rdd Doc 185 Filed 03/26/19 Entered 03/26/19 20:51:31 Main Document Pg 1 of 14

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1 Pg 1 of 14 Hearing Date: April 16, 2019, at 10:00 a.m. (prevailing Eastern Time Objection Deadline: April 9, 2019, at 4:00 p.m.. (prevailing Eastern Time Stephen E. Hessler, P.C. James H.M. Sprayregen, P.C. Marc Kieselstein, P.C. Ross M. Kwasteniet, P.C. (admitted pro hac vice Cristine Pirro Schwarzman Brad Weiland (admitted pro hac vice KIRKLAND & ELLIS LLP John R. Luze (admitted pro hac vice KIRKLAND & ELLIS INTERNATIONAL LLP KIRKLAND & ELLIS LLP 601 Lexington Avenue KIRKLAND & ELLIS INTERNATIONAL LLP New York, New York North LaSalle Street Telephone: ( Chicago, Illinois Facsimile: ( Telephone: ( Facsimile: ( Proposed Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 WINDSTREAM HOLDINGS, INC., et al., 1 Case No (RDD Debtors. (Jointly Administered NOTICE OF HEARING ON DEBTORS MOTION FOR ORDER MODIFYING THE AUTOMATIC STAY TO PERMIT THE DEBTORS TO PROSECUTE CERTAIN PENDING MULTI-DISTRICT LITIGATION PLEASE TAKE NOTICE that on March 26, 2019, the above-captioned debtors and debtors in possession (collectively, the Debtors filed the Debtors Motion for Order Modifying the Automatic Stay to Permit the Debtors to Prosecute Certain Pending Multi-District Litigation (the Motion. A hearing (the Hearing on the Motion will be held before the Honorable Robert D. Drain, United States Bankruptcy Judge, United States Bankruptcy Court for the Southern 1 The last four digits of Debtor Windstream Holdings, Inc. s tax identification number are Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list of such information may be obtained on the website of the Debtors proposed claims and noticing agent at The location of the Debtors service address for purposes of these chapter 11 cases is: 4001 North Rodney Parham Road, Little Rock, Arkansas KE

2 Pg 2 of 14 District of New York, at the United States Bankruptcy Court for the Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, on April 16, 2019, at 10:00 a.m. (prevailing Eastern Time. PLEASE TAKE FURTHER NOTICE that any responses or objections to the relief requested in the Motion shall: (a be in writing; (b conform to the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules for the Southern District of New York, all General Orders applicable to chapter 11 cases in the United States Bankruptcy Court for the Southern District of New York, and the Interim Order Establishing Certain Notice, Case Management, and Administrative Procedures [Docket No. 57] (the Case Management Order approved by the Bankruptcy Court; (c be filed electronically with the Bankruptcy Court on the docket of In re Windstream Holdings, Inc., Case (RDD by registered users of the Bankruptcy Court s electronic filing system and in accordance with the General Order M-399 (which is available on the Bankruptcy Court s website at and (d be served so as to be actually received by April 9, 2019, 2019, at 4:00 p.m., prevailing Eastern Time, by (i the entities on the Master Service List (as defined in the Case Management Order and available on the Debtors case website at and (ii any person or entity with a particularized interest in the subject matter of the Motion. PLEASE TAKE FURTHER NOTICE that if no Objections are timely filed and served with respect to the Motion, the Debtors shall, on or after the Objection Deadline, submit to the Court an order substantially in the form annexed as Exhibit A to the Motion, which order the Court may enter with no further notice or opportunity to be heard. PLEASE TAKE FURTHER NOTICE that the Hearing may be continued or adjourned thereafter from time to time without further notice other than an announcement of the adjourned 2

3 Pg 3 of 14 date or dates at the Hearing. The Debtors will file an agenda before the Hearing, which may modify or supplement the Motion to be heard at the Hearing. PLEASE TAKE FURTHER NOTICE that a copy of the Motion may be obtained free of charge by visiting the website of Kurtzman Carson Consultants LLC at You may also obtain copies of any pleadings by visiting the Court s website at in accordance with the procedures and fees set forth therein. Dated: March 26, 2019 New York, New York /s/ Stephen E. Hessler Stephen E. Hessler, P.C. Marc Kieselstein, P.C. Cristine Pirro Schwarzman KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( and - James H.M. Sprayregen, P.C. Ross M. Kwasteniet, P.C. (admitted pro hac vice Brad Weiland (admitted pro hac vice John R. Luze (admitted pro hac vice KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Street Chicago, Illinois Telephone: ( Facsimile: ( Proposed Counsel to the Debtors and Debtors in Possession 3

