NOTICE OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND …

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE: TRIBUNE COMPANY FRAUDULENT CONVEYANCE LITIGATION

Consolidated Multidistrict Action No. 11 MD 2296 (RJS)

THIS DOCUMENT RELATES TO:

Kirschner v. FitzSimonsKirschner v. Citigroup Global Markets, Inc.

No. 12 CV 2652 (RJS) No. 12 CV 6055 (RJS)

NOTICE OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINTS UNDER RULE 15

Please take notice that upon the exhibits hereto and the accompanying memorandum of

law, Marc S. Kirschner, as Litigation Trustee (the “Litigation Trustee”) for the Tribune

Litigation Trust, successor plaintiff to the Official Committee of Unsecured Creditors of Tribune

Company in Kirschner v. FitzSimons, No. 12 CV 2652, and Kirschner v. Citigroup Global

Markets, Inc., 12 CV 6055, through his undersigned counsel, will move before this Court at the

Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York 10007, at

a date and time to be set by the Court, for an order:

1. Granting the Litigation Trustee leave to amend the operative Fourth Amended

Complaint in FitzSimons by filing a Fifth Amended Complaint in substantially the

form attached hereto as Exhibit 1; and

2. Granting the Litigation Trustee leave to amend the operative Complaint in

Citigroup by filing a First Amended Complaint in substantially the form attached

hereto as Exhibit 2.

Pursuant to the Court’s Order of May 28, 2013 [ECF No. 2554], liaison counsel for

Defendants are required to coordinate and file any response to the motion by July 19, 2013.

Case 1:11-md-02296-RJS Document 2565 Filed 06/04/13 of 7

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Further pursuant to that Order, any brief in opposition to the motion shall not exceed ten pages,

and if liaison counsel for Defendants determine that a single consolidated brief will not

adequately convey disparate rationales for opposing the proposed amendments, liaison counsel

for Defendants shall seek leave of the Court to file additional consolidated briefs.


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Von Platen Trust No. 2, Dorothy B. Chandler Marital Trust No. 2, Dorothy B. Chandler Residuary Trust No. 2, HOC Trust No. 2 FBO Scott Haskins, HOC Trust No. 2 FBO John Haskins, HOC Trust No. 2 FBO Eliza Haskins, HOC GST Exempt Trust No. 2. FBO Scott Haskins, HOC GST Exempt Trust No. 2. FBO John Haskins, HOC GST Exempt Trust No. 2. FBO Eliza Haskins, Alberta W. Chandler Marital Trust No. 2, Earl E. Crowe Trust No. 2, Patricia Crowe Warren Residuary Trust No. 2, Helen Garland Trust No. 2 (For Gwendolyn Garland Babcock), Helen Garland Trust No. 2 (For William M. Garland III), Helen Garland Trust No. 2 (For Hillary Duque Garland), Garland Foundation Trust No. 2, Marian Otis Chandler Trust No. 2, Robert R. McCormick Foundation, Cantigny Foundation, Automobile Mechanics’ Local No. 701 Union and Industry Pension Fund a/k/a Automobile Mechanics Local 701 LCV, Frank W. Denius, The DFA Investment Trust Company, GDK Inc., Hussman Strategic Growth Fund, Edwin R Labuz IRA, Ameriprise Trust Company f/k/a H&R Block Financial Advisors, Custodian, Denise Meck, Nationwide S&P 500 Index Fund, a Series of Nationwide Mutual Funds, New York State Teachers Retirement System, Dorothy C. Patterson Irrevocable Trust #2 U/A/D 12-21-93, The Northern Trust Company, as Successor Trustee, Blandina Rojek, VTrader Pro, LLC, and those defendants with respect to which “Akin” is identified as “LT Counsel” in Exhibit A to the proposed Fifth Amended FitzSimonsComplaint


IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE: TRIBUNE COMPANY FRAUDULENT CONVEYANCE LITIGATION

Consolidated Multidistrict Action No. 11 MD 2296 (RJS)

THIS DOCUMENT RELATES TO:

Kirschner v. FitzSimonsKirschner v. Citigroup Global Markets, Inc.

