solyndra court filing

8/4/2019 Solyndra court filing

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IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE

In re:Chapter 11)Solyndra LLC, et al., 1Case No.: 11-12799 (MFW))) (Jointly Administered)Debtors.APPLICATION OF THE DEBTORS PURSUANT TO SECTION 327(e)OF THE BANKRUPTCY CODE, RULE 2014 OF THE FEDERALRULES OF BANKRUPTCY PROCEDURE AND LOCAL RULE 2014-1FOR AUTHORIZATION TO EMPLOY AND RETAIN McDERMOTT WILL & EMERYAS SPECIAL COUNSEL FOR THE DEBTORS AND

DEBTORS IN POSSESSION NUNC PRO TUNCTO THE PETITION DATE

The ab ove-captioned deb tors and debtors in possession (collectively, the"Debtors") hereb y seek e ntry of an order pursuant to section 327(e) of title 11 of the UnitedStates Code (the "Bankruptcy Code"), Rule 2014(a) of the Federal Rules of BankruptcyProcedure (the "Bankruptcy Rules") and Rule 2014-1 of the Local Rules of the Un ited StatesBankruptcy Court for the District of Delaware (the "Local Rules" or "Del. Bankr. LR")authorizing the Debtors retention and employment of McDermott Will & Emery ("McDermott"or the "Firm") as counsel for the Deb tors nunc pro tunc to the Petition Date (the "Application").In support of the Application, the Debtors rely on (i) the Statement Under Rule 2016 of theFederal Rules of Bankruptcy Procedure and Section 329 of the Bankruptcy Code, and (ii) theAffidavit of David D . Ransom in Sup port ofApplication of the Debtors Pursuant to Section32 7(e) of the Bankruptcy Code, Rule 2014 of the Federal Rules of Bankruptcy Procedure an d

The Debtors in these proceedings and the last four digits of each Debtors federal taxpayer identification numberare as follows: Solyndra LLC (9771) and 360 Degree Solar Holdings, Inc. (5583). The Debtors address is 47488Kato Road, Fremont, CA 94538.


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Local Rule 2014-1 for Authorization to Employ and Retain McD ermott Will & Emery as SpecialCounsel for the Debtors and Debtors in Possession Nunc Pro Tunc to the Petition Date (the"Ransom Affidavit"), which are being submitted concurrently with the Application. In supportof this Application, the Deb tors respectfully represent as follows:

JiiriIhtinn

1. This Court has jurisdiction over this Motion pursuant to 28 U .S.C. 15 7and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper beforethis Court pursuant to 28 U.S.C. 1408 and 1409.

2. The statutory bases for the relief sought h erein are sections 327(e), 330and 331 of the Bankruptcy code and Bankruptcy Rule 2014(a).

Background3. On Se ptember 6, 2011 (the "Petition Date"), the Debtors commenced

these cases by filing voluntary petitions for relief under chap ter 11 of the Ban kruptcy Code .4. The factual background relating to the Deb tors, including their current and

historical business operations and the e vents precipitating their chapte r 11 filings, are set forth indetail in the Declaration of W G. Bill Stover, Jr., Senior Vice President and Chief FinancialOfficer, in Support of First Day M otions (the "Stove r Declaration") filed concurrently with thisApplication and incorporated herein by reference. 2

5. Although the Debtors manufacturing operations have been discontinuedwh ile the com pany evaluates its restructuring options, the D ebtors are continuing in possession

2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Stover Declaration.

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of their property and are managing their business as debtors in possession, pursuant to sections1107 and 1108 of the Bankruptcy Code.

6. No request has been made for the appointmen t of a trustee or an exam inerin this case, and no official committee has yet been appointed by the Office of the Un ited StatesTrustee.

Relief Requested7. By this Application, the Debtors seek to employ and retain McD ermott as

their special counsel with regard to governmental investigations of the Debtors and h earings inconnection with those investigations, and litigation and p roceedings involving the D ebtorsrelated to such investigations and hearings. Accordingly, the Debtors respectfully request theentry of an order pursuant to section 327(e) of the Bank ruptcy Code, Bank ruptcy Rule 2014 an dLocal Rule 201 4-1 authorizing them to employ an d retain McD ermott as their special counselunder a general retainer to perform the legal services that will be n ecessary during these chapter11 cases, pursuant to the terms set forth in this Application and the Ransom Affidavit, nunc protunc to the Petition Date.

