Imerys Chapter 11 Mediation Order Protecting Everything

Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 1 of 5
IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
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In re: : Chapter 11
:
IMERYS TALC AMERICA, INC., et al.,1 : Case No. 19-10289 (LSS)
:
Debtors. : (Jointly Administered)
: Re: Docket No. 2691
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ORDER APPOINTING MEDIATOR
Upon the certification of counsel, dated December 29, 2020 (the “Certification of
Counsel”),2 of the debtors and debtors in possession (collectively, the “Debtors”) in the above-
captioned cases (the “Chapter 11 Cases”) regarding appointment of a mediator; and this Court
having jurisdiction to consider the Certification of Counsel and the relief requested therein
pursuant to 28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference from the
United States District Court for the District of Delaware dated February 29, 2012; and the
consideration of the Certification of Counsel and the relief requested therein being a core
proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to
28 U.S.C. §§ 1408 and 1409; and this Court having reviewed the Certification of Counsel; and
upon all of the proceedings had before this Court and after due deliberation and sufficient cause
appearing therefor,
1
The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification
number, are: Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada
Inc. (6748). The Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076.
2
Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in
the Certification of Counsel.
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IT IS HEREBY ORDERED THAT:
1. The Court authorizes and appoints Lawrence W. Pollack (the “Mediator”) to serve
as mediator and conduct non-binding mediation with the Mediation Parties (the “Mediation”)
regarding disputes over certain insurance obligations.
2. Subject to entry of this Order, the Debtors shall pay their 50% portion of the
Mediator’s fees and expenses without further application to or order of this Court. The Debtors
reserve the right to select a mediation date agreeable to the Mediation Parties, subject to the Fee
Cap (as defined below). The Mediator’s fees and expenses allocable to the Debtors for the
Mediation, including the expenses of any professionals retained by the Mediator, shall not exceed
$40,000 in total (the “Fee Cap”). Payment of fees and expenses in excess of the Fee Cap shall
require further approval of this Court.
3. Each Mediation Party shall bear its own costs and expenses incurred in connection
with the Mediation, such as attorney’s fees, travel, lodging, and meals; provided, however, that the
Debtors’ estates will bear the expenses of the Debtors, the Committee and the FCR in accordance
with the applicable provisions of the Bankruptcy Code and the Order Under 11 U.S.C. §§ 105(a)
and 331, Fed. R. Bankr. P. 2016(a), and Del. Bankr. L.R. 2016-2 Establishing Procedures for
Interim Compensation of Professionals, entered on March 25, 2019 [Docket No. 301].
4. Without limiting the applicability of Local Rule 9019-5(d), (a) discussions among
the Mediation Parties, including discussions with or in the presence of the Mediator before or after
the entry of this Order, (b) any mediation statements or any other documents or information
provided to the Mediator or exchanged among the Mediation Parties in the course of the Mediation,
and (c) correspondence, draft resolutions, offers, and counteroffers produced for, or as a result of,
the Mediation (clauses (a) through (c), collectively, the “Mediation Information”), shall be
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strictly confidential and shall not be admissible for any purpose in any judicial or administrative
proceeding, and no person or Mediation Party, including counsel for any Mediation Party, or any
other party, shall in any way disclose to any person or entity that is not a Mediation Party or to any
court, including, without limitation, in any pleading or other submission to any court, any such
discussion, mediation statement, other document or information, correspondence, resolution, offer,
or counteroffer that may be made or provided in connection with the Mediation, unless otherwise
available and not subject to a separate confidentiality agreement that would prevent its disclosure
or as authorized by this Court, provided, however, evidence shall not be excluded or otherwise
considered improper in any judicial or administrative proceeding on the ground that it was
developed as an outgrowth of information supplied in the Mediation, unless such disclosure is
otherwise prohibited in a separate confidentiality agreement governing the use of such derivative
information.
5. To the extent that any Mediation Party is in possession of privileged or confidential
information provided to such Mediation Party pursuant to the terms and conditions of a
confidentiality agreement, or other similar agreement, executed (or agreed to via email) with the
Debtors or an order of this Court entered in connection with the Chapter 11 Cases, such
information may be disclosed to the Mediator, but shall otherwise remain privileged and/or
