Free Stipulation - District Court of Delaware - Delaware

Case 1:05-cv—00455-SLR Document 16 Filed 12/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: g CHAPTER 1 I
) BK NO. 03-10945 (MFW)
FLEMING COMPANlES» INC·» ET AL·» ) ADVERSARY PROCEEDING No. 05-77317
DEEToRs g
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C . N . 05-455-SLR
PCT, g IV O
PLATNTIPP, {
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WD-40 COMPANY, g
DEFENDANT. {

STIPULATION FOR APPOINTMENT OF MEDIATOR
The Post—Coniirmation Trust ("Plaintift") for the bankruptcy estate ofthe Fleming
Companies, Inc. et al. (the "Debtors”), and WD-40 Company ("Defendant”), by their attorneys,
hereby stipulate for the appointment of Robert Brady as mediator, and represent as follows:
RECITALS
l. The Debtors tiled voluntary petitions for relief under chapter ll of title ll of the
United States Code (the "Bankruptcy Code") on April 1, 2003 (the "Petition Date").
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Case 1:05-cv—00455-SLR Document 16 Filed 12/29/2005 Page 2 of 4
2. On July 27, 2004, the Court confirmed the Debtors’ and Official Committee of
Unsecured Creditors’ Third Amended and Revised Joint Plan of Reorganization of Fleming
Companies, lnc. and its Filing Subsidiaries under Chapter 1 1 of the United States Bankruptcy
Code.
3. On or about March 24, 2005, Plaintiff filed a Complaint to avoid and recover
approximately $666,290.32 paid by the Debtors to Defendant within 90 days prior to the Petition
Date as preferential transfers or constructively fraudulent conveyances under 11 U.S.C. §§ 547
544(b) and 548, approximately $9,546.80 in alleged overpayments as constructively fraudulent
transfers or unauthorized post—petition payments under ll U.S.C. §§ 544, 548 and 549, and
approximately $31,397.92 in alleged post—petition deductions owed to the Debtors, for a total
demand of approximately $707,235.04. Plaintiff asserted other causes of action including unjust
enrichment, breach of contract, and turnover.
4. Defendant timely filed an answer to the Complaint and asserted numerous
affirmative defenses including fraud and setoff Plaintiff also filed a motion to withdraw the
reference to the District Court, and a motion for determination of "core" and "non-core" status of
claims, requesting a jury trial. Both motions were granted, and the adversary proceeding is
currently pending before this Court.
5. On August 30, 2004, this Court issued a scheduling order, setting a one-week trial
commencing on September 18, 2006. The Court scheduled a deadline for completing all fact
discovery by January 31, 2006.
6. The parties have informally exchanged information and are engaged in settlement
negotiations. The Court scheduled mediation with U.S. Magistrate Mary Pat Thynge on May 3,
2006, the earliest date available (the "Mediation Date"). However, at the pre-trial conference in
October 2005, the Court agreed that the parties could stipulate to the retention of a private
mediator prior to the Mediation Date.
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Case 1:05-cv—00455-SLR Document 16 Filed 12/29/2005 Page 3 of 4
7. The parties would like to avoid the expense of discovery if the adversary
proceeding can be successfully mediated, and have agreed to the retention of Robert Brady, a
private mediator (the "Mediator"), to be held on January 19, 2006.
8. In the event that mediation is not successful, the parties would like additional time
to complete discovery and therefore request that the Court extend the discovery cutoff dates and
all other pertinent dates set forth in the Scheduling Order entered on or about August 25, 2005
(the "Scheduling Order") by 60 days.
STIPULATION
9. The Recitals set forth above are incorporated as though fully set forth herein.
10. The Parties agree to the appointment of Robert Brady as a private mediator, with
mediation to be initiated by Plaintiff
11. Unless otherwise agreed by the parties in writing, mediation shall be held on
January 19, 2006, in Wilmington, Delaware.
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Case 1:05-cv-00455-SLR Document 16 Filed 12/29/2005 Page 4 of 4
` 12. The discovery cutoff date and all other pertinent dates set forth in the Scheduling
Order are each extended by 60 days.
Dated: December gl, 2005 Dated: December 2005
SMITH KATZEN TEIN & FURLOW LLP P PP ILT? LLP.-
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Kathleen M. Miller N0. 2898) Davi Fournier (DE 2 12)
Etta R. Wolfe (ID No. 4164) Wilmer C. Bettinger (DE 359)
800 Delaware Avenue, 7th Floor Hercules Plaza, Suite 5100
Post Office Box 410 1313 Market Street
Wilmington, Delaware 19899 (Courier 19801) Post Office Box 1709
Telephone: (302) 652-8400 Wilmington, Delaware 19899-1709
Telecopy: (302) 652-8405 Telephone: (302) 777-6500
_ Facsimile (302) 421-8390
and and
FOLEY & LARDNER, LLP KIRKLAND & ELLIS LLP
Keith C. Owens, Cal. Bar No. 184841 Eric Liebeler (CA Bar No. 149504)
2029 Century Park East, Suite 3500 F. Wade Ackerman (CA Bar No. 234747)
Los Angeles, California 90067-3021 777 South Figueroa Street
Telephone: (310) 277-2223 Los Angeles, California 90017
Facsimile: (310) 557-8475 Telephone: (213) 680-8400
Facsimile: (213) 680-8500
Counsel for Defendant WD—40 Company Counsel f0r Plaintf PCT
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