8. The D ebtors seek to retain McD ermott as their special counsel because ofthe Firms extensive experience and knowledge in areas in which the Firm will be engaged. Inpreparing for its representation of the D ebtors in these cases, McDerm ott has becom e familiarwith the present investigations and the Debtors businesses and affairs and many of the potentiallegal issues that may arise in the context of those investigations and potential litigation.


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9 .ubject to Court approval in acco rdance with section 330(a) of theBankruptcy Co de, compensation will be payable to McDermo tt on an hourly basis, plusreimbursement of actual, necessary expenses and other charges incurred by McDermott. Theprincipal attorneys and paralegals presently designated to represent the Debtors and their currentstandard hourly rates are:

a. William F. Weld825.00b. Stephen M . Ryan775.00C.avid D. Ransom525.00d. Gene Litvinoff525.00e. Jon P. Decker425.0010.he hou rly rates set forth abov e are subject to p eriodic adjustments toreflect economic and other conditions. Other attorneys and paralegals may from time to time

serve the Debtors in connection w ith the matters described herein.11.he hourly rates set forth above are McDermotts standard hourly rates forwork of this nature. These rates are set at a level designed to fairly compensate McDermott forthe work of its attorneys and paralegals and to cover fixed and routine overhead expenses. It isMcDermotts policy to charge its clients in all areas of practice for all other expenses incurred in

connection with the clients case. The expenses charged to clients include, among other things,conference call charges, mail and express mail charges, special or hand delivery charges,documen t retrieval charges, photocopying charges, charges for mailing supplies (including,without limitation, envelopes and labels) provided by M cDermott to ou tside copying services for

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use in mass mailings, travel expenses, expenses for "working meals," computerized research, andtranscription costs, as well as no n-ordinary overhead expenses such as secretarial and other

overtime. McDermott will charge the Debtors for these expenses in a manner and at ratesconsistent with charges made generally to McDermotts other clients. McDermott believes thatit is fairer to charge these expenses to the clients incurring them than to increase the h ourly ratesand spread the expenses amo ng all clients.

12.he professional services that M cDermott w ill render to the Debtorsinclude, but shall not be limited to, the following:

a. providing legal advice to the D ebtors with respect togovernmental investigations of the Debtors and hearings in connection with thoseinvestigations, and litigation and proceedings against the D ebtors related to such investigationsand hearings;

b. preparing on b ehalf of the D ebtors necessary reports, applications,motions, answers, orders, and o ther legal papers;

C.ppearing at h earings related to any such investigations, litigationor proceedings; andd.uch other services as may be specifically directed by the D ebtors

that may b e necessary and proper w ith respect to any such investigations, litigation orproceedings.

13 .cDermott represented the D ebtors as special counsel prior to the PetitionDate. To the best of the Debtors knowledge, except as otherwise disclosed in the Ransom5


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Affidavit submitted concurrently herewith, M cDermott has no t represented the Debtorscreditors, equity security holders, or any other parties in interest, or their respective attorneys, in

any m atter relating to the D ebtors or their estates.14. To the best of the Debtors knowledge, McDermott does not hold or

represent any interest adverse to the Debtors estates, McDermott is a "disinterested person" asthat phrase is defined in section 101(14) of the Bankruptcy Code, and McDermotts employmentis necessary and in the best interests of the Debtors and their estates.

15. McD ermott has received payments from the Debtors during the year priorto the Petition Date in the am ount of $23 ,829.60 in connection w ith its prepetition representationof the Debtors. McDermott will waive any amounts that it is owed by the Debtors for prepetitionservices provided to the Debtors.

16. The Debtors understand that M cDermott hereafter intends to apply to theCourt for allowances of compensation and reimbursem ent of expenses in accordance with theapplicable provisions of the Bankruptcy C ode, the Bankruptcy R ules, the Local Rules and ordersof this Court for all services performed and expenses incurred after the Petition Date.

17. The Debtors, subject to the provisions of the Bank ruptcy Code, theBankruptcy R ules, the Local Rules and further orders of this Court, propose to pay McD ermottits customary hourly rates for services rendered that are in effect from time to time, as set forth inthe Ransom Affidavit, and to reimburse M cDermott according to its customary reimbursementpolicies, and submit that such rates are reasonable.


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Notice18. Notice of this Motion has been or will be given to the following parties or,

in lieu thereof, to their counsel, if know n: (i) the Office of the U nited States Trustee; and (ii) theDebtors prepetition lenders; (iii) the creditors listed in the Consolidated List of CreditorsHolding 35 Largest Unsecured Claims; and (iv) those persons who have requested noticepursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure. The Debtors submit that,in light of the nature of the relief requested, no other or further notice need be g iven.

