Old Carco LLC and RJM I, LLC, as Liquidation Trustee for Old Carco L

Minutes of Proceedings
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------------------------------x
Date: 	May 5, 2009 	:
------------------------------------------------------------------------------------------------x
In re: 	:
:
Chrysler LLC 	: 	Case No. 09-50002 (AJG)
Debtor(s). 	:
------------------------------------------------------------------------------------------------x
Hon. Arthur J. Gonzalez 	________________ 	ECRO
Bankruptcy Judge 	Courtroom Deputy 	Court Reporter
Trustee 	Counsel
Debtor(s) Chrysler LLC 	Counsel Jones Day
1. Creditor 	Counsel
2. Creditor 	Counsel
3. Plaintiff/Applicant 	Counsel
4. Defendant/Respondent 	Counsel
Proceedings: 	¤ Motion for Relief from Automatic Stay Filed By
¤ Motion to Void Lien Held By
¤ Motion to Dismiss Filed By
¤ Motion to Confirm/Modify Plan
¤ Motion to Convert to Chapter
X Motion By Certain Chrysler Non-TARP Lenders authorizing White & Case LLP to file in redacted
form and under seal verified statement pursuant to Bankruptcy Rule 2019.
¤ Complaint By
¤ Appearances made, arguments presented
¤ No appearances
¤ Oral findings and conclusions made of record
¤ Witnesses sworn 	¤ See attached list ¤ Exhibits entered ¤ See attached list
¤ Pretrial 	¤ Status Conference
¤ Other
¤ Continued to 	at 	for
Orders: 	X Relief sought in complaint/motion:
¤ Granted 	X Denied 	¤ Dismissed 	¤ Awarded by Default
X Movants are directed to file the 2019 Statement by 10:00 a.m., May 6, 2009.
¤ Judgment to enter for:
¤ Plaintiff 	¤ Defendant 	¤ Applicant 	¤ Respondent
¤ In the amount of $ 	¤ Cost in the amount of $
¤ Matter taken under advisement
¤ Formal order or Judgment to enter
¤ Confirmation/modification of plan 	¤ granted 	¤ denied
X The Motion is denied for the reasons set forth in Exhibit “A.”
FOR THE COURT: Vito Genna, Clerk of the Court
BY THE COURT:
s/Arthur J. Gonzalez 	5/5/2009 	Jacqueline De Pierola
United States Bankruptcy Judge 	Date 	Courtroom Deputy
09-50002-mg Doc 335 Filed 05/05/09 Entered 05/05/09 17:48:37 Main Document
Pg 1 of 5

EXHIBIT “A”
Certain Chrysler Non-TARP Lenders seek entry of an order, pursuant to sections
105(a) and 107 of the Bankruptcy Code, Bankruptcy Rule 9018, and General Order #M-
242 authorizing White & Case to file in redacted form and under seal the 2019 Statement.
For the following reasons, the Court denies the relief requested.
According to these Lenders, “[t]he Chrysler Non-TARP Lenders are seeking to
protect commercial information – specifically their reputational interests that are being
tarnished by inaccurate and misleading information disseminated by the executive branch
of the United States government. The failure to issue such an order puts these parties at
risk of undue influence on the part of the government and physical danger in the form of
death threats.”
Section 107(b) states that the Court “shall” on the “request of a party in interest”
issue an order to “protect an entity with respect to . . . commercial information . . . or
protect a person with respect to scandalous or defamatory matter contained in a paper
filed in” a case under the Bankruptcy Code. In In re Orion Pictures Corp., 21 F.3d 24,
27 (2d Cir. 1994), the Second Circuit held that “[c]ommercial information has been
defined as information which would cause ‘an unfair advantage to competitors by
providing them information as to the commercial operations of the debtor.’”
These Lenders assert that their reputational interests require protection. However,
reputational interests are not “commercial information” under the Second Circuit’s test
and therefore are not entitled to protection under section 107(b). The Second Circuit has
held that a “naked conclusory statement” that information not placed under seal would
cause reputational injury “falls woefully short of the kind of which raises even an
1
09-50002-mg Doc 335 Filed 05/05/09 Entered 05/05/09 17:48:37 Main Document
Pg 2 of 5

