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For The District of Delaware: Motion For An Order Approving Key Employee Incentive
For The District of Delaware: Motion For An Order Approving Key Employee Incentive
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Chapter 11
Debtors.
Objection Deadline: May 27, 2009 at 4:00 p.m. Hearing Date: June 3, 2009 at 1:00 p.m.
DEBTORS' MOTION TO FILE UNDER SEAL EXHIBIT A TO MOTION FOR AN ORDER APPROVING KEY EMPLOYEE INCENTIVE PLAN AND AUTHORIZING PAYMENTS THEREUNDER
By this motion (the "Motion"), the above-captioned debtors and debtors in possession
(the "Debtors") seek the entry of an order authorizing the Debtors to file under seal Exhibit A
("Incentive Plan Motion Exhibit A") to the Debtors' Motion for an Order Approving Key Employee Incentive Plan and Authorizing Payments Thereunder (the "Incentive Plan Motion")
pursuant to section 107(b) under chapter 11 of title 11 of
Rules"), and Rule 9018-1 (b) of the Local Rules of Banptcy Practice and Procedure of the
United States Banptcy Cour for the District of
i The Debtors in these cases, along with the last four digits of each Debtor's federal tax identification number, are:
Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings LLC (tax I.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The address for all of the Debtors is III W. Ocean Boulevard, Suite 1240, Long Beach, CA.
"
Jurisdiction
1. The Cour has jurisdiction over this matter pursuant to 28 U.S.C. 157 and
1334. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. This is a core proceeding
pursuant to 28 U.S.C. 157(b)(2)(A) and (0).
2. The statutory predicates for the relief requested herein are Section 1 07(b) ofthe
Banptcy Code, Rule 9018 of
Background
3. On March 9, 2009 (the "Petition Date"), the Debtors fied voluntary petitions for
relief under chapter 11 of the Banptcy Code. The Debtors are continuing in possession of
their property and are operating and managing their businesses, as debtors in possession,
these cases is
set forth in detail in the Incentive Plan Motion that was fied concurrently herewith.2
5. Pursuant to the Incentive Plan Motion, the Debtors seek to implement a key
employee incentive plan (the "Incentive Plan") to motivate certain key employees to accomplish
certain performance goals that the Debtors believe wil maximize creditor recoveries in these
chapter 11 cases. The terms of the Incentive Plan are set forth in the Incentive Plan Motion and
Incentive Plan Motion Exhibit A.
6. Thc only information that is redacted Incentive Plan Motion Exhibit A as fied
with the Incentive Plan Motion is the amount of each Paricipating Employee's anual salary
2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Incentive
Plan Motion.
and the individualized amounts of the performance bonuses that are potentially payable to each
of
the Paricipating Employees (information from which each Paricipating Employee's anually
salar could be calculated using the percentage bonuses set forth in Incentive Plan Motion
Exhbit A).
Relief Requested
7. By this Motion, the Debtors seek the entry of
of
the Banptcy Code, Banptcy Rule 9018 and Local Banptcy Rule 9018-(b),
authorizing the Debtors to fie Incentive Plan Motion Exhibit A under seaL.
power to issue orders that wil protect entities from potential har:
banptcy court may (1) protect an entity with respect to a trade secret or confidential research, development, or commercial information. . ..
11 U.S.C. 107(b).3
9. Banptcy Rule 9018 identifies the procedure by which a pary may move for
protect the estate or any entity in respect of a trade secret or other confidential research, development, or commercial information. . ..
3 In fact, the Congressional intent of
section 107(b) was to require the bankptcy cour on request ofa part in
interest to seal trade secrets, confidential research, development or commercial information. See Senate Report No. 989 107.01, 107-2. (section 107(b) "requires the cour, on the request of a part in interest, to protect trade secrets, confidential research, development, or commercial information").
cause "an unfair advantage to competitors by providing them information as to the commercial
operations of
the debtor." In re Orion Pictures Corp., 21 F.3d 24,27 (2d Cir. 1994) (citing In re
!tel Corp., 17 B.R. 942,944 (B.A.P. 9th Cir. 1982)). In these cases, information set forth on
Incentive Plan Motion Exhibit A contains confidential information concerning certain of the
Debtors' employees that is not in the public realm. If such information were to be made public
via PACER, confdential information wil be exposed to the detriment of both the Debtors and
those employees who are included in the Incentive Plan. Accordingly, the Debtors submit that
Incentive Plan Motion Exhibit A constitutes "commercial information" and should be subject to
the protections of section 107 (b) of the Banptcy Code.