No Prior Request19. No p rior request for the relief sought in this Motion has been m ade to this

Court or any other court.W HER EFOR E, the Debtors respectfully request that the Court grant the

Application in all respects, and grant such other and further relief it deems just and proper.Dated: September ", 2011ACHULSKI STANG ZIEHL & JONES LLP

Richard M. Pachuiski (CA Bar No. 90073)Debra I. Grassgreen (CA Bar No. 169978)Bruce Grohsgal (DE B ar No. 3583)Joshua M. Fried (CA Bar No. 18154 1)919 North Market Street, l7" FloorP.O. Box 8705Wilmington, DE 19899-8705 (Courier 19801)Telephone: (302) 652-4100Facsimile: (302) 652-4400E-mail:[email protected]@[email protected]@pszjlaw.com[Proposed] Counsel for the Debtors andDebtors in Po ssession7


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In re:Solyndra LLC, et al. , ))Debtors. Chapter 11Case No.: 11-12799 (MFW)(Jointly Administered)STATEMENT UNDER RULE 2016 OF THE FEDERAL RULES OFBANKRUPTCY PROCEDURE AND SECTION 329 OF THE BANKRUPTCY CODE

McDermott Will & Emery ("McDermott") pursuant to Rule 2016 of theFederal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and section 329 of chapter 11of title 11 of the United States Code (the "Bankruptcy Code"), states that the undersigned iscounsel to the above-captioned debtors and debtors in possession (the "Debtors") in these cases.

2. Compe nsation agreed to be paid by the D ebtors to McDermott is for legalservices to be rendered in connection with these cases. The Debtors have agreed to payMcD ermott for the legal services rendered or to be rendered by its various attorneys, paralegals,and case management assistants in connection with these cases on the Debtors behalf. TheDebtors also have agreed to reimburse McD ermott for its actual and necessary expenses incurredin connection with these cases.

3. McD ermott has received payments from the Debtors during the year priorto the Petition Date in the amount of $23,829.60 in connection with the preparation of initial



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documents and its prepetition representation of the Debtors. McDermott will waive any amountsthat it is owed by the Deb tors for prepetition services provided to the Debtors.

4. McD ermott will seek approval of payment of compensation upon thefiling of ap propriate applications for allowance of interim or final comp ensation pursuant tosections 330 and 331 of the Bankruptcy C ode, the Bankruptcy Rules, the Local Rules of theUnited States Bankruptcy C ourt for the District of Delaware, and orders of this Court.

5. The services to be rendered include all those services set forth in theApplication of the Debtors for an Order Pursuant to Section 32 7(e) of the Bankruptcy Code,Rule 2014 of the Federal Rules ofBankruptcy Procedure and Local Rule 2014-1 Authorizing theEmployment and Retention ofMcD ermott Will & Em ery as Special Counsel to the Debtors andDebtors in Possession Nunc P ro Tunc to the Petition Date, submitted concurrently herewith.

6. McD ermott further states that it has neither shared nor ag reed to share(a) any com pensation it has received or m ay receive with another party or person, other than w iththe partners, of counsel, and associates of McD ermott, or (b) any com pensation another personor party has received or may have received.Dated: September /0l 1DERMOTT WILL & EMERYDavid D. Ransom (DC Bar No. 986913)600 13 t h Street, N.W .

Washington, D.C.20005-3096Telephone: 202-756-8089Facsimile: 202-756-8087E-mail: dransom@ mwe.com[Proposed] Special Counsel for the Debtors andDebtors in Possession


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In re:Chapter 11)SolyndraLLC,etal., 1CaseNo.: 11-12799( ))) (Jointly Administered)Debtors.AFFIDAVIT OF DAVID D. RANSOM IN SUPPORT OFAPPLICATION OF THE DEBTORS PURSUANT TO SECTION 327(e)OF THE BANKRUPTCY CODE, RULE 2014 OF THE FEDERALRULES OF BANKRUPTCY PROCEDURE AND LOCAL RULE 2014-1FOR AUTHORIZATION TO EMPLOY AND RETAIN McDERMOTT WILL & EMERY

AS SPECIAL COUNSEL FOR THE DEBTORS ANDDEBTORS IN POSSESSION NUNC PRO TUNCTO THE PETITION DATE

DA VID D . RANSOM , ESQUIRE, being duly sworn, deposes and says:I am a partner in the firm of McDermott Will & Emery ("McDermott" or

the "Firm"), located at 600 1 3 t h Street, N.W., Washington, D.C. 20005-3096, and have been dulyadmitted to practice law in the District of Columbia. This Affidavit is submitted in support ofthe Application of the Debtors Pursuant to Section 327(e) of the Bankruptcy Code, Rule 2014 ofthe Federal Rules of Bankruptcy Procedure and Local Rule 2014 -1 for Authorization to Emp loyand Retain McDermott Will & Emery as Special Counsel for the Debtors and Debtors inPossession Nunc Pro Tunc to the Petition Date (the "Application"), which is being submittedconcurrently herewith.