4 Pg 4 of 14 Hearing Date: April 16, 2019, at 10:00 a.m. (prevailing Eastern Time Objection Deadline: April 9, 2019, at 4:00 p.m.. (prevailing Eastern Time Stephen E. Hessler, P.C. James H.M. Sprayregen, P.C. Marc Kieselstein, P.C. Ross M. Kwasteniet, P.C. (admitted pro hac vice Cristine Pirro Schwarzman Brad Weiland (admitted pro hac vice KIRKLAND & ELLIS LLP John R. Luze (admitted pro hac vice KIRKLAND & ELLIS INTERNATIONAL LLP KIRKLAND & ELLIS LLP 601 Lexington Avenue KIRKLAND & ELLIS INTERNATIONAL LLP New York, New York North LaSalle Street Telephone: ( Chicago, Illinois Facsimile: ( Telephone: ( Facsimile: ( Proposed Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 WINDSTREAM HOLDINGS, INC., et al., 1 Case No (RDD Debtors. (Jointly Administered DEBTORS MOTION FOR ORDER MODIFYING THE AUTOMATIC STAY TO PERMIT THE DEBTORS TO PROSECUTE CERTAIN PENDING MULTI-DISTRICT LITIGATION Windstream Holdings, Inc. and its debtor affiliates as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors respectfully state the following in support of this motion: Relief Requested 1. The Debtors seek entry of an order, substantially in the form attached hereto as Exhibit A (the Order modifying the automatic stay to allow the Debtors to prosecute certain 1 The last four digits of Debtor Windstream Holdings, Inc. s tax identification number are Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list of such information may be obtained on the website of the Debtors proposed claims and noticing agent at The location of the Debtors service address for purposes of these chapter 11 cases is: 4001 North Rodney Parham Road, Little Rock, Arkansas

5 Pg 5 of 14 pending multi-district litigation (as described below, pursuant to section 362(d(1 of the Bankruptcy Code. Jurisdiction and Venue 2. The United States Bankruptcy Court for the Southern District of New York (the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the Southern District of New York, dated February 1, The Debtors confirm their consent, pursuant to rule 7008 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules, to the entry of a final order by the Court in connection with this motion to the extent that it is later determined that the Court, absent consent of the parties, cannot enter final orders or judgments in connection herewith consistent with Article III of the United States Constitution. 3. Venue is proper pursuant to 28 U.S.C and The basis for the relief requested herein is section 362(d(1 of title 11 of the United States Code (the Bankruptcy Code. Background 5. The Debtors are a leading provider of advanced network communications and technology solutions for businesses across the United States. The Debtors also offer broadband, entertainment and security solutions to consumers and small businesses primarily in rural areas in 18 states. Additionally, the Debtors supply core transport solutions on a local and long-haul fiber network spanning approximately 150,000 miles and have over 11,000 employees. 6. On February 25, 2019 (the Petition Date, each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. A detailed description of certain facts and circumstances surrounding these chapter 11 cases is set forth in the Declaration of Tony Thomas, Chief Executive Officer and President of Windstream Holdings, Inc., (I in Support of 5

6 Pg 6 of 14 Debtors Chapter 11 Petitions and First Day Motions and (II Pursuant to Local Bankruptcy Rule [Docket No. 27] (the First Day Declaration, filed on the Petition Date. 7. The Debtors chapter 11 cases have been consolidated for procedural purposes only and are being jointly administered pursuant to Bankruptcy Rule 1015(b [Docket No. 56]. The Debtors continue to operate their business and manage their property as debtors in possession pursuant to sections 1107(a and 1108 of the Bankruptcy Code. On March 12, 2019, the United States Trustee for the Southern District of New York appointed the creditors committee pursuant to section 1102 of the Bankruptcy Code [Docket No. 136]. The Multi-District Litigation 8. The Debtors seek to modify the automatic stay to permit their continued prosecution of a multi-district litigation (the MDL Litigation currently pending on appeal in the Fifth Circuit Court of Appeals (the Fifth Circuit and styled as In re IntraMTA Switched Access Charges Litigation, Case No (the Appeal. The Debtors, and specifically Debtor entities Windstream Communications L.L.C., Windstream Ohio, L.L.C., and Windstream Missouri L.L.C., along with their fellow appellees (the Appellees, have already prevailed in the MDL Litigation before the United States District Court for the Northern District of Texas (the District Court (see In re: IntraMTA Switched Access Charges Litigation, Case No. 3:16- cv d, Docket No. 77 (the District Court Judgment. 9. The Appellees are local exchange carriers ( LECs, and are adverse in the MDL Litigation to appellants MCI Communications Services, Inc., Verizon Select Services Inc., and Sprint Communications Company L.P. (the Appellants. Appellants are telecommunication interexchange carriers ( IXCs. The core question in the MDL Litigation is whether the LECs can assess access charges (the Access Fees on IXCs when IXCs exchange calls with LECs 6