11. Under section 107(b) of
access to fied documents where paries have demonstrated good cause. See,~, In re Epic
Assoc. V., 54 B.R. 445, 450 (Ban. E.D. Va. 1985); In re Nun, 49 B.R. 963, 964-65 (Ban.
E.D. Va. 1985). See Order Granting Debtors' Motion to File Under Seal Exhibit A to the
Motion for an Order Approving an Incentive Plan and Authorizing Payment Thereunder, In re
DHP Holdings II Corp., Chapter 11 Case No. 08-13422 (MFW) (Ban. D. DeL. Apr. 16,2009)
(approving filing under seal Exhibit A, which contains anual salary and the individualized
amounts of performance bonus information for paricipating employees in incentive plan).
Cours may deny access to judicial documents when open inspection may be used as a vehicle
for an improper purose. In re Orion Pictures Corp., 21 F.3d at 27 (citing Nixon v. Warer
Comm'n, Inc., 435 U.S. 589, 597 (1978)).
highly sensitive. The Paricipating Employees are necessary to the Debtors' operations and
public disclosure ofthe employees' names, salary and bonuses would make it easier for other
businesses to "poach" these employees. Also, not every employee of the Debtors is a
Paricipating Employee and disclosure of the names, salaries and bonuses of Paricipating
Employees would create a potential morale problem. Additionally, disclosure of
the names,
salaries and bonuses of Paricipating Employees would be a disclosure of private information for certain employees that would otherwise not be available to the public. Therefore, cause exists
for this Court to grant the Motion.
Notice
13. A copy of the Motion was served upon: (i) the Office of the United States
Trustee; (ii) the Debtors' prepetition lenders; (iii) counsel for the Offcial Committee of
Unsecured Creditors; and (iv) those persons who have requested notice pursuant to Rule 2002 of
the Federal Rules of Bankuptcy Procedure. The Debtors submits that, in light of
the nature of
No Prior Request
14. No prior request for the relief sought in this Motion has been made to this or any
other court.
WHREFORE, the Debtors respectflly requests that the Cour enter an order,
substantially in the form of the proposed order filed herewith, (i) autoriing the Debtors to file
Incentive Plan Motion Exhibit A under seal, and (ii) granting fuher relief as is just and proper.
Scotta E. McFarland (DE Bar No. 4184, CA Bar No. 165391) Robert M. Saunders (CA Bar No. 226172) Kathleen P. Makowski (DE Bar No. 3648) 919 North Market Street, 17th Floor P.O. Box 8705
Wilmington, DE 19899-8705 (Courer 19801)
In re:
PACIFIC ENERGY RESOURCES L TD,
et at., 1
Chapter 11
Debtors.
NOTICE OF DEBTORS' MOTION TO FILE UNDER SEAL EXHIBIT A TO THE MOTION FOR AN ORDER APPROVING KEY EMPLOYEE INCENTIVE PLAN AND AUTHORIZING PAYMENTS THEREUNDER
PLEASE TAKE NOTICE that the above-captioned debtors and debtors-in-
possession (the "Debtors") fied the Debtors' Motion to File Under Seal Exhibit A to Motion for
an Order Approving Key Employee Incentive Plan and Authorizing Payments Thereunder (the
"Motion") with the United States Banptcy Court for the District of Delaware, 824 Market
Street, 3rd Floor, Wilmington, Delaware 19801 (the "Banptcy Court"). A copy of
the Motion
is attached hereto. Pursuant to the Motion, the Debtors seek the entry of an order, pursuant to
Section 107(b) of
the Bankptcy Code, Bankptcy Rule 9018 and Local Banptcy Rule
90 18-(b), authorizing the Debtors to fie Exhibit A to the Incentive Plan Motion under seaL.