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2. The Firm con sists of approximately 1,100 attorneys with a generalpractice. The Firms attorneys have extensive experience representing clients in the areas in

which it is proposed to be engaged.3. Neither I, the Firm, nor any partner, of counsel o r associate thereof,

insofar as I have been able to ascertain, has any co nnection with the ab ove-captioned debtors(collectively, the "Debtors"), their creditors or any other parties in interest herein, or theirrespective attorneys, except as set forth below .

4. McD ermott was employed by the Debtors prepetition with respect toresponding to C ongressional investigations.

5. McD ermott has no cu rrent conflicts of interest in this case, as it does notrepresent any creditors in the instant case. McDermott does, however, have current clientrelationships with the following creditors in matters unrelated to this case:

Pacific Gas & ElectricHoward H ughes Medical CenterAMP Private CapitalAMCORDow C orningCMEA VenturesEnergy Future Holdings and First Data Corp., subsidiaries of KKR & Co.HSH NordbankPlainfield Asset Managem ent

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6 .cDermott has w orked with m any professionals, sometimes representingthe same clients, clients with similar interests and clients with adverse interests in cases and m ayhave worked with other professionals to be employed by the Debtors in these Cases. McDermottwill work cooperatively with such professionals on behalf of the Debtors. McDermott hasassured the Debtors that it will work closely w ith any such p rofessionals to take care not toduplicate efforts in these Cases.

7. McD ermott and certain of its partners, of counsel and associates may hav ein the past represented, and m ay currently represent and likely in the future will representcreditors of the D ebtors in connection with m atters unrelated to the Deb tors and these cases.McD ermott will be in a position to identify with specificity any such p ersons or entities whenlists of all creditors of the D ebtors have been review ed and w ill make any further disclosures asmay be appropriate at that time.

8. McDermott is a "disinterested person" as that term is defined insection 101(14) of title 11 of the United States Code (the "Bank ruptcy Code") in thatMcD ermott, its partners, of counsel and associates:

a. are not creditors, equity security holders or insiders of theDebtors;

b. are not and were not, within 2 years before the date of the filing ofthe petitions, a director, officer or employee of the D ebtors; and


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C.o not have an interest materially adverse to the interest of theestates or of any class of creditors or equity security holders, by reason of any direct or indirect

relationship to, connection w ith, or interest in, the D ebtors, or for any other reason.9. To the best of my knowledge, neither I, nor any partner, of counsel or

associate of McDerm ott, insofar as I have been able to ascertain, has any connection with theU.S. Trustee or any person em ployed in the office of the U.S. Trustee or any Bankruptcy Judgecurrently serving on the United States Bankruptcy Co urt for the District of Delaware.

10. McD ermott has received payments from the Deb tors during the year priorto the Petition Date in the am ount of $23 ,829.60 in conn ection with its prepetition representationof the Debtors. McDermott will waive any amounts that it is owed by the Debtors for prepetitionservices provided to the Debtors.

11. McD ermott intends to apply for com pensation for professional servicesrendered in connection with these chap ter 11 cases, subject to approval of this Cou rt and incompliance with applicable provisions of the Bankruptcy C ode, on an ho urly basis, plusreimbursement of actual, necessary expenses and other charges incurred by the Firm. Theprincipal attorneys and paralegals designated to represent the Debtors and their current standardhourly rates are:

a. William F. Weld825.00b. Stephen M . Ryan775.00C.avid D. Ransom525.00d.ene Litvinoff525.004


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Jon P. Decker425.0012. The hou rly rates set forth above are subject to periodic adjustments toreflect economic and other conditions. Other attorneys and paralegals may from time to timeserve the Debtors in connection w ith the matters herein described.

