Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 1 of 11

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1 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 1 of 11 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW JERSEY Caption in compliance with D.N.J. LBR (c) KROLL HEINEMAN CARTON LLC CHAPTER 11 Seth Ptasiewicz (SP8875) HONORABLE GLORIA M. BURNS Metro Corporate Campus I CASE NO (GMB) 99 Wood Avenue South (Jointly Administered) Iselin, NJ Telephone: Facsimile: Hearing Date and Time: sptasiewicz@krollfirm.com June 23, 2014 at 11:30 a.m. Counsel for the International Union of Operating Engineers Local 68 Pension Fund and the New Jersey Carpenters Pension Fund IN RE: RIH ACQUISITIONS NJ, LLC, et al., Debtors-in-Possession. JOINT RESPONSE OF INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 68 PENSION FUND AND NEW JERSEY CARPENTERS PENSION FUND TO DEBTORS FIRST OMNIBUS OBJECTION (SUBSTANTIVE) TO WITHDRAWAL LIABILITY CLAIMS ORAL ARGUMENT REQUESTED The International Union of Operating Engineers Local 68 Pension Fund ( Local 68 Pension Fund ) and the New Jersey Carpenters Pension Fund ( Carpenters Pension Fund )(sometimes collectively referred to herein as the Funds ) answers the Debtors Motion Pursuant to 11 U.S.C. 502(b) and Fed.R.Bankr.P for Entry of an Order Granting the Debtors First Omnibus Objection (Substantive) to Withdrawal Liability Claims, and in support

2 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 2 of 11 thereof respectfully answers the numbered allegations of the Motion. [The Motion relates to filed claim numbers 90 and 142 in case and claim number 91 in case ] 1 INTRODUCTION AND JURISDICTION 2 1. Admitted as to submission of the objection and filing of the Local 68 Fund s claim in Item I and the Carpenters Pension Fund claim in Item II. Answering further, both Funds have amended their claims referenced in footnotes 4 and 5 respectively to reflect that other than the withdrawal liability owed to both Funds, the Debtors owe no additional monies to said creditors. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 1 and thus deny the allegations and leave the debtors to their proof. 2. Denied as to liability and the amount of withdrawal liability. Admitted as to priority after the claim is liquidated pursuant to 29 U.S.C. 1399, Admitted as to any claims properly before the Court. BACKGROUND 4. Admitted as to filing of petition. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 4 and thus deny the allegations and leave the debtors to their proof. 5. Admitted as to the first sentence. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 5 and thus deny the allegations and leave the debtors to their proof. 6. Admitted. 1 The Funds adopt all arguments posited by the counsel to Creditor International Painters and Allied Trades Industry Pension Fund in opposition to the Debtors Motion. 2 The Funds state a continuing objection to the Debtors interpretations of statutes, rules, regulations, opinion letters and caselaw in their Motion as the cases and statutes referenced therein speak for themselves. 2

3 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 3 of Admitted. 8. Admitted as to docket entries. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 8 and thus deny the allegations and leave the debtors to their proof. 9. Admitted that, as of the petition filing date, debtors were parties to collective bargaining agreements with Local 68, International Union of Operating Engineers and the Northeast Regional Council of Carpenters that respectfully required contributions to the Local 68 Pension Fund and the Carpenters Pension Fund. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 9 and thus deny the allegations and leave the debtors to their proof 10. Admitted that debtors had an obligation to contribute to the both Funds and that that the employer under 29 U.S.C. 1301(b) including the debtors ( Employer ) withdrew from the Funds, which did not comply with 29 U.S.C Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 10 and thus deny the allegations and leave the debtors to their proof. RELIEF REQUESTED AND BASIS THEREFORE 11. Admitted that debtors object to the claims but denied that they are entitled to the relief requested. 12. Admitted that such statutes and rules exist and speak for themselves, and otherwise denied that they allow the relief requested. 13. Admitted that such statutes and rules exist and speak for themselves, and otherwise denied that they allow the relief requested. 3

4 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 4 of Admitted that such statutes and rules exist and speak for themselves, and otherwise denied that they allow the relief requested. 15. Admitted that such cases exist and speak for themselves, and otherwise denied that they allow the relief requested. 16. Denied. A. The Withdrawal Liability Claims Are Not Entitled to Priority Status under Section 507(a) (5) of the Bankruptcy Code. 17. Admitted Admitted that such cases exist and speak for themselves, and otherwise denied that they allow the relief requested. 19. Denied, except as to the existence of 29 U.S.C. 1391(b) on the proper calculation of withdrawal liability, which speaks for itself. 20. Admitted that such cases and the statute cited exist and speak for themselves, and otherwise denied that they allow the relief requested for reasons set forth in an accompanying memorandum. 21. Admitted that such cases exist and speak for themselves, and otherwise denied that they allow the relief requested for reasons set forth in an accompanying memorandum. 22. Denied. 23. Denied. 24. Admitted that In re Marcal Paper Mills, Inc., 650 F3d 311 (3d Cir. 2011) is binding precedent in this Circuit providing priority for withdrawal liability claims for reasons more fully set forth in an accompanying memorandum and otherwise denied that it allows the relief requested. 4