PLEASE TAKE FURTHER NOTICE that any response or objection to the relief
sought in the Motion must be fied with the Banuptcy Cour by no later than May 27,2009 at
1 The Debtors in these cases, along with the last four digits of each Debtor's federal tax identification number, are:
Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings LLC (tax I.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The address for all of
the Debtors is 111 W. Ocean Boulevard, Suite 1240, Long Beach, CA.
PLEASE TAKE FURTHER NOTICE that at the same time, you must also serve a
copy of
the response or objection upon: (i) counsel to the Debtors: (a) Laura Davis Jones, Esq.,
Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 1 ih Floor, P.O. Box 8705,
Wilmington, Delaware 19899-8705 (Courier 19801); (ii) the Office of the United States Trustee:
(a) Joseph McMahon, Jr., Esq., United States Trustee's Office, 844 King Street, Suite 2207,
Lockbox 35, Wilmington, Delaware 19801; (iii) counsel to the Official Committee of
Unsecured
Creditors: (a) Joshua R. Taylor, Esq., Steptoe & Johnson, LLP, 1330 Connecticut Ave., N.W.,
Washington, DC 20036; (iv) counsel to prepetition lender: (a) Seth Jacobson, Esq., Skadden
Ars, Slate, Meagher & Flom, LLP, 333 West Wacker Drive, Chicago, IL 60606-1285,; and (v)
counsel to prepetition lender: (a) Jeffrey Sabin, Esq., Bingham McCutcheon, 399 Park Avenue,
New York, NY 10022.
A HEARIG TO CONSIDER THE RELIEF SOUGHT IN THE MOTION WILL
BE HELD ON JUNE 3, 2009 AT 1:00 P.M. PREVAILING EASTERN TIME BEFORE THE
HONORABLE KEVIN J. CAREY, UNITED STATES BANKRUPTCY JUDGE, AT THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824
MOTION, THE COURT MAY GRANT SUCH RELIEF WITHOUT FURTHER NOTICE OR
HEARG.
2
68773-002\DOCS _ LA:20 1836.3
Alan Korneld (CA Bar No. 130063) James E. O'Neil (Bar No. 4042)
Scotta E. McFarland (DE Bar No. 4184, CA BarNo. 165391) Robert M. Saunders (CA Bar No. 226172) Kathleen P. Makowski (DE Bar No. 3648) 919 North Market Street, 17th Floor P.O. Box 8705
Wilgton, DE 19899-8705 (Courier 19801)
Email: ljones(gpszjlaw.com
ikarch(gpszjlaw.com
komfeldt?Jpszilaw.com smcfarland~pszjlaw.com
rsaunders~pszjlaw.com kmakowski(gpszjlaw.com
Counsel for the Debtors and Debtors in Possession
3
68773-002\DOCS _ LA:201836.3
Debtors.
) ) ) ) ) )
Chapter 11
ORDER GRANTING DEBTORS' MOTION TO FILE UNDER SEAL EXHIBIT A TO THE MOTION FOR AN ORDER APPROVING KEY EMPLOYEE INCENTIVE PLAN AND AUTHORIZING PAYMENTS THEREUNDER2
Upon the motion (the "Motion") ofthe above-captioned debtors and debtors in
possession (the "Debtors") for entry of an order pursuant to section 107 (b) of the Banptcy
Code, Banptcy Rule 9018 and Local Rule 90 18-1 (b), authorizing the Debtors to fie Exhibit A
to the Incentive Plan Motion under seal; and it appearing that the relief requested is in the best
interests of the Debtors' estates, their creditors, and other paries in interest; and it appearing that
this Cour has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; and it
appearing that this matter is a core proceeding within the meaning of28 U.S.C. 157(b)(2); and
it appearing that venue of these proceedings and the Motion is proper in this District pursuant to
28 U.S.C. 1408 and 1409; and notice of
Motion was appropriate under the paricular circumstances and no other or fuher notice need be
i The Debtors in these cases, along with the last four digits of each Debtor's federal tax identification number, are:
Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings LLC (tax I.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The address for all of
the Debtors is 111 W. Ocean Boulevard, Suite 1240, Long Beach, CA.
2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.
given; upon the record herein, after due deliberation thereon, good and sufficient cause exists for
the granting of the relief as set forth herein.
under seaL.
3. This Court shall retain jurisdiction with respect to all matters arising from
this Order.