arguable issue as to whether it may be kept under seal.” Joy v. North, 692 F.2d 880, 894
(2d Cir. 1982). These Lenders also do not argue that they require protection from
scandalous or defamatory matter contained in a paper filed in this case. Instead, the
exhibits to these Lenders’ motion come from sources outside this case. Accordingly,
these Lenders do not have grounds under section 107(b) for their 2019 Statement to be
sealed.
For the same reasons, these Lenders do not have grounds under Rule 9018 for
their 2019 Statement to be sealed. These Lenders’ citation of In re Global Crossing Ltd.,
295 B.R. 720, 724 (Bankr. S.D.N.Y. 2003), for the proposition that the court’s authority
to issue “any order which justice requires” “goes not just to the protection of confidential
documents, but to other confidentiality restrictions that are warranted in the interests of
justice” is unavailing because the court only has such authority if the requirements of
Rule 9018 are met. The relevant Rule 9018 requirements are the same as those under
section 107(b), and these Lenders have not met those requirements.
Section 107(c) allows the court “for cause” to protect an individual with respect to
certain types of information, including any means of identification, “where disclosure of
such information would create an undue risk of … unlawful injury to the individual or the
individual’s property.” These Lenders first cite In re Kaiser Aluminum Corp., 327 B.R.
554, 560 (D. Del. 2005), in which the district court upheld the bankruptcy court’s order
limiting access to a 2019 statement that contained personal identifying information of
asbestos claimants. The Kaiser court cited Nixon v. Warner Comm., Inc. 435 U.S. 589,
597-98 n.8, 98 S.Ct. 1306 (1978), for the proposition that courts have “supervisory power
2
09-50002-mg Doc 335 Filed 05/05/09 Entered 05/05/09 17:48:37 Main Document
Pg 3 of 5

over their records and files and may deny access to those records and files to prevent
them from being used for an improper purpose.”
These Lenders assert that the use of their 2019 Statement as “a means of
identifying targets for coercion and threats” is an “improper purpose,” but they provide
no evidence or support that their 2019 Statement would be used in this way.
Additionally, the bankruptcy court in Kaiser expressed privacy concerns over
individuals’ personal information being made public on the electronic case filing system.
Although the bankruptcy court there stated that it would make the information available
to a party who requested it, in this case, the interest for the information is apparent. Also
in this case, entities’ rather than individuals’ information would be disclosed in the 2019
Statement.
These Lenders also cite Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 508
(M.D. Pa. 2007), in which the court allowed legal and illegal immigrants plaintiffs to
proceed anonymously because even Hazleton residents with a “more secure social and
legal status than the anonymous plaintiffs” were subject to “harassment and intimidation”
resulting from face-to-face comments. As an exception to the general principle that
“lawsuits are public events,” the Lozano court cited other courts’ protection of litigants’
anonymity only where there was “real danger of physical harm” or “revealing their true
identities would lead to physical violence.” In this case, these Lenders point to certain
comments posted on a website. They point to no particularized threats evidencing a real
danger of physical harm, and moreover, although they may have reported these threats to
law enforcement authorities, they do not show that law enforcement authorities consider
3
09-50002-mg Doc 335 Filed 05/05/09 Entered 05/05/09 17:48:37 Main Document
Pg 4 of 5

such threats bona fide. Accordingly, these Lenders do not have grounds under section
107(c) for their 2019 Statement to be sealed.
For the foregoing reasons, the Court denies the relief requested.
Further, the 2019 Statement shall be filed by 10:00 a.m., May 6, 2009.
4
09-50002-mg Doc 335 Filed 05/05/09 Entered 05/05/09 17:48:37 Main Document
Pg 5 of 5