13. The hourly rates set forth above are the Firms standard hourly rates forwork of this nature. These rates are set at a level designed to fairly compensate the Firm for thework of its attorneys and paralegals and to cover fixed and routine overhead expenses. It is theFirms policy to charge its clients in all areas of practice for all other expenses incurred inconnection with the clients case. The expenses charged to clients include, among other things,conference call and telecopier toll and other ch arges, mail and ex press mail charges, special orhand delivery charges, docum ent retrieval charges, photocopying charges, charges for mailingsupplies (including, without limitation, envelopes and labels) provided by the F irm to outsidecopying services for use in mass mailings, travel expenses, expenses for "working meals,"transcription costs, as well as non-ordinary ov erhead expenses such as secretarial and otherovertime. The Firm will charge the Debtors for these expenses in a manner and at ratesconsistent with charges made generally to the Firms other clients. The Firm believes that it isfairer to charge these expenses to the clients incurring them than to increase the hourly rates andspread the expenses am ong all clients.

14. No promises have been received by the Firm or by any partner, ofcounsel or associate thereof as to compensation in conn ection with this case other than inaccordance with the provisions of the Bankruptcy Code. The Firm has no agreement with any

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other entity to share with such entity any compensation received by the Firm in co nnection withthese chapter 11 cases, except amon g the partners, of counsel and associates of the F irm.

C- o- ~ a / I F t -David D. RansomDated: September /- , 2011SWORN TO AND SUBSCRIBED before methis I S day of September, 20 11

JarnmL . /frn&naNotary PublicMy Commission Expires: 3IIie. 1 4,2D I t o

C; ~190

: :.


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In re:Chapter 11)Solyndra LLC, et al., Case No.: 11-12799 (MFW))) (Jointly Administered)Debtors. Related Docket No.-ORDER UNDER SECTION 327(e) OF THE BANKRUPTCY CODE ANDRULE 2014 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDUREAND LOCAL RULE 2014-1 AUTHORIZING THE EMPLOYMENT AND RETENTIONOF McDERMOTT WILL & EMERY AS SPECIAL COUNSEL FOR THE DEBTORS

AND DEBTORS IN POSSESSION NUNC PRO TUNC TO THE PETITION DATE

Upon the application (the "Application") 2 of the above-captioned debtors anddebtors in possession (collectively, the "Debtors"), seeking authorization to employ and retainMcDermott Will & Emery ("McDermott" or the "Firm") as special counsel for the Debtors; andupon (i) the Statement Under Rule 2016 of the Federal Rules of Bankruptcy Procedure andSection 329 of the Bankruptcy Code (the "Statement"), and (ii) the Affidavit of David D . Ransomin Support ofApplication of the Debtors Pursuant to Section 32 7(e) of the Bankruptcy Code,Rule 2014 of the Federal Rules of Bankruptcy Procedure and Local Rule 2014-1 forAuthorization to Employ and Retain McDermott Will & Emery as Special Counsel for theDebtors and Debtors in Possession Nunc Pro Tunc to the Petition Date (the "RansomAffidavit"), which were sub mitted concurrently with the Application; and the C ourt being

The Debtors in these proceedings and the last four digits of each Debtors federal taxpayer identification numberare as follows: Solyndra LLC (9771) and 360 Degree Solar Holdings, Inc. (5583). The Debtors address is 47488Kato Road, Fremont, CA 94538.2 Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the Application.


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satisfied, based on the representations made in the A pplication, the Statement and the RansomAffidavit that McDerm ott represents or holds no interest adverse to the D ebtors or the Debtors

estates with respect to the matters upon wh ich it is to be engaged, and is disinterested as thatterm is defined under section 101(14) of the Bankruptcy Code, as modified by section 1107(b) ofthe Bankruptcy Code, and that the employm ent of McDerm ott is necessary and in the bestinterests of the D ebtors and the Debtors estates; and it appearing that the C ourt has jurisdictionto consider the App lication; and it appearing that du e notice of the A pplication has been given

and no further notice need be given; and up on the proceedings before the Court; and after duedeliberation and good and sufficient cause appearing; it is

OR DER ED that the A pplication is granted; and it is furtherOR DER ED that pursuant to section 327(e) of the Bankruptcy Cod e, the Debtors

are authorized to employ and retain the Firm as special counsel for the purposes set forth in theApplication, effective nunc pro tunc to the Petition Date, on the terms set forth in theApplication, the Statement and the Ransom Affidavit; and it is further

OR DER ED that the Firm shall file applications and be com pensated inaccordance with sections 330 and 331 of the Bankruptcy Cod e, the Bankruptcy Rules, the LocalRules, and such other procedures as may b e fixed by order of this Court.

Dated: September2011 The Hon orable Mary F. WalrathUnited States Bankruptcy Judge2

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