7 Pg 7 of 14 using the LECs originating or terminating access services, where the other terminating or originating carrier is a wireless service provider, and the call both originates and terminates within the same major trading area. 10. The Debtors and their fellow Appellees have prevailed before the District Court of the MDL Litigation, and were awarded the District Court Judgment for unpaid Access Fees. The IXCs appealed that judgment, and the Debtors, along with their fellow Appellees, are seeking to finalize the prosecution of the Appeal to lock in the benefit of the District Court Judgment. The Debtors submit that lifting the automatic stay for this limited purpose is beneficial to the Debtors estates, and is therefore appropriate and should be granted pursuant to section 362(d(1 of the Bankruptcy Code. Basis for Relief 11. The Debtors seek to modify the automatic stay to permit their continued prosecution of the MDL Litigation. It is well settled that, since the purpose of the automatic stay is to protect creditors as well as the debtor, the debtor may not waive the stay [without Bankruptcy Court approval]. Commerzanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207 (2d Cir The automatic stay may be lifted or modified for cause pursuant to section 362(d(1 of the Bankruptcy Code. Here, the circumstances weigh strongly in favor of modifying the stay to allow the Appeal of the MDL Litigation to proceed. 13. First, the relief would result in a partial or complete resolution of the MDL Litigation. It is necessary to proceed with the prosecution of the MDL Litigation so that a complete resolution can be obtained. Further, since the Debtors and their fellow Appellees have prevailed in the District Court level of the MDL Litigation, final resolution of the matters at issue in the Appeal would allow the Debtors estates to benefit from the District Court Judgment. 7

8 Pg 8 of Second, the relief will not interfere with these chapter 11 cases. To the contrary, all issues in dispute will be adjudicated under the aegis of the Fifth Circuit. Ultimately, the Debtors bankruptcy estates will benefit from finalizing the prosecution of the MDL Litigation, given the favorable District Court Judgment. 15. Third, the MDL Litigation Appeal involves a very large number of Appellees. The Debtors are only three amongst numerous Appellees in the MDL Litigation, and it would be inefficient and largely unnecessary to halt the proceedings therein and prevent the Debtors from locking in the benefit of the District Court Judgment merely on account of these chapter 11 cases. 16. Fourth, there would be no prejudice to any creditor if the Appeal was prosecuted in the Fifth Circuit. Indeed, creditors stand to benefit if the Debtors and their fellow Appellees finalize the prosecution of the MDL Litigation Appeal, lock in the benefit of the District Court Judgment, and recover the Access Fees for the benefit of their estates and stakeholders. Ultimately, the cost of prosecuting the Appeal is minimal to the Debtors, since it is shared amongst the very large number of Appellees involved. 17. For these reasons, the Debtors believe modification of the stay is appropriate here. Waiver of Bankruptcy Rule 6004(a and 6004(h 18. To successfully implement the foregoing, the Debtors request that the Court enter an order providing that notice of the relief requested herein satisfies Bankruptcy Rule 6004(a and that the Debtors have established cause to exclude such relief from the 14-day stay period under Bankruptcy Rule 6004(h. Reservation of Rights 19. Nothing contained in this motion or any actions taken pursuant to any order granting the relief requested by this motion is intended or should be construed as (a an admission as to the validity of any particular claim against the Debtors, (b a waiver of the Debtors rights to 8

9 Pg 9 of 14 dispute any particular claim on any grounds, (c a promise or requirement to pay any particular claim, (d an implication or admission that any particular claim is of a type specified or defined in this motion or any order granting the relief requested by this motion, (e a request or authorization to assume any agreement, contract, or lease pursuant to section 365 of the Bankruptcy Code, (f a waiver or limitation of the Debtors rights under the Bankruptcy Code or any other applicable law, or (g a concession by the Debtors that any liens (contractual, common law, statutory, or otherwise satisfied pursuant to this motion are valid, and the Debtors expressly reserve their rights to contest the extent, validity, or perfection or seek avoidance of all such liens. If the Court grants the relief sought herein, any payment made pursuant to the Court s order is not intended and should not be construed as an admission as to the validity of any particular claim or a waiver of the Debtors rights to subsequently dispute such claim. Motion Practice 20. This motion includes citations to the applicable rules and statutory authorities upon which the relief requested herein is predicated and a discussion of its application to this motion. Accordingly, the Debtors submit that this motion satisfies Local Rule (a. Notice 21. The Debtors have provided notice of this motion to: (a the entities on the Master Service List (as defined in the Case Management Order and available on the Debtors case website at and (b any person or entity with a particularized interest in the subject matter of this motion. The Debtors respectfully submit that no other or further notice is necessary. No Prior Request 22. No prior request for the relief sought in this motion has been made to this or any other court. 9

10 Pg 10 of 14 WHEREFORE, the Debtors respectfully requests that the Court enter the Order granting the relief requested herein and such other relief as the Court deems appropriate under the circumstances. Dated: March 26, 2019 New York, New York /s/ Stephen E. Hessler Stephen E. Hessler, P.C. Marc Kieselstein, P.C. Cristine Pirro Schwarzman KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( and - James H.M. Sprayregen, P.C. Ross M. Kwasteniet, P.C. (admitted pro hac vice Brad Weiland (admitted pro hac vice John R. Luze (admitted pro hac vice KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Street Chicago, Illinois Telephone: ( Facsimile: ( Proposed Counsel to the Debtors and Debtors in Possession

11 Pg 11 of 14 Exhibit A Proposed Order

12 Pg 12 of 14 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 WINDSTREAM HOLDINGS, INC., et al., 1 Case No (RDD Debtors. (Jointly Administered ORDER MODIFYING THE AUTOMATIC STAY TO PERMIT THE DEBTORS TO PROSECUTE CERTAIN PENDING MULTI-DISTRICT LITIGATION Upon the motion (the Motion 2 of the above-captioned debtors and debtors in possession (collectively, the Debtors for entry of an order (this Order modifying the automatic stay to permit the Debtors to prosecute certain pending multi-district litigation, all as more fully set forth in the Motion; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the Southern District of New York, dated February 1, 2012; and that this Court may enter a final order consistent with Article III of the United States Constitution; and this Court having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C and 1409; and this Court having found that this is a core proceeding pursuant to 28 U.S.C. 157(b; and this Court having found that the Debtors notice of the Motion and opportunity for a hearing on the Motion were appropriate under the circumstances and no other notice need be provided; and this Court having reviewed the Motion and having heard the statements in support of the relief 1 The last four digits of Debtor Windstream Holdings, Inc. s tax identification number are Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list of such information may be obtained on the website of the Debtors proposed claims and noticing agent at The location of the Debtors service address for purposes of these chapter 11 cases is: 4001 North Rodney Parham Road, Little Rock, Arkansas Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.

13 Pg 13 of 14 requested therein at a hearing, if any, before this Court (the Hearing ; and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Motion is granted as set forth herein. 2. The automatic stay is lifted and modified for the purpose of allowing the Debtors to continue their prosecution of the Appeal. 3. Notwithstanding the relief granted in this Order and any actions taken pursuant to such relief, nothing in this Order shall be deemed: (a an admission as to the validity of any particular claim against the Debtors; (b a waiver of the Debtors rights to dispute any particular claim on any grounds; (c a promise or requirement to pay any particular claim; (d an implication or admission that any particular claim is of a type specified or defined in this Order or the Motion; (e a request or authorization to assume any agreement, contract, or lease pursuant to section 365 of the Bankruptcy Code; (f a waiver or limitation of the Debtors rights under the Bankruptcy Code or any other applicable law; or (g a concession by the Debtors that any liens (contractual, common law, statutory, or otherwise satisfied pursuant to the Motion are valid, and the Debtors expressly reserve their rights to contest the extent, validity, or perfection or seek avoidance of all such liens. Any payment made pursuant to this Order is not intended and should not be construed as an admission of the validity of any particular claim or a waiver of the Debtors rights to subsequently dispute such claim. 4. Notice of the Motion as provided therein shall be deemed good and sufficient notice of such Motion and the requirements of Bankruptcy Rule 6004(a and the Local Rules are satisfied by such notice. 2

14 Pg 14 of Notwithstanding anything to the contrary, the terms and conditions of this Order are immediately effective and enforceable upon its entry. 6. Notwithstanding anything to the contrary contained herein, any payment made or action taken by any of the Debtors pursuant to the authority granted herein, as well as the exercise of any and all other rights granted or approved hereunder, shall be subject to the requirements imposed on the Debtors under any orders of this Court approving any debtor-in-possession financing for, or any use of cash collateral by, the Debtors (such order, the DIP Order and any budget in connection therewith. Notwithstanding anything to the contrary in this Order, in the event of any inconsistency between the terms of this Order and the terms of any applicable DIP Order, the terms of the DIP Order shall govern. 7. The Debtors are authorized to take all actions necessary to effectuate the relief granted in this Order in accordance with the Motion. 8. This Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation, interpretation, and enforcement of this Order. White Plains, New York Dated:, 2019 THE HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE 3