5 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 5 of Denied. 26. Denied. 27. Denied. 28. Admitted. 29. Admitted as to docket entries. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 29 and thus deny the allegations and leave the debtors to their proof. 30. Admitted, subject to proof of amounts paid. 3 The Funds expect to submit an amended claim asserting priority under 11 U.S.C. 507(a)(5), as well as an administrative expense claim. The contributions data to calculate a priority amount was not at hand by the bar date. 5

6 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 6 of 11 B. The Debtors Bona Fide Sale of Assets to an Unrelated Party in An Arms Length Transaction Limits Their Withdrawal Liability under ERISA and MPPAA 31. Admitted that 29 U.S.C exists and speaks for itself, but denied that it provides for or permits the relief requested absent a sale of an entire employer under 29 U.S.C. 1301(b). 32. Admitted that 29 U.S.C. 1405(a)(2) exists and speaks for itself, but denied that it provides for or permits the relief requested absent a sale of an entire employer under 29 U.S.C. 1301(b). 33. Denied (i) The Sale Was a Bona Fide Sale of Assets of All or Substantially All of the Debtors Assets. 34. Admitted that such statutes and cases exist and speak for themselves, and otherwise denied. 35. The Funds are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 35 and thus deny the allegations and leave the debtors to their proof. 36. Admitted only as to the two-day auction being conducted on December 17 and December 18, Answering further, deny knowledge or information sufficient to form a belief as to the remaining allegations contained in this paragraph of the pleading. 37. Admitted as to entry of the Order. The Order is a document which speaks for itself and any characterizations thereof inconsistent with its terms are denied. 38. Denied. (ii) The Sale Was An Arms -Length Transaction 6

7 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 7 of Admitted as to entry of the Order. The Order is a document which speaks for itself and any characterizations thereof inconsistent with its terms are denied. Answering further, the Funds are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 39 and thus deny the allegations and leave the debtors to their proof 40. Admitted as to the existence of certain public docket entries and orders but otherwise denied. (iii) The Sale Was To An Unrelated Party 41. Admitted as to the existence of this statute, which speaks for itself. 42. Admitted as to the existence of this statute, which speaks for itself. 43. The Funds are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 43 and thus deny the allegations and leave the debtors to their proof. (iv) The Debtors Are Not Undergoing Reorganization under Title 11 or Similar Provisions of State Law. 44. Admitted as to the existence of this statute and the cases cited, which speak for themselves and otherwise denied. See e.g. 11 U.S.C. 1123(a) (5) (D), (b) (4) (plan of reorganization includes a liquidating plan). 45. Admitted that such cases exist and speak for themselves, but otherwise denied that they allow the relief requested. 46. Admitted that such cases exist and speak for themselves, but otherwise denied that they allow the relief requested. 47. Admitted as to the existence of this statute, which speaks for itself but otherwise denied. 7

8 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 8 of Admitted that such cases exist and speak for themselves, but otherwise denied. See further, 29 U.S.C Denied. 50. Denied. 51. Denied. (v) The Debtors Alleged Withdrawal Liability Should be Reduced To At Most 30% of the Withdrawal Liability Claims. 52. The Funds are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 52 and thus deny the allegations and leave the debtors to their proof. 4 C. 29 U.S.C. 1405(b) Does Not Apply to the Present Case Because the Debtors Sold Their Assets 53. Admitted as to the existence of the statute, which speaks for itself but otherwise denied. See further, 11 U.S.C. 1123(a)(5)(D), (b)(4) (debtor may liquidate in Chapter 11.). 54. Denied. 55. Denied. 56. Admitted as to the existence of the statute and case cites, which speak for themselves but otherwise denied. 57. Admitted as to the existence of the statute and case cites, which speak for themselves but otherwise denied. 58. Denied. D. Assuming, Arguendo, 29 U.S.C. 1405(b) Applies to the Present Case, the Debtors satisfy the Prerequisites of Both 29 U.S.C. 1405(a) and 29 U.S.C. 1405(b) and, 4 As to the footnote to paragraph 52, the Funds expect to issue a formal demand to the full Employer when final data for a 2013 withdrawal is available with review and arbitration under 29 U.S.C. 1399, The proofs of claim were filed to protect rights under the Bankruptcy Code. 8

9 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 9 of 11 Therefore, May Elect the Limitation that Yields the Lesser of the Amounts Determined Under The Two Subsections. 59. Admitted as to the existence of the statute and case cites, which speak for themselves but otherwise denied, inter alia, absent proof that the entire employer under 29 U.S.C. 1301(b) is insolvent. 60. Denied. 61. Admitted as to the case cite, which speaks for itself. 62. Admitted as to the case cite, which speaks for itself. 63. Denied. 64. Denied. 65. Denied. 66. Admitted as to the case cites, which speaks for themselves and otherwise denied as, inter alia, the PBGC interpretation is at odds with the statute and the relevant caselaw. 67. Admitted that the PBGC Opinion Letter is a document which speaks for itself and otherwise denied. 68. Denied. 69. Denied. 70. Denied. 71. Denied. 72. Admitted as to existence of a public transcript in In re Adamar of New Jersey, Inc. The transcript is a document which speaks for itself and any characterizations thereof inconsistent with its terms are denied. 73. Denied. 74. Denied. 9

10 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 10 of 11 E. Claimants Inaccurately Calculate the Debtors Withdrawal Liability 75. Admitted as to the year ending date for the calculation of the Funds Withdrawal Liability Claim. (The Funds will be updating their claims). 76. Denied. See 29 U.S.C. 1401(a)(3). RESERVATION OF RIGHTS 77. Admitted that the debtors may seek to reserve rights but denied that they are entitled to relief except in accordance with the Bankruptcy Code and applicable rules of procedure. Claimants also reserve all rights. NOTICE 78. The Funds are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 78 and thus deny the allegations and leave the debtors to their proof. WHEREFORE, the Funds respectfully requests that the Court (1) deny the objection (2) refer the Withdrawal Liability Claims for review and arbitration with any trades or businesses under common control under 29 U.S.C to liquidate the claims, including any limitation under 29 U.S.C. 1405; (3) direct the Debtors to reserve for distribution on Withdrawal Liability Claims in the interim; (4) after the Withdrawal Liability Claims are liquidated, determine the priority and unsecured amounts thereof, and 10

11 Case GMB Doc 498 Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Main Document Page 11 of 11 (5) grant such other or further relief as is just, necessary or appropriate. Respectfully Submitted, KROLL HEINEMAN CARTON LLC Dated: June 14, 2014 /s/seth Ptasiewicz SETH PTASIEWICZ, ESQ. 11

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28 Case GMB Doc Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Certificate of Service Page 1 of 2 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW JERSEY Caption in compliance with D.N.J. LBR (c) KROLL HEINEMAN CARTON LLC CHAPTER 11 Seth Ptasiewicz (SP8875) HONORABLE GLORIA M. BURNS Metro Corporate Campus I CASE NO (GMB) 99 Wood Avenue South (Jointly Administered) Iselin, NJ Telephone: Facsimile: Hearing Date and Time: sptasiewicz@krollfirm.com June 23, 2014 at 11:30 a.m. Counsel for the International Union of Operating Engineers Local 68 Pension Fund and the New Jersey Carpenters Pension Fund IN RE: RIH ACQUISITIONS NJ, LLC, et al., Debtors-in-Possession. CERTIFICATION OF SERVICE TO THE INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 68 PENSION FUND AND NEW JERSEY CARPENTERS PENSION FUND AS TO DEBTORS FIRST OMNIBUS OBJECTION (SUBSTANTIVE) TO WITHDRAWAL LIABILITY CLAIMS ORAL ARGUMENT REQUESTED I, SETH PTASIEWICZ, of full age, upon my oath, hereby certify as follows: 1. I am an attorney at law admitted to practice before the Courts of the State of New Jersey and before this Court. I am an associate with the law firm of Kroll Heineman Carton, LLC, the attorneys of record for Creditors International Union of Operating Engineers Local 68 Pension Fund ( Local 68 Fund ) and the New Jersey Carpenters Pension Fund ( Carpenters Pension Fund )(sometimes collectively referred to herein as the Funds ). I am responsible for handling this file. As such, I am fully familiar with the facts as stated herein.

29 Case GMB Doc Filed 06/14/14 Entered 06/14/14 14:39:47 Desc Certificate of Service Page 2 of 2 2. On June 14, 2014, I caused to be served and filed via the Court s Electronic Case Filing systems the Funds opposition to Debtors Motion, together with supporting papers and exhibits. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. KROLL HEINEMAN CARTON, LLC Attorneys for Creditors International Union of Operating Engineers Local 68 Pension Fund and New Jersey Carpenters Pension Fund BY: /s/seth Ptasiewicz Seth Ptasiewicz 2