No. 12 CV 2652 (RJS) No. 12 CV 6055 (RJS)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTIONFOR LEAVE TO AMEND COMPLAINTS UNDER RULE 15

ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP

AKIN GUMP STRAUSS HAUER & FELD LLP

FRIEDMAN KAPLAN SEILER & ADELMAN LLP

KASOWITZ BENSON TORRES & FRIEDMAN LLP

Counsel for the Tribune Litigation Trust

June 4, 2013

Case 1:11-md-02296-RJS Document 2566 Filed 06/04/13 Page 1 of 18

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .......................................................................................................1

BACKGROUND .............................................................................................................................2

ARGUMENT ...................................................................................................................................5

LEAVE TO AMEND SHOULD BE GRANTED ............................................................................5

A. The Proposed Amendments Create No Prejudice to Defendants .............................5

B. The Proposed Amendments Are Timely and Sought in Good Faith ........................9

CONCLUSION ..............................................................................................................................10


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TABLE OF AUTHORITIES

CASES

AEP Energy Servs. Gas Holding Co. v. Bank of Am.,626 F.3d 699 (2d Cir. 2010)...................................................................................................7, 8

Asoma Corp. v. SK Shipping Co.,53 F. App’x 581 (2d Cir. 2002) .................................................................................................6

Block v. First Blood Assocs.,988 F.2d 344 (2d Cir. 1993).............................................................................................5, 6, 10

Care Envtl. Corp. v. M2 Techs. Inc.,No. 05 CV 1600, 2006 WL 2265036 (E.D.N.Y. Aug. 8, 2006) ................................................6

Esposito v. Deutsche Bank AG,No. 07 CV 6722, 2008 WL 5233590 (S.D.N.Y. Dec. 16, 2008) ...............................................8

Kamerman v. Steinberg,681 F. Supp. 206 (S.D.N.Y. 1988).............................................................................................6

Ricciuti v. N.Y.C. Transit Auth.,941 F.2d 119 (2d Cir. 1991).......................................................................................................8

Richardson Greenshields Secs., Inc. v. Lau,825 F.2d 647 (2d Cir. 1987).......................................................................................................5

Ruotolo v. City of N.Y.,514 F.3d 184 (2d Cir. 2008).......................................................................................................5

Schiller v. City of N.Y.,No. 04 CV 7922, 2009 WL 497580 (S.D.N.Y. Feb. 27, 2009) .................................................5

Slayton v. Am. Express Co.,460 F.3d 215 (2d Cir. 2006).......................................................................................................5

State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., P.C.,246 F.R.D. 143 (E.D.N.Y. 2007) .....................................................................................5, 7, 10

State Teachers Ret. Bd. v. Fluor Corp.,654 F.2d 843 (2d Cir. 1981).......................................................................................................5

Taberna Capital Mgmt., LLC v. Jaggi,No. 08 CV 11355, 2010 WL 1424002 (S.D.N.Y. Apr. 9, 2010) ...............................................5

Xpressions Footwear Corp. v. Peters,No. 94 CV 6136, 1995 WL 758761 (S.D.N.Y. Dec. 22, 1995) ...............................................10


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Marc S. Kirschner, as Litigation Trustee (the “Litigation Trustee”) for the Tribune

Litigation Trust, successor plaintiff to the Official Committee (the “Committee”) of Unsecured

Creditors of Tribune Company (“Tribune”) in Kirschner v. FitzSimons, No. 12 CV 2652, and

Kirschner v. Citigroup Global Markets, Inc., 12 CV 6055 (together, the “Actions”), respectfully

submits this memorandum of law in support of his motion pursuant to Federal Rule of Civil

Procedure 15(a)(2) to amend the complaints in the Actions by filing (i) the proposed Fifth

Amended Complaint in FitzSimons in substantially the form attached to the accompanying

Notice of Motion as Exhibit 1, and (ii) the proposed First Amended Complaint in Citigroup in

substantially the form attached to the Notice of Motion as Exhibit 2.