confidential and shall not be disclosed to any other Mediation Party; provided, however, that
confidential, but not privileged, information may be disclosed to another Mediation Party that is
also subject to a confidentiality agreement with the Debtors or subject to such Court order, as
applicable. Any Mediation Party may provide documents and/or information to the Mediator that
are subject to a privilege or other protection from discovery, including the attorney-client privilege,
the work product doctrine, or any other privilege, right, or immunity the parties may be entitled to
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claim or invoke (the “Privileged Information”). The party producing such documents and/or
information to the Mediator (the “Producing Party”) must designate such documents and/or
information as Privileged Information. By providing Privileged Information solely to the Mediator
and no other party, no Mediation Party nor its respective professionals intends to, or shall, waive,
in whole or in part, the attorney-client privilege, the work-product doctrine, or any other privilege,
right or immunity they may be entitled to claim or invoke with respect to such Privileged
Information. The Mediator shall not provide Privileged Information or disclose the contents
thereof to any other person, entity, or Mediation Party without the consent of the Producing Party
(except that the Mediator may disclose Privileged Information to any person assisting the Mediator
in the performance of his mediation duties, in which event such assistant shall be subject to the
same restrictions as the Mediator with respect to such privileged information). No Mediation Party
is obligated to provide any documents and/or information, including Privileged Information, to the
Mediator.
6. All Mediation Information shall (a) remain confidential, (b) be subject to protection
under Rule 408 of the Federal Rules of Evidence and any equivalent or comparable state law and
(c) not constitute a waiver of any existing privileges and immunities.
7. Notwithstanding anything to the contrary in the Local Rules, the Mediator may
conduct the Mediation as he sees fit, establish rules of the Mediation, and consider and take
appropriate action with respect to any matters the Mediator deems appropriate to conduct the
Mediation, subject to the terms of this Order.
8. No written record or transcript of any discussion had in the course of the Mediation
is to be kept, absent express written agreement by the Mediation Parties; provided, however, that
the Mediator and any person assisting the Mediator in the performance of his mediation duties
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shall be entitled to keep such records and take such notes as the Mediator deems necessary or
helpful to carry out such duties, and further provided that such records and notes shall be
considered Mediation Information.
9. The results of the Mediation are non-binding unless the applicable Mediation
Parties otherwise agree. Any resolution that is reached at the Mediation and that involves the
Debtors or their estates will be subject to Court approval after notice and opportunity for hearing,
to the extent required under Bankruptcy Rule 9019.
10. For the avoidance of doubt, to the extent any part of this Order shall conflict with
Local Rule 9019-5, the terms and provisions of this Order shall govern.
11. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order.
12. Notwithstanding the possible applicability of Rules 6004(h), 7062, or 9014 of the
Federal Rules of Bankruptcy Procedure, or otherwise, the terms and conditions of this Order shall
be immediately effective and enforceable upon entry of this Order.
13. This Court retains jurisdiction over all matters arising from or related to the
implementation or interpretation of this Order.
LAURIE SELBER SILVERSTEIN

Dated: January 5th, 2021 5 UNITED STATES BANKRUPTCY JUDGE
Wilmington, Delaware
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Imerys Chapter 11 Mediation Order Protecting Everything

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Case 19-10289-LSS Doc 2703 Filed 01/05/21 Page 1 of 5

IN THE UNITED STATES BANKRUPTCY COURT

ORDER APPOINTING MEDIATOR

IT IS HEREBY ORDERED THAT:

regarding disputes over certain insurance obligations.

require further approval of this Court.

discussion, mediation statement, other document or information, correspondence, resolution, offer,

developed as an outgrowth of information supplied in the Mediation, unless such disclosure is

5. To the extent that any Mediation Party is in possession of privileged or confidential

information as Privileged Information. By providing Privileged Information solely to the Mediator

(c) not constitute a waiver of any existing privileges and immunities.

Mediation, subject to the terms of this Order.

considered Mediation Information.

to the extent required under Bankruptcy Rule 9019.

granted in this Order.

be immediately effective and enforceable upon entry of this Order.

implementation or interpretation of this Order.

LAURIE SELBER SILVERSTEIN

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