NEC 9

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UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF MASSACHUSETTSEASTERN DIVISION

____________________________________

)

In re: ))

NEW ENGLAND COMPOUNDING ) CHAPTER 11PHARMACY, INC., ) CASE NO. 12-19882-HJB

)

Debtor. )____________________________________)

MOTION OF DEBTOR FOR THE ENTRY OF AN

ORDER WAIVING REQUIREMENT TO FILE CREDITORS MATRIX

( REQUEST FOR EMERGENCY DETERMINATION )

New England Compounding Pharmacy, Inc., the debtor and debtor in possession (the

“Company”) in the above-captioned chapter 11 case (the “Chapter 11 Case”), hereby submits

this motion (the “Motion”) for the entry of an order, substantially in the form attached hereto,

pursuant to §§ 105, 342(a) and 521(a)(1) of title 11 of the United States Code (11 U.S.C. §§ 101

et. seq. as amended, the “Bankruptcy Code”) and Fed. R. Bankr. P. 1007(a) and 2002(a) and (f),

waiving the requirement that the Company file a creditors matrix. Pursuant to MLBR 9013-1(g),

the Company respectfully requests that this Court make an emergency determination with respect

to this Motion. This Motion is being filed contemporaneously with the Company’s Application

To Retain Donlin, Recano & Co., Inc. (“DRC”) as Claims, Noticing and Balloting Agent (the

“DRC Retention Application”). Granting of the DRC Retention Application would obviate the

need for the Company to file a matrix. The Motion requires an emergency hearing because of

the requirement in MLBR 1007-1 that a matrix be filed within three days. In support of this

Motion, the Company respectfully states as follows:

Background

1. On December 21, 2012, the Company filed a voluntary petition for relief under

Case 12-19882 Doc 9 Filed 12/21/12 Entered 12/21/12 18:51:53 Desc MainDocument Page 1 of 7

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chapter 11 of the Bankruptcy Code (the “Petition Date”).

2. The Company continues to own and manage its assets as a debtor-in-possession

pursuant to §§ 1107(a) and 1108 of the Bankruptcy Code.

3. To date, no trustee, examiner, creditors’ committee, or other official committee

has been appointed in the Company’s Chapter 11 Case.

4. Contemporaneously herewith, the Company is filing the DRC Retention

Application. If approved, the Company intends to utilize DRC, among other things, to handle

service of many, if not all, notices in this Chapter 11 Case, including without limitation the

Company’s notice of commencement and 11 U.S.C. § 341 meeting, the bar date notice, and

notices in connection with the disclosure statement and plan. In connection with this process, the

Company has been providing and continues to supply DRC with the contact information that it

will need to accomplish effective service of the various filings in this Chapter 11 Case.

5. The Company is a compounding pharmacy which combines ingredients to create

specific formulations of pharmaceutical products. Prior to the Petition Date, numerous

individuals across the country were stricken with fungal meningitis attributed to contaminated

products distributed by the Company. In early October, NECC initiated a nationwide recall of

potentially contaminated product and, in cooperation with regulatory authorities, ceased

operation. More that 100 lawsuits have been filed and hundreds more are expected in connection

with this tragic occurrence.

6. Through this Chapter 11 case, NECC seeks to forge a consensual, comprehensive

resolution of these claims in the form of a Chapter 11 plan establishing a compensation fund for

meningitis claimants based on agreements to be reached among them, the Company, its insurers

and other parties with potential liability for the meningitis cases. To spearhead this effort, the


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directors and shareholders appointed Keith D. Lowey of Verdolino & Lowey, P.C. as

independent director and chief restructuring officer with plenary and exclusive authority over

matters related to personal injury claims and the Company’s conduct of this Chapter 11 case.

The Company’s goal is to provide a greater, quicker, fairer and less expensive payout to its

creditors than they could achieve through piecemeal litigation.

Jurisdiction

7. This Court has subject matter jurisdiction to consider this matter pursuant to 28

U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper

before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

8. The statutory bases for the relief requested herein are §§ 105(a), 342(a) and

521(a)(1) of the Bankruptcy Code and Rules 1007(a) and 2002(a) and (f) of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”).

Relief Requested

9. The Company requests, pursuant to § 105(a) of the Bankruptcy Code, entry of an

Order waiving the requirement of MLBR 1007-1(a), that it file a creditors matrix within three

days of the Petition Date.