PRELIMINARY STATEMENT

The Litigation Trustee seeks to make the first amendments to the complaints in

FitzSimons and Citigroup since he was substituted as plaintiff in place of the Committee, and the

first substantive amendments of any kind since the Actions originally were filed—amendments

that the Court and parties expressly anticipated in the jointly negotiated Master Case Order No. 3

(“MCO 3”).

The proposed amended complaints easily satisfy the liberal standards for leave to amend,

and will result in no prejudice to any party if permitted. The amendments relate to precisely the

same disastrous leveraged buyout (“LBO”) that was the focus of every prior version of the

complaints, and allege only claims that arise out of or relate to that transaction. The Actions

have been stayed for all but ministerial purposes since they originally were commenced, the

parties have yet to engage in any discovery or motion practice on the merits in the Actions, and

the trials in these cases have not yet even been scheduled. Far from prejudicing any party, the


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proposed amendments will provide further notice to the defendants concerning the nature of the

claims alleged against them, and will serve to clarify and focus the issues for trial.

The motion to amend is also timely. The Litigation Trustee began preparing the

proposed amendments promptly upon his appointment and substitution as plaintiff in the

Actions, sought leave to file the amended complaints before the deadline for such amendments

provided under MCO 3, and the proposed amendments add details concerning the LBO that were

largely developed in the bankruptcy proceedings after the original complaints were filed. In any

case, it is settled law in this Circuit that, absent bad faith, the mere lapse of time between the

filing of an original and amended complaint is not grounds for denying a motion to amend.

Here, the Litigation Trustee acted in good faith by filing a motion expressly contemplated by the

parties and the Court.

In short, none of the factors that will sometimes justify denial of a motion to amend is

present here, and the Litigation Trustee should be permitted to file the proposed Fifth Amended

Complaint in FitzSimons and First Amended Complaint in Citigroup.

BACKGROUND

The original adversary complaints in the Actions were prepared and filed by the

Committee in connection with Tribune’s Chapter 11 bankruptcy case in the Bankruptcy Court

for the District of Delaware. The Committee filed the FitzSimons action on November 1, 2010,

entitled Official Committee of Unsecured Creditors of Tribune Co. v. FitzSimons, Adv. Proc. No.

10-54010 (Bankr. D. Del.). Also on November 1, 2010, the Committee filed an adversary

proceeding entitled Official Committee of Unsecured Creditors of Tribune Co. v. JPMorgan

Chase Bank, N.A., Adv. Proc. No. 10-53963 (Bankr. D. Del.) (the “Lender Action”). Among the

claims asserted in the Lender Action were claims against defendants Citigroup Global Markets,


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Inc. and Merrill Lynch, Pierce, Fenner and Smith Inc. for aiding and abetting breaches of

fiduciary duty, avoidance and recovery of the payment of advisory fees, and professional

malpractice (collectively, the “Advisor Claims”). By order dated March 22, 2012, the

Bankruptcy Court severed the Advisor Claims from the Lender Action, and the Committee filed

a complaint alleging only the Advisor Claims on April 2, 2012, which it entitled Official

Committee of Unsecured Creditors of Tribune Co. v. Citigroup Global Markets, Inc., Adv. Proc.

No. 12-50446 (Bankr. D. Del.).

