Case mcr Doc 701 Filed 07/14/16 Entered 07/14/16 15:37:51 Desc Main Document Page 1 of 6

Size: px

Start display at page:

Download "Case mcr Doc 701 Filed 07/14/16 Entered 07/14/16 15:37:51 Desc Main Document Page 1 of 6"

Jemimah Harmon
5 years ago
Views:

1 Main Document Page 1 of 6 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF NEW YORK In re: COYNE INTERNATIONAL ENTERPRISES CORP. Debtor. Chapter 7 C.A. No MCR AFFIRMATION IN SUPPORT OF JOINDER IN MOTIONS BY CENTRAL STATES PENSION FUND, NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND AND NEW ENGLAND TEAMSTERS AND TRUCKING INDUSTRY PENSION FUND FOR A RULE 2004 EXAMINATION OF THOMAS M. COYNE MARK I. SILBERBLATT, an attorney duly admitted to practice before this Court and the courts of the State ofnew York, hereby affirms under penalty of perjury, as follows: 1. I am of counsel to the law firm of Bisceglie & Associates, PC, counsel for the Upstate New York Bakery Drivers and Industry Pension Fund ("Bakery Drivers Fund", one of the unsecured creditors of debtor Coyne International Enterprises Corp. ("Debtor" in this proceeding. 2. The Bakery Drivers Fund is a multiemployer pension plan within the meaning of sections 3(27 and 4001(2(3 of the Employee Retirement Income Security Act of 1974 ("ERISA", 29 U.S.C (37 and 1301 (a(3. Pursuant to one or more collective bargaining agreements between Debtor and a local union affiliated with the International Brotherhood of Teamsters, Debtor was required to remit contributions to the Fund. 3. On information and belief: Several other multiemployer pension plans to which Debtor was required to remit contributions are also unsecured creditors of Debtor. Such plans 1

2 Main Document Page 2 of 6 include three pension plans -- the Central States, Southeast and Southwest Areas Pension Fund ("Central States Fund", the New York State Teamsters Conference Pension & Retirement Fund ("NY State Fund" and the New England Teamsters and Trucking Industry Pension Fund ("New England Fund" (collectively, the "Movant Funds" -- which have now made separate motions (the "Rule 2004 Motions" for Rule 2004 examinations of a principal of Debtor, Thomas M. Coyne, and for the production by Mr. Coyne, in advance of any such examination, of specified documents. All of these motions are returnable on August 4, See Docket Nos. 690, 695 and This affirmation is submitted in support of the Bakery Drivers Fund's joinder in the Rule 2004 Motions and in support of its request that any order granting such an examination specifically provide that the Bakery Drivers Fund shall have the right to participate in any Rule 2004 examination order by the Court and shall also have access to any document production that the Court orders. Background 5. As noted above, the Bakery Drivers Fund is a multiemployer fund into which Debtor was required to make contributions pursuant to a collective bargaining agreement between Debtor and a union affiliated with the International Brotherhood of Teamsters. 6. On or about November 16, 2015 the Bakery Drivers Fund filed a proof of claims in Debtor's Chapter 11 bankruptcy proceeding for $720, on account of money which was due or which would become due by reason of Debtor's withdrawal from the Bakery Drivers Fund and Debtor's resulting obligation to pay withdrawal liability pursuant to Sections 4201, 4203 and 4219 (b(l oferisa. 2