Basis for Relief

10. The Company is filing the DRC Retention Application pursuant to 28 U.S.C. §

156(c), which empowers the Court to use outside facilities or services pertaining to the provision

of notices and other administrative information to parties in interest provided that the costs are

paid from the assets of the estate. The Company is furnishing its list of creditors (with contact

information) to DRC so that DRC may mail the Notice of Commencement, § 341 Meeting

Notice, Bar Date Notice and other documents to the entire matrix as appropriate.


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11. Given that DRC will receive a copy of the comprehensive creditors list and will

use that information to furnish the creditors with omnibus mailings in this Chapter 11 Case,

filing a creditors matrix will serve no useful purpose. DRC, acting as noticing agent of the

Company, will ensure that all creditors will receive prompt notice of, among other events and

filings, the commencement of this Chapter 11 Case. As a result, the matrix filing requirement of

Local Rule 1007-1 should be waived.

12. Section 105(a) of the Bankruptcy Code empowers the Court to “issue any order,

process, or judgment that is necessary or appropriate to carry out the provisions” of the

Bankruptcy Code. 11 U.S.C. § 105(a). Having DRC, rather than the Clerk of this Court, serve

the Notice of Commencement and other filings in this Chapter 11 Case is appropriate and is

within this Court’s equitable powers under § 105(a). Finally, the relief requested in this Motion

is beneficial to the Company’s estate and creditors because it will result in actual notice to all of

the Company’s creditors, in an efficient and cost-effective manner.

Emergency Consideration is Warranted

13. Pursuant to MLBR 9013-1(g), the Court may consider this Motion on an

emergency basis where exigent circumstances are present justifying such relief. These

circumstances are present here because the regular deadline for filing the creditor’s matrix, as set

forth in MLBR 1007-1, occurs prior to the passage of the standard notice period applicable to

this Motion.

Notice

14. The Company has served a copy of this Motion by the Court’s ECF System,

facsimile, overnight courier and/or electronic mail on (a) the 20 largest unsecured creditors as

identified in the Company’s petition, and (b) the Office of the United States Trustee. In light of

the relief requested herein, the Company submits that no other or further notice is required.


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15. No request for the relief sought herein has been made to any other Court.

WHEREFORE, the Company respectfully requests the entry of an Order (a) granting the

relief requested in this Motion; (b) waiving the requirement that Company file a creditors matrix

in this Chapter 11 Case; and (c) granting such other and further relief as the Court deems just and

proper.

Respectfully submitted,

NEW ENGLAND COMPOUNDING

PHARMACY, INC.,

By its attorneys,

/s/ Daniel C. CohnDaniel C. Cohn, Esq. BBO #090780

Keri L. Wintle, Esq. BBO #676508

Murtha Cullina LLP99 High Street, 20th Floor

Boston, MA 02110

(617) 457-4000 Telephone

(617) 482-3868 [email protected]

Dated: December 21, 2012 [email protected]

Proposed Counsel to New England Compounding

Pharmacy, Inc.


mailto:[email protected]




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UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF MASSACHUSETTSEASTERN DIVISION

____________________________________

)

In re: ))

NEW ENGLAND COMPOUNDING ) CHAPTER 11PHARMACY, INC., ) CASE NO. 12-19882-HJB

)

Debtor. )____________________________________)

ORDER GRANTING EMERGENCY MOTION OF DEBTOR FOR THE ENTRY OF

AN ORDER WAIVING REQUIREMENT TO FILE CREDITORS MATRIX

UPON THE EMERGENCY MOTION (the “Motion”)

1

of the above-captioned debtor and

debtor-in-possession (the “Company”), pursuant to §§ 105, 342(a) and 521(a)(1) of the

Bankruptcy Code and Fed. R. Bankr. P. 1007(a) and 2002(a) and (f), for an Order waiving the

requirement to file a creditors matrix, and this Court possessing jurisdiction to consider the

Motion, and venue lying appropriately with this Court, and notice of the Motion having been

sufficient, and having considered the Motion and all papers related thereto heretofore filed, and

the relief requested in the Motion being warranted, IT IS HEREBY ORDERED THAT:

1. The Motion is GRANTED.

2. The Company is hereby RELIEVED from the requirement imposed by the

Bankruptcy Rules and/or the Local Rules of filing a creditors matrix upon the docket being

maintained by the Clerk of Court in this Chapter 11 Case.

3. This Order shall take effect immediately upon its entry notwithstanding any

Bankruptcy Rule, Local Rule or other provision to the contrary.

1Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms in the

Motion.


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4. This Court shall retain jurisdiction over all matters arising from and/or related to

the interpretation and/or implementation of this Order.

Dated: December ___, 2012Boston, MA

__________________________________________

UNITED STATES BANKRUPTCY JUDGE


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NEC 9