The Actions were substantively stayed by the Bankruptcy Court as soon as they were

filed. However, the Committee was permitted to take, and did take, limited discovery regarding

the identities and locations of shareholder and other defendants for inclusion in FitzSimons, and

was also permitted to make non-substantive amendments to the complaints in the actions. The

Committee amended the complaints in FitzSimons three times before the Actions were

transferred to this Court by the Judicial Panel on Multidistrict Litigation (the “JPML”) for

coordinated or consolidated pretrial proceedings, and once after the cases were transferred.1

Consistent with limitations provided in the operative case management orders, the

Committee’s prior amendments to the FitzSimons complaint were all non-substantive. For

example, the Committee dropped certain individually named shareholder defendants, added as

individual defendants certain shareholder defendants who were already members of the alleged

1 The Committee filed the First Amended Complaint in FitzSimons on December 7, 2010, the Second Amended Complaint November 1, 2011, and the Third Amended Complaint on January 11, 2012. The JPML transferred FitzSimons to this Court by order dated September 7, 2012, and the Committee filed a Fourth Amended Complaint on November 7, 2012 (which it corrected on November 8, 2012). The JPML transferred Citigroup to this Court by order dated August 3, 2012. The Citigroup complaint has not been amended since it first was filed on April 2, 2012.


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defendant class, and made ministerial changes, including by correcting the captioned names of

some defendants and fixing typographical errors.

The Litigation Trustee was appointed, and substituted as the plaintiff in FitzSimons and

Citigroup, by order of the Bankruptcy Court on December 31, 2012, after all four of the prior,

non-substantive FitzSimons amendments were prepared and filed by the Committee. The

Litigation Trustee now seeks leave to make the first substantive amendments of any kind to the

complaints in FitzSimons and Citigroup, including by alleging additional facts concerning the

LBO that were further explored and developed after the original complaints were filed by the

Committee, in connection with the discovery and hearing on confirmation of the Tribune plan of

reorganization.

MCO 3 expressly contemplates that the Litigation Trustee will be permitted to

substantively amend the complaints, and reserves for a later stage in these proceedings any

motions directed to the adequacy of the amended complaints. MCO 3 ¶ 31. Consistent with

MCO 3, Liaison Counsel for the Named Defendants has represented that the Named Defendants

do not oppose the Litigation Trustee’s motion to amend. Letter from John R. McCambridge to

the Court, May 22, 2013 (“McCambridge Ltr.”) [ECF No. 2539 on 11 MD 2296]. All of the

defendants in the Advisor Action are Named Defendants, and counsel for the defendants in the

Advisor Action have confirmed that the motion to amend the Citigroup complaint is unopposed.

Interim Liaison Counsel for the Exhibit A Shareholder Defendants has likewise indicated that

Liaison Counsel does not intend to submit an opposition to the motion to amend the FitzSimons

complaint, but left open the possibility that individual Exhibit A Shareholder Defendants may

decide on their own to oppose the Litigation Trustee’s motion. Letter from D. Ross Martin to the

Court, May 22, 2013 (“Martin Ltr.”) [ECF No. 2540 on 11 MD 2296].


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ARGUMENT

LEAVE TO AMEND SHOULD BE GRANTED

Leave to amend a pleading “shall be freely given when justice so requires.” Fed. R. Civ.

P. 15(a)(2); see also Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir.

1987). “The purpose of Rule 15 is to provide maximum opportunity for each claim to be decided

on its merits rather than on procedural technicalities.” Slayton v. Am. Express Co., 460 F.3d 215,

228 (2d Cir. 2006) (internal quotations omitted). A motion to amend should be denied only for

such reasons as “undue delay, bad faith, futility of the amendment,” and “resulting prejudice to

the opposing party.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981);

see also Schiller v. City of N.Y., No. 04 CV 7922, 2009 WL 497580, at *1 (S.D.N.Y. Feb. 27,

2009) (Sullivan, J.). None of these factors is present here, and the motion accordingly should be

granted.

A. The Proposed Amendments Create No Prejudice to Defendants

Prejudice to the opposing party is “the most important factor” in determining whether

leave to amend should be granted or denied. Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.

2008) (citation omitted). “The party opposing the motion for leave to amend carries the burden

of demonstrating that it will be substantially prejudiced by the amendments.” State Farm Mut.

Auto. Ins. Co. v. CPT Med. Servs., P.C., 246 F.R.D. 143, 148 (E.D.N.Y. 2007); see also Taberna

Capital Mgmt., LLC v. Jaggi, No. 08 CV 11355, 2010 WL 1424002 (S.D.N.Y. Apr. 9, 2010)

(same).

The defendants cannot carry their burden here. In determining whether amendments

would be prejudicial, courts in the Second Circuit “consider whether the assertion of the new

claim would: (i) require the opponent to expend significant additional resources to conduct


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discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii)

prevent the plaintiff from bringing a timely action in another jurisdiction.” Block v. First Blood

Assocs., 988 F.2d 344, 350 (2d Cir. 1993). Prejudice will generally not be found unless the

motion to amend “comes on the eve of trial after many months or years of pre-trial activity,”

would “cause undue delay in the final disposition of the case” and “entails more than an alternate

claim or a change in the allegations of a complaint.” Care Envtl. Corp. v. M2 Techs. Inc., No.

05 CV 1600, 2006 WL 2265036, at *6 (E.D.N.Y. Aug. 8, 2006) (internal quotations omitted).

The amendments proposed here, while extensive, are not prejudicial to any party. The

proposed amended complaints add factual detail regarding Tribune’s disastrous LBO, the same

transaction at issue in all prior iterations of the complaints. Among other things, the proposed

amended complaints include a number of charts and graphs to synthesize, simplify, and clarify

complex factual information, and enhance the existing allegations concerning the chronology of

events leading to the LBO, the roles played by certain defendants in connection with the

transaction, and the nature of the acts and omissions giving rise to the claims against the

defendants. See Asoma Corp. v. SK Shipping Co., 53 F. App’x 581 (2d Cir. 2002) (holding that

additional allegations concerning the transaction set forth in original pleading should generally

be allowed). Far from causing any prejudice, the amendments will benefit the parties and the

Court by helping to focus and clarify the issues for trial, and by providing even clearer notice to

the defendants concerning the claims asserted against them. See Kamerman v. Steinberg, 681

F. Supp. 206 (S.D.N.Y. 1988) (permitting amendments that will help focus issues for trial).2

2 In their letter to the Court, Liaison Counsel for the Shareholder Defendants noted that the proposed amendments represent a “significant revision” of the currently operative versions of the complaints. See Martin Ltr. at 1 & n.1. A blackline of the amendments against the current versions of the pleadings (which the Litigation Trustee will make available to the defendants on his website, along with this brief and redacted versions of the pleadings themselves) will show


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Indeed, the proposed Fifth Amended Complaint in FitzSimons actually narrows the issues

for trial. Among other things, the proposed amended complaint in FitzSimons (i) excludes from

the alleged class any Tribune shareholders who received less than $50,000 in connection with the

LBO, (ii) withdraws counts for breach of fiduciary duty against former Tribune officers

Thomas D. Leach, Luis E. Lewin, R. Mark Mallory, and Ruthellyn Musil and (iii) removes

causes of action under Bankruptcy Code Section 510(b) for mandatory subordination of claims

that Tribune directors and officers asserted in the Tribune bankruptcy proceedings. The Fifth

Amended Complaint also adds newly discovered defendants, corrects transfer amounts, improves

defendant naming style, and deletes defendants, including duplicate defendants.

Permitting the proposed amendments is particularly warranted given the preliminary

status of these proceedings. From a substantive point of view, the FitzSimons and Citigroup

actions have barely even begun: the parties have engaged in no merits discovery or motion

practice in the Actions, and trial is far in the future. Indeed, though originally filed in 2010, the

Actions were stayed immediately after they were commenced, and the only discovery allowed in

the Actions has been for purposes of identifying and locating potential defendants. See, e.g.,

MCO 3 ¶¶ 31, 36, 38, 41; see also State Farm, 246 F.R.D. at 149 (holding that proposed

amendments created no prejudice where “the only discovery that has been completed was

conducted in an effort to determine the proper parties to this action, and significant discovery on

the merits has yet to commence.”); AEP Energy Servs. Gas Holding Co. v. Bank of Am., 626

F.3d 699, 725–26 (2d Cir. 2010) (no prejudice where amendments will not require parties to

extensive changes, resulting in part from the reordering of counts but also from the inclusion of additional factual detail concerning relevant events and the roles played by the defendants in them. The relevant inquiry on a motion to amend under Rule 15(a)(2) is whether the proposed amendments are prejudicial, not whether they are extensive, see Block, 988 F.2d at 350, and Liaison Counsel’s letter does not argue that the motion should be denied on the basis of the extent of the revisions.


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expend “significant additional resources to conduct discovery and prepare for trial”) (internal

quotations omitted).

Neither can there be any risk of surprise arising from the proposed amendments. As

noted, MCO 3—which was negotiated among counsel for the plaintiffs and the defendants and

approved by Judge Pauley—provides that “pre-answer motions to dismiss, if any, . . . will not be

filed before the Litigation Trustee has replaced the Committee as the Plaintiff . . . and has either

amended the complaints . . . or informed the Court in writing that it does not intend to amend

such complaints.” MCO 3 ¶ 31 (emphasis added). No defendant could reasonably be surprised

or prejudiced by the fact that the Litigation Trustee now proposes to do exactly what the

operative case management order contemplated he would do.

MCO 3 also bars any opposition to the motion to amend that may be asserted based on

futility. The futility of an amendment is assessed under the standard for a Rule 12(b)(6) motion

to dismiss. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); see also Esposito

v. Deutsche Bank AG, No. 07 CV 6722, 2008 WL 5233590, at *3 (S.D.N.Y. Dec. 16, 2008)

(Sullivan, J.) (same). Permitting a barrage of futility challenges from disparately situated

defendants in response to the Litigation Trustee’s motion would thus require the Court and

parties to engage in the same inquiry that the Court specifically reserved for a later stage in these

proceedings. See MCO 3 ¶ 31; see also McCambridge Ltr. at 1 (stating that Named Defendants

will not oppose the motion to amend, while reserving their rights to “move to dismiss . . . the

[amended] complaint at the appropriate time”). Motion practice based on futility arguments

would result in piecemeal litigation, which would be contrary to the interests of judicial

economy, and could result in multiple rounds of motion practice addressed to the same legal


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issues.3 Any such arguments should instead be preserved for coordinated motion practice in

Phase Two of these proceedings, consistent with the structure provided in MCO 3.

B. The Proposed Amendments Are Timely and Sought in Good Faith

Under MCO 3, the Litigation Trustee was not required to seek to amend the complaints

until, at the earliest, “the deadline set by the Court for filing motions to dismiss in Phase Two.”

MCO 3 ¶ 31. That deadline has not yet arrived—and indeed, has not yet been set—since one of

the Phase One motions to dismiss is still pending. Id. ¶ 12(vi) (providing that the deadline for

filing any Phase Two motions to dismiss—and hence the deadline for amendments by the

Litigation Trustee—will be determined in a future master case order “following the entry of

orders disposing of the Phase One Motions”). The motion to amend is thus timely under the

terms of MCO 3.

Even if the Court had not already expressly provided that the Litigation Trustee can seek

to amend up to the time of filing of the Phase Two motions, the proposed amendments would

still be timely. The Litigation Trustee was appointed, and succeeded the Committee as Plaintiff

in the Actions, on December 31, 2012. Before he could revise the complaints, the Litigation

Trustee was required to retain counsel, familiarize himself with an enormous amount of

information concerning the complex LBO transaction and the many persons and entities that are

defendants in the Actions, meet repeatedly and at length with representatives of the Committee,

review a substantial number of documents recently turned over to the Litigation Trustee by the

Committee and Tribune, consider the interplay between the facts and the law concerning dozens

of causes of action, decide what changes should be made to the complaints, and execute those

3 In addition, were futility challenges permitted at this stage, fairness would require permitting the Litigation Trustee to submit an extensive reply brief explaining why none of his claims is futile, an exercise that the Court has not at this juncture built into the briefing schedule.


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modifications. During the entire period from his appointment as Litigation Trustee to the filing

of this motion, the substantive stay of the Actions remained in place. Under the circumstances,

the Litigation Trustee acted with all appropriate speed and efficiency in seeking to amend the

complaints.4

In any event, the lapse of time between the filing of an original and an amended pleading

can never “provide a basis for a district court to deny the right to amend” unless the alleged delay

is accompanied by “bad faith or undue prejudice.” Block, 988 F.2d at 350 (internal citations and

quotations omitted); see also State Farm, 246 F.R.D. at 149 (no prejudice from amendment after

2½ years where “the case is nowhere near resolution” and “significant discovery on the merits

has yet to commence”). As described above, no prejudice will result from the filing, and there is

no basis for concluding that the Litigation Trustee acted in bad faith by filing a motion to amend

that was expressly anticipated by the Court and parties.

CONCLUSION

For the foregoing reasons, the Litigation Trustee respectfully requests that the Court enter

an order granting the motion to amend, and granting such other and further relief as the Court

may deem just and proper.

4 The factual detail added to the proposed amended complaints was largely developed in the bankruptcy proceedings that followed the filing of the original complaints, and was thus unavailable to the Committee at that time. See Xpressions Footwear Corp. v. Peters, No. 94 Civ. 6136, 1995 WL 758761, at *2 (S.D.N.Y. Dec. 22, 1995) (“[F]ederal courts consistently grant motions to amend where it appears that new facts and allegations were developed during discovery, are closely related to the original claim, and are foreshadowed in earlier pleadings.”).Since this is the first opportunity for substantive amendments to the complaints, that level of additional detail could not have been added at an earlier stage in the proceedings without modification of then-operative court orders.


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Marital Trust No. 2, Dorothy B. Chandler Residuary Trust No. 2, HOC Trust No. 2 FBO Scott Haskins, HOC Trust No. 2 FBO John Haskins, HOC Trust No. 2 FBO Eliza Haskins, HOC GST Exempt Trust No. 2. FBO Scott Haskins, HOC GST Exempt Trust No. 2. FBO John Haskins, HOC GST Exempt Trust No. 2. FBO Eliza Haskins, Alberta W. Chandler Marital Trust No. 2, Earl E. Crowe Trust No. 2, Patricia Crowe Warren Residuary Trust No. 2, Helen Garland Trust No. 2 (For Gwendolyn Garland Babcock), Helen Garland Trust No. 2 (For William M. Garland III), Helen Garland Trust No. 2 (For Hillary Duque Garland), Garland Foundation Trust No. 2, Marian Otis Chandler Trust No. 2, Robert R. McCormick Foundation, Cantigny Foundation, Automobile Mechanics’ Local No. 701 Union and Industry Pension Fund a/k/a Automobile Mechanics Local 701 LCV, Frank W. Denius, The DFA Investment Trust Company, GDK Inc., Hussman Strategic Growth Fund, Edwin R Labuz IRA, Ameriprise Trust Company f/k/a H&R Block Financial Advisors, Custodian, Denise Meck, Nationwide S&P 500 Index Fund, a Series of Nationwide Mutual Funds, New York State Teachers Retirement System, Dorothy C. Patterson Irrevocable Trust #2 U/A/D 12-21-93, The Northern Trust Company, as Successor Trustee, Blandina Rojek, VTrader Pro, LLC, and those defendants with respect to which “Akin” is identified as “LT Counsel” in Exhibit A to the proposed Fifth Amended FitzSimonsComplaint


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