3 Main Document Page 3 of 6 7. On information and belief, the Movant Funds also filed proofs of claims in Debtor's Chapter 11 proceeding on account of money which was due, or which would become due, by reason of Debtor's obligation to pay withdrawal liability pursuant to Sections 4201, 4203 and 4219 (b(l oferisa. 8. Pursuant to this Court's Order of December 23, 2015, Debtor's Chapter 11 bankruptcy case was converted to a Chapter 7 case, effective February 26, On information and belief, and as set out in the Rule 2004 Motions, the maximum amounts that Movant Funds and the Bakery Drivers Fund are likely to recover from Debtor in this proceeding are an extremely small fraction of their respective claims, less than one cent on the dollar. The Movant Funds' Rule 2004 Motions and the Bakery Drivers Fund's Joinder Therein 10. As set out in the Rule 2004 Motions, under the Multiemployer Pension Plan Amendments Act ("MPPAA", 29 U.S.C , there are other persons or entities that are jointly and severally liable for Debtor's withdrawal liability. In particular, members of a controlled group, as defined by MPP AA - i.e. all trades or businesses under common control -- are treated as a single employer for the purpose of assessing and collecting withdrawal liability, and each such trade or business is jointly and severally liable for withdrawal liability. 11. On information and belief, and as set out in the Rule 2004 Motions, Thomas M. Coyne (personally and/or through his trust owned 100% of Debtor and, as such, is believed to have significant knowledge of Debtor's affairs and other trades and businesses that were under common control with Debtor. 3

4 Main Document Page 4 of For that reason, in separate motions each of the Movant Funds has sought a Rule 2004 examination of Mr. Coyne and has also sought the production, at least 21 days prior to. such deposition, of specified documents so that such documents might be used in connection with such deposition. 13. Although the amount that is owed to the Bakery Drivers Fund on account of withdrawal liability is much less than the amounts owed to the Movant Funds, the Bakery Drivers Fund has the same interest that each of the Movant Funds have in securing a Rule 2004 examination of Mr. Coyne and the production of relevant documents prior to that examination. 14. Accordingly, although in the interest of judicial efficiency the Bakery Drivers Fund is not making a separate Rule 2004 motion, the Bakery Drivers Fund is hereby joining in each of the Rule 2004 Motions made by the Movant Funds, and hereby requests that this Court grants the relief requested therein (including the ordering of a deposition of Mr. Coyne and the production of documents at least 21 prior to such deposition. 15. If the Court grants the relief requested by the Movant Funds, the Bakery Drivers Fund respectfully requests that any order specifically provide that the Bakery Drivers Fund is entitled to access to any documents produced and is entitled to participate in any deposition of Mr. Coyne. WHEREFORE the Upstate New York Bakery Drivers and Industry Pension Fund joins in the motions by the Central States, Southeast and Southwest Areas Pension Fund, the New York State Teamsters Conference Pension & Retirement Fund and the New England Teamsters and Trucking Industry Pension Fund for a Rule 2004 examination of Thomas M. Coyne, and 4

5 Main Document Page 5 of 6 respectfully requests that such motions be granted in all respects and that the New York Bakery Drivers and Industry Pension Fund be allowed to participate in any such deposition. Dated: July 14, 2016 ~/~w~ Mark I. Silberblatt Bar ID No Bisceglie & Associates, P.C. Attorneys for Upstate New York Bakery Drivers and Industry Pension Fund 112 Madison Avenue, 10th Floor New York, NY ( mark@bisceglieassociates.com 5

6 Main Document Page 6 of 6 CERTIFICATE OF SERVICE I, Mark I. Silberblatt, one of the attorneys for the Upstate New York Bakery Drivers and Industry Pension Fund, certify that on July 14, 2016, I served the foregoing Affirmation in Support of Joinder in Motions by Central States Pension Fund, New York State Teamsters Conference Pension and Retirement Fund and Teamsters and Trucking Industry Pension Fund for a Rule 2004 Examination of Thomas M. Coyne, on all parties indicated on the electronic filing receipt via the Court's electronic filing system. Dated: July 14, 2016 Mark I. Silberblatt Bar ID No Bisceglie & Associates, P.C. Attorneys for Upstate New York Bakery Drivers and Industry Pension Fund 112 Madison Avenue, 10th Floor New York, NY ( mark@bisceglieassociates.com 6

Information & Instructions: Response to a Motion To Lift The Automatic Stay Notice and Proof of Service

Defense Or Response To A Motion To Lift The Automatic Stay Information & Instructions: Response to a Motion To Lift The Automatic Stay Notice and Proof of Service 1. Use this form to file a response to