors; (3) trade creditors; (4) Sexual Abuse Claimants represented by counsel; and (5) potential Sexual Abuse Claimants identified by the Archdiocese -7- through file review and who are unrepresented. Each of these categories of known creditors will receive sufficient notice as outlined in the motion. First, the Archdiocese believes that it has now identified known potential Non-Debtor Catholic Entity creditors, employee creditors, and trade creditors in the Archdiocese’s schedules and on the master mailing matrix on file in this case. The Archdiocese will update its schedules and the master mailing matrix if it becomes aware of any additional creditor in these categories. As outlined in the motion, all such creditors will receive the Non-Tort Bar Date Package directly by mail. Next, for those known Sexual Abuse Claimants who are represented by an attorney, “it may be appropriate for the debtor to schedule the creditor in care of its attorney provided the attorney is the creditor's agent in matters related to the debtor.” In re Schicke, 290 B.R. 792, 802 (B.A.P. 10th Cir. 2003). “If the attorney is the creditor's agent, agency law permits notice received by the attorney-agent to be imputed to the creditor. Such imputed notice may, depending on the facts of the case, be ‘notice’ under § 523(a)(3)(B).” Id. As the Tenth Circuit panel explained: An attorney may be an agent of his or her client, and notice to an agent-attorney can be imputed to the principal-client. It has thus been held that debtors may list a creditor in care of its attorney in their Schedule of Liabilities, provided that the attorney is the creditor's agent in the context of the bankruptcy case, and notice to the attorney-agent will be “notice” under § 523(a)(3)(B). While an attorney need not have been retained to represent a creditor in a bankruptcy case or be a bankruptcy attorney, it is important that there be some nexus between the creditor's retention of the attorney and the creditor's issues with the debtor. It is generally held that an attorney who represents the creditor in matters against a debtor prepetition, such as in obtaining or collecting a judgment that will be affected by discharge, will be an agent of the creditor in the context of a debtor's bankruptcy case. Scheduling a creditor in care of an agent-attorney may not, depending on the facts of the case, be offensive under § 342(a) or due process. Neither require the “best” notice. Section 342(a) only requires notice that is “appropriate,” and due process mandates notice “reasonably calculated” to apprise creditors of a case. Notice sent to an agent-attorney in certain circumstances, therefore, may be appropriate and reasonably calculated to inform the clientcreditor of the case. Indeed, given an agent's duties to its principal and an -8- attorney's duties to its client, it may be reasonable to assume that notice to the agent-attorney will be relayed to the principal-client-creditor. This assumption holds even when the attorney's retention has been terminated by the client, if the termination is unknown to the debtor. Id. at 802-03 (citations omitted). Here, because the known Sexual Abuse Claimants have been represented by counsel seeking to obtain or collect judgments against the Archdiocese for the same claims that the Sexual Abuse Claimants have in the bankruptcy case, the requisite nexus exists between each creditor’s retention of the attorney and the creditor’s issues with the debtor. As such, the Archdiocese intends to effect service on known Sexual Abuse Claimants through their respective retained counsel. Finally, the Archdiocese submits that it has located reasonably ascertainable known potential creditors through reasonably diligent efforts. To identify any reasonably ascertainable creditors, the Archdiocese conducted a painstaking file review and enlisted Kinsale, among other extensive efforts outlined in the motion, in a concerted effort to identify potential Sexual Abuse Claimants. The Archdiocese believes that its efforts meet the reasonable diligence requirement for identifying reasonably ascertainable creditors. As such, the Archdiocese believes that the direct notice to the creditors listed herein constitutes all of the direct notice that is required in this case. Reasonably ascertainable unrepresented potential Sexual Abuse Claimants have already been served with notice of this bankruptcy case. See ECF No. 94. The Archdiocese will also serve the Sexual Abuse Claims Bar Date Package directly on those same reasonably ascertainable creditors. Applied here, the proposed service of the Bar Date Packages and the Publication Notice satisfy the due process requirements and reasonably apprise interested persons of the applicable deadlines. All known creditors, including all Sexual Abuse Claimants made known to the Archdiocese through reasonable diligence will receive actual, mailed notice of the Bar Dates -9- through the Bar Date Packages, which include the Bar Date Notices attached as Exhibits C and D. In each case, the Bar Date Notice gives the claimant a significantly greater notice period than the 21 day period required by Bankruptcy Rule 2002(a)(7).5 B. The Archdiocese’s Notice To Unknown Creditors Is Sufficient An unknown creditor is one whose “interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to the knowledge” of the debtor. Mullane, 339 U.S. at 317; see also Walters v. Hunt (In re Hunt), 146 B.R. 178 (Bankr. N.D. Tex. 1992) (“Unknown creditors include those whose identities or claims are not reasonably ascertainable . . . .”). In bankruptcy cases, when determining whether a creditor is “known” or “unknown,” the appropriate form of notice, and how much to spend on notice, courts must balance the interests of the debtor’s existing and potential creditors as well as other parties in interest. See Vancouver Women’s Health Collective Soc. v. A.H. Robins Co., Ins., 820 F.2d 1359, 1364 (4th Cir. 1987); see also Fogel v. Zell, 221 F.3d 955, 963 (7th Cir. 2000); In re GAC Corp., 681 F.2d 1295, 1300 (11th Cir. 1982); In re Circuit City Stores, Inc., 439 B.R. 652, 660 (Bankr E.D. Va. 2010) (“[t]he totality of the circumstances in each case must be analyzed to determine whether a particular creditor is known or unknown”). A debtor need only make “reasonably diligent efforts” to uncover identities and claims of such creditors. In re Hunt, 146 B.R. at 182. They need not “search out each conceivable or possible creditor.” Id. In this regard, a debtor need not be “omnipotent or clairvoyant.” Drexel, 151 B.R. at 681. As the Supreme Court stated in Mullane, “impracticable and extended searches are not required in the name of due process.” 339 U.S. at 317–18, 70 S.Ct. at 658–59. 5 Pursuant to Bankruptcy Rule 2002(a)(7), “the clerk or some other person as the court may direct, shall give the debtor, the trustee, all creditors and indenture trustees at least 21 days’ notice by mail of: . . . the time fixed for filing of claims pursuant to Rule 3003(c).” -10- Any potential creditors not already identified the Archdiocese at this time should be deemed to be unknown. The Archdiocese has undertaken significant efforts to ascertain the identities of potential creditors. As such, the Archdiocese believes that further review is not required by due process and that notice to additional unknown creditors may be made through publication. With respect to unknown creditors, the Archdiocese’s Publication Protocol was designed to reach the widest possible audience of creditors who may not otherwise have notice of the Archdiocese’s Chapter 11 case, through far-reaching dissemination of the Publication Notice or Bar Date Notices to (1) national print media, (2) local and national Catholic publications, (3) nineteen leading local publications in circulation in and beyond the Region, (4) claimant and archdiocesan websites, (5) a toll-free number to serve as a resource for Sexual Abuse Claimants, (6) the Minnesota Attorney General, (7) the district attorney, county clerk and sheriff’s department for each of the twelve counties comprising the Region, (8) the Minnesota Department of Health’s three locations in the Region, (9) each hospital in the Region, and (10) each of the 187 parishes within the Region. At bottom, the proposed Bar Date Notices and Publication Notice are fair and reasonable and will provide good, sufficient and due notice to all creditors of their rights and obligations in connection with claims they may assert against the Archdiocese’s estate. IV. THE PROPOSED CONFIDENTIALITY PROCEDURES SHOULD BE IMPLEMENTED TO PROTECT THE RIGHTS AND PRIVACY OF SEXUAL ABUSE CLAIMANTS Section 107(b) of the Bankruptcy Code provides the court with the power to issue orders that will protect entities and individuals from harm that may result from the disclosure of potentially scandalous or defamatory information. This section provides in relevant part: (b) On request of a party in interest, the bankruptcy court shall, and on the bankruptcy court’s own motion, the bankruptcy court may— -11- (1) protect an entity with respect to a trade secret or confidential research, development, or commercial information; or (2) protect a person with respect to scandalous or defamatory matter contained in a paper filed in a case under this title. 11 U.S.C. § 107(b); see also Fed. R. Bankr. P. 9018 (“On motion or on its own initiative, with or without notice, the court may make any order which justice requires . . . (2) to protect any entity against scandalous or defamatory matter contained in any paper filed in a case under the Code [.]”). Many Sexual Abuse Claimants who have filed suit or who have advised the Archdiocese of potential claims have done so under pseudonyms or have disclosed their names to the Archdiocese with the expectation that their identities will be held in strict confidence. Accordingly, the Archdiocese believes that it has a duty to keep the identities of Sexual Abuse Claimants confidential. Sexual Abuse Claimants should not be forced to make their identities public in order to participate in this case.6 Accordingly, under the confidentiality procedures proposed in the verified motion, Sexual Abuse Proof of Claim Forms submitted by Sexual Abuse Claimants will not be available to the general public unless a Sexual Abuse Claimant affirmatively indicates, in writing, his or her desire that the Sexual Abuse Proof of Claim Form be made public. Dissemination of the Sexual Abuse Proof of Claim Forms will also be limited to the Permitted Parties, subject to each Permitted Party agreeing in writing to keep the information provided in the forms confidential. Through these confidentiality procedures, the Archdiocese and Permitted Parties may obtain the 6 The Archdiocese has no objection if individuals who contend they are Sexual Abuse Claimants decide to make their identifies public; however, the Archdiocese believes that the decision should be left to each individual and should not be forced upon such persons. -12- information necessary to evaluate the Sexual Abuse Claims while at the same time ensuring that Sexual Abuse Claimants are not discouraged from coming forward to assert their claims. CONCLUSION For the foregoing reasons, this court should grant the motion, and enter an order: (i) establishing Bar Dates for General Claims, Government Claims, and Sexual Abuse Claims; (ii) approving the proposed Proof of Claim Forms; (iii) approving the form and manner of notice of the Bar Date Packages; (iv) approving the form and manner of mailing of Bar Date Notices and posting of the Publication Notice; and (v) approving the procedures for the confidential submission of Sexual Abuse Proof of Claim Forms. Dated: April 1, 2015 Respectfully submitted, e/ Richard D. Anderson BRIGGS & MORGAN, P.A. Richard D. Anderson (#2306) [email protected] Charles B. Rogers (#0130588) [email protected] Benjamin E. Gurstelle (#389968) [email protected] 2200 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 977-8400 Facsimile: (612) 977-8650 Attorneys for The Archdiocese of Saint Paul and Minneapolis -13- UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA In re: The Archdiocese of Saint Paul and Minneapolis, Bankruptcy Case No. 15-30125 Debtor. Chapter 11 Case ______________________________________________________________________________ ORDER ESTABLISHING DEADLINES FOR FILING PROOFS OF CLAIM; APPROVING PROOF OF CLAIM FORMS; APPROVING FORM AND MANNER OF NOTICE THEREOF; AND APPROVING CONFIDENTIALITY PROCEDURE ______________________________________________________________________________ The case came before the court on the motion of the Archdiocese of Saint Paul and Minneapolis for an order establishing deadlines for filing proofs of claim, approving proof of claim forms, approving the form and manner of notice, and approving confidentiality procedures in connection with the submission of proofs of claim. Based on the motion and the file, IT IS ORDERED: 1. The Archdiocese’s motion for an order establishing deadlines for filing proofs of claim, approving proof of claim forms, approving the form and manner of notice, and approving confidentiality procedures in connection with the submission of proofs of claim is granted as set forth in this order. FORMS 2. The Non-Tort Proof of Claim Form, the Sexual Abuse Proof of Claim Form, the Non-Tort Bar Date Notice, the Sexual Abuse Claims Bar Date Notice and the Publication Notice, in the forms attached as Exhibits A, B, C, D, and E are approved. NOTICE 3. The form and manner of notice as approved in this order fulfill the notice requirements of the Bankruptcy Rules and the local rules of this court. Notice of the bar dates in the form and manner attached is fair and reasonable and will provide sufficient notice to all creditors of their rights and obligations in connection with claims they may assert against the Archdiocese’s estate in this case. Accordingly, the Archdiocese is authorized and directed to serve and publish the notices in the manner described in this order. BAR DATES 4. Except as provided in paragraphs 5 and 6 of this order, any person or entity holding a pre-petition claim against the Archdiocese must file a proof of claim in accordance with the procedures described in this order on or before Friday, May 22, 2015, at 4:30 p.m. (prevailing Central Time) (the “General Bar Date”). The General Bar Date applies to all persons and entities, other than governmental units and Sexual Abuse Claimants addressed in paragraphs 5 and 6 of this order, that assert claims, as defined in section 101(5) of the Bankruptcy Code, against the Archdiocese (whether secured, unsecured priority, or unsecured non-priority) that arose prior to or on the petition date. The General Bar Date shall be identified in the NonTort Abuse Bar Date Notice (Ex. C) and the Publication Notice (Ex. E). 5. Any governmental unit holding a pre-petition claim against the Archdiocese must file a proof of claim in accordance with the procedures described in this order on or before Friday, July 17, 2015, at 4:30 p.m. (prevailing Central Time) (the “Government Bar Date”). The Government Bar Date will apply to all governmental units holding claims against the Archdiocese (whether secured, unsecured priority, or unsecured nonpriority) that arose prior to the petition date. For purposes of this order, a governmental unit includes the United States, States, commonwealths, districts, territories, municipalities, foreign states, or departments, -2- agencies, or instrumentalities of the foregoing. The Government Bar Date shall be identified in the Non-Tort Bar Date Notice (Ex. C) and the Publication Notice (Ex. E). 6. Any person holding a pre-petition claim arising from sexual abuse for which the individual believes that the Archdiocese may be liable must file a proof of claim in accordance with the procedures described in this order on or before August 3, 2015, at 4:30 p.m. (prevailing Central Time) (the “Sexual Abuse Claims Bar Date”). The Sexual Abuse Claims Bar Date shall be identified in the Sexual Abuse Claims Bar Date Notice (Ex. D) and the Publication Notice (Ex. E). WHO MUST FILE PROOFS OF CLAIM 7. The following persons and entities, whose claims would otherwise be subject to the bar dates established in this order shall not be required to file proofs of claim in this Chapter 11 case: (i) Any person or entity that has already properly filed a proof of claim against the Archdiocese with the Clerk of Court for the United States Bankruptcy Court for the District of Minnesota; (ii) Any person or entity: (a) whose claim is listed in the schedules [ECF No. 92] or any amendments; and (b) whose claims is not described therein as “disputed,” “contingent,” or “unliquidated;” and (c) who does not dispute the amount or classification of its claim as set forth in the schedules; (iii) Any person or entity, including professionals retained by the Archdiocese or the committee of unsecured creditors, who asserts an administrative expense claim against the Archdiocese pursuant to Section 503(b) and 507(a)(2) of the Bankruptcy Code; (iv) Any person or entity whose claim against the Archdiocese has been allowed by an order of the court entered on or before the applicable bar date; and (v) 8. Any person or entity whose claim has previously been paid in full. The following persons and entities must file a proof of claim on or before the applicable bar dates: -3- (i) Any person or entity whose prepetition claim against the Archdiocese is not listed in the Archdiocese’s schedules or whose prepetition claim is listed in the schedules but is listed as disputed, contingent or unliquidated, and that desires to participate in this Chapter 11 case or share in any distributions in this Chapter 11 case; (ii) Any person or entity that believes that its prepetition claim is improperly classified in the schedules or is listed in an incorrect amount and that desires to have its claim allowed in a classification or amount other than that identified in the schedules; (iii) Any person who believes that he or she has or may have a claim for sexual abuse for which the person believes the Archdiocese may be liable. 9. Any person or entity that is required to file a proof of claim in this case, but that fails to do so by the applicable bar date, may not be treated as a creditor with respect to such claim for the purposes of voting on and distribution under any Chapter 11 plan proposed or confirmed in this case. 10. The Archdiocese shall retain the right to: (i) dispute, or assert offsets or defenses against, any filed claim or any claim listed or reflected in the schedules as to nature, amount, liability, classification, or otherwise; and (ii) subsequently designate any claim as disputed, contingent, or unliquidated. REQUIREMENTS FOR PROOFS OF CLAIM FORMS 11. Persons and entities subject to either the General Bar Date or the Government Bar Date shall file a “Non-Tort Proof of Claim Form” (Ex. A). Each Non-Tort Proof of Claim Form filed in this case must: (i) be written in English; (ii) be denominated in lawful currency of the United States as of the petition date; (iii) have attached copies of any writings upon which the claim is based, including evidence that the security interest has been perfected for any secured claims; and (iv) be originally executed and mailed or delivered to the Clerk of the United States Bankruptcy Court for the District of Minnesota at the following address: 301 U.S. Courthouse, -4- 300 South Fourth Street, Minneapolis, Minnesota 55415, or filed through ECF in accordance with this court’s rules on electronic filing of proofs of claim. 12. The Non-Tort Proof of Claim Forms must be received by the applicable bar dates established in this order. Proofs of claim sent by facsimile, telecopy, or e-mail will not be accepted. 13. Persons asserting claims arising from sexual abuse as that term is defined in Minnesota Statutes § 541.073(1), as well as from molestation, rape, undue familiarity, sexuallyrelated physical, psychological or emotional harm, or contacts or interactions of a sexual nature between a child and an adult, or a non-consenting adult and another adult for which such persons believe that the Archdiocese may be liable (“Sexual Abuse Claimants”) shall file a Sexual Abuse Proof of Claim (Ex. B). Each Sexual Abuse Proof of Claim Form filed in this case must: (i) be written in English; and (ii) be originally executed and mailed or delivered, along with one (1) copy, to the U.S. Bankruptcy Court Clerk, Attention: Barbie Montez at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415 on or before the Sexual Abuse Claims Bar Date. 14. The Sexual Abuse Proof of Claim Forms must be received by Monday, August 3, 2015, at 4:30 p.m., prevailing Central Time. Proofs of claim sent by facsimile, telecopy, or e-mail will not be accepted. 15. The Clerk of Court will provide copies of as-filed Sexual Abuse Proof of Claim Forms to the Archdiocese on a weekly basis. CONFIDENTIALITY PROCEDURES 16. Sexual Abuse Proof of Claim Forms shall be submitted pursuant to the following confidentiality procedures: (i) Sexual Abuse Claimants are directed to mail or deliver the original and one (1) copy of each Sexual Abuse Proof of Claim Form to the Clerk of the -5- United States Bankruptcy Court for the District of Minnesota, Attention Barbie Montez at the following address: 301 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415. (ii) Sexual Abuse Proof of Claim Forms submitted by Sexual Abuse Claimants will not be available to the general public unless a Sexual Abuse Claimant affirmatively indicates his or her desire in Part 1 of the Sexual Abuse Proof of Claim Form that the Sexual Abuse Proof of Claim Form be made public. This confidentiality procedure is for the benefit of the Sexual Abuse Claimants. Accordingly, Sexual Abuse Claimants may elect to make any of the information contained in a Sexual Abuse Proof of Claim Form public, even if they elected to file the Sexual Abuse Proof of Claim Form confidentiality. (iii) Sexual Abuse Proof of Claim Forms submitted by Sexual Abuse Claimants shall be held and treated as confidential by the Archdiocese and its counsel and upon request to the parties listed below (the “Permitted Parties”), subject to each Permitted Party executing and returning to the Archdiocese’s counsel a confidentiality agreement, and to such other persons as the court determines; provided, however, that all parties with access to the Sexual Abuse Proof of Claim Forms shall agree to keep the information provided in a Sexual Abuse Proof of Claim Form confidential (unless the Sexual Abuse Claimant elects otherwise in Part 1 of the Sexual Abuse Proof of Claim Form). (iv) The Permitted Parties include: (a) counsel for the Archdiocese; (b) officers and employers of the Archdiocese who are necessary to assist the Archdiocese and its counsel address issues with respect to Sexual Abuse Claims; (c) counsel for the committee of unsecured creditors; (d) insurance companies or their successors, including any authorized claim administrators of such insurance companies, that issued or allegedly issued polices to the Archdiocese and their reinsurers and attorneys; (e) any future claims representative appointed by the court in this Chapter 11 case; (f) any mediator, special arbitrator or claims reviewer appointed by the court, including Retired Judge Arthur Boylan, to review and resolve the Sexual Abuse Claims; (g) any trustee appointed to administer payments to Sexual Abuse Claimants; (h) authorized representatives of a department of corrections with respect to a Sexual Abuse Claim by a Sexual Abuse Claimant who is incarcerated but only to the extent such disclosure is authorized under applicable non-bankruptcy law; (i) members of the committee of unsecured creditors and their personal counsel (after the Sexual Abuse Proof of Claim Form has been redacted to remove the Sexual Abuse Claimant’s name, address and any other information identified in Part 2(A) of the Sexual Abuse Proof of Claim Form and the signature block); (j) law enforcement in the city or county where the Sexual Abuse Claim arose; (k) auditors of the United States Conference of Catholic Bishops charged with preparing annual audits of Archdiocesan compliance with the Charter for the Protection of Children and Young People; and (l) such other persons as the court determines should have the information in order to evaluate Sexual Abuse Claims only upon a motion by the Archdiocese or the committee of unsecured creditors. -6- 17. Permitted Parties and their attorneys shall be authorized to review proofs of claim upon execution of a confidentiality agreement agreed upon by the Archdiocese and the committee of unsecured creditors or pursuant to further order of the court. The court may approve additional parties as Permitted Parties upon fourteen (14) days’ notice of consent by the Archdiocese and the committee of unsecured creditors of designation of a party as a Permitted Party, and lack of objection following such notice. 18. With the exception of the parties identified in paragraph 16 (iv) of this order, access to the Sexual Abuse Proof of Claim Forms extends only to the natural person who executes the confidentiality agreement. A separate confidential agreement must be signed by each natural person who seeks access to the records on behalf of a Permitted Party. TIMING AND FORM OF NOTICE 19. As soon as reasonably practicable after the entry of this order, the Clerk of Court shall serve by United States mail, first-class postage prepaid, the Non-Tort Bar Date Notice (Ex. C) and the Sexual Abuse Bar Date Notice (Ex. D) upon (a) the Office of the United States Trustee for the District of Minnesota; (b) counsel to the committee of unsecured creditors; (c) all persons and entities that have filed a notice of appearance in this case; (d) all persons and entities included in the creditor mailing matrix on file in this case; (e) all persons or entities listed in the Archdiocese’s schedules; (f) all parties to executory contracts and unexpired leases of the Archdiocese; (g) all persons and entities that have previously filed proofs of claims in this Chapter 11 case; (h) any other entities or their counsel, including governmental units, identified as entities who may have claims against the Archdiocese or its estate; and (i) such additional persons and entities as deemed appropriate by the Archdiocese. 20. As soon as reasonably practicable, but in any event no later than five business days after the entry of this order, the Archdiocese shall serve by United States mail, first-class postage -7- prepaid, the Sexual Abuse Bar Date Notice (Ex. D) on the Office of the United States Trustee, and on known Sexual Abuse Claimants who have: (i) Filed pending lawsuits against the Archdiocese alleging that they were sexually abused by clergy previously assigned to the Archdiocese; (ii) Provided to the Archdiocese under Minn. Stat. § 549.09 a written notice of claim of sexual abuse by clergy previously assigned to the Archdiocese; (iii) Contacted the Archdiocese to claim that they were sexually abused as a minor by clergy previously assigned to the Archdiocese; (iv) Are otherwise known to the Archdiocese to be a Sexual Abuse Claimant through reasonably-ascertainable records. 21. The service of the Sexual Abuse Bar Date Notice on Sexual Abuse Claimants shall be accomplished through such Sexual Abuse Claimants’ attorneys, if previously identified as counsel for such Sexual Abuse Claimant in connection with a Sexual Abuse Claim, and directly on all other known potential Sexual Abuse Claimants that have been identified and located by the Archdiocese through reasonably diligent efforts. 22. The service outlined above shall constitute service on all known creditors of the Archdiocese. All other creditors of the Archdiocese shall be deemed to be unknown for the purpose of service of notice of the bar dates. 23. The Archdiocese shall also provide notice of all bar dates established in this order by causing a copy of the Publication Notice (Ex. E) to be published as follows: (i) Publication twice (in English) in each of the following publications, with the first publication to occur within two weeks of the service of the bar date packages and the second publication to occur no later than thirty (30) days prior to the expiration of the bar dates: • National Publication: USA Today – National Edition • Catholic Publications (and their respective websites): o National Catholic Reporter (National) o The National Catholic Register (National) o Catholic Spirit (Regional) -8- • Local Publications (and their respective websites): o o o o o o o o o o o o o o o o o Minneapolis Star Tribune St. Paul Pioneer Press The Minnesota Daily Finance and Commerce Duluth News Tribune Post-Bulletin (Rochester) St. Cloud Times Brainerd Dispatch Grand Forks Herald Winona Daily News Daily Journal (Fergus Falls) Sentinel (Fairmont) The Bemidji Pioneer Crookston Daily News The Free Press (Mankato) Faribault Daily News The Journal (New Ulm) o La Prensa de Minnesota (Spanish Language) o Hmong Times (ii) In addition to the Publication Notice, the Archdiocese will send copies of the Sexual Abuse Claims Bar Date Notice to the publications listed above and to the Associated Press of Minnesota. o o o o o o o o 24. The Associated Press WCCO-AM Minneapolis Public Radio KARE - TV KMSP - TV KSPR - TV WCCO - TV Each diocese in Minnesota The Archdiocese shall provide further notice of the Sexual Abuse Claims Bar Date by taking the following measures: (i) Within 3 business days of the entry of this order, the Archdiocese will post the component parts of the Sexual Abuse Claims Bar Date Package and the Non-Tort Claims Bar Date Package on the following public website: http://www.archspm.org/; (ii) Within 3 business days of the entry of this order, the Archdiocese will provide a copy of the Publication Notice and component parts of the Sexual -9- Abuse Claims Bar Date Package to the Survivors Network of the Abused by Priests and request that it post the same on its website at www.snapnetwork.org; (iii) Within 3 business days of the entry of this order, the Archdiocese will provide a copy of the Publication Notice and component parts of the Sexual Abuse Claims Bar Date Package to Jeff Anderson and Associates P.A. and the Noaker Law Firm LLC and request that they post the same on their respective websites at www.andersonadvocates.com and http://noakerlaw.com/; (iv) The Archdiocese will maintain a toll free number which may be used by Sexual Abuse Claimants to ask questions or obtain copies of the Sexual Abuse Claim Bar Date package or parts thereof; (v) Within two weeks of the service of the Sexual Abuse Claims Bar Date Package, the Archdiocese will provide a copy of the Publication Notice and the Sexual Abuse Claims Bar Date Notice to the following offices/entities and request that each recipient publicly post such notice until the expiration of the bar dates: (a) the Minnesota Attorney General; (b) the district attorney, the county court administrator, and sheriff’s department for each of the 12 counties comprising the Region as defined in the Affidavit of the Very Reverend Charles V. Lachowitzer; (c) the Minnesota Department of Health’s three locations in the Region; (d) each hospital in the Region; and (e) each of the 187 parishes within the Region. (vi) The Archdiocese will send a letter to each parish and Catholic high school in the Region requesting that such parish or Catholic high school display the Publication Notice and Sexual Abuse Claims Bar Date Notice in a prominent location within the church or school. The letter will also request that the notices be published once a month in the parishes’ weekly bulletins until the Sexual Abuse Claims Bar Date. The letter will also request that each pastor, canonical administrator, or parochial vicar remind parishioners of the availability of information concerning the bar date. The letter will also request that parishes disseminate the Publication Notice and Sexual Abuse Claims Bar Date Notice by email to their respective distribution lists. Finally, the letter will request each Catholic high school at which a clergy member against whom a substantiated claim of sexual abuse has been made had worked to draft a letter to alumni providing notice of the case and bar date. 25. Each request described in paragraph 24 (v) and (vi) above shall be on the Archdiocese’s letterhead and signed by an officer of the Archdiocese. The request shall include a space at the bottom for the recipient to indicate whether it will comply with the request and a stamped self-addressed return envelope. The Archdiocese will report on compliance to the committee of unsecured creditors. -10- 26. The Archdiocese is authorized and empowered to take all actions necessary to implement the relief granted in this order. 27. The court retains jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, and enforcement of this order. Dated: ___________________________________ Robert J. Kressel United States Bankruptcy Judge -11-
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