FOX ROTHSCHILD LLP Yann Geron Kathleen Aiello 100 Park Avenue, 15th Floor New York, New

York 10017 (212) 878-7900 Counsel to Yann Geron, Chapter 7 Trustee of the Estate of Thelen LLP

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------x In re : : THELEN LLP, : : Debtor. : ------------------------------------------------------x

Chapter 7 Case No. 09-15631 (ALG)

TRUSTEES APPLICATION, PURSUANT TO 11 U.S.C. 105(a) AND 363 AND BANKRUPTCY RULES 2002, 6004 AND 9019, FOR APPROVAL OF A STIPULATION BETWEEN THE TRUSTEE AND CLAIMCO, LLC FOR THE SALE OF THE DEBTORS RIGHTS TO A CLASS ACTION SETTLEMENT CLAIM, FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES TO THE HONORABLE ALLAN L. GROPPER, UNITED STATES BANKRUPTCY JUDGE: Yann Geron (the Trustee), Chapter 7 trustee of the estate of Thelen LLP, the above-captioned debtor (the Debtor), by and through his general counsel, Fox Rothschild LLP, as and for his motion for an order, pursuant to 11 U.S.C. 105(a) and 363, and Rules 2002, 6004 and 9019 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), approving a stipulation between the Trustee and Claimco, LLC, d/b/a Spectrum Settlement Recovery (Spectrum) for the sale of the Debtors claim to a settlement amount in the Microsoft Class Action settlement (the Microsoft Claim), free and clear of all liens, claims and encumbrances, subject to higher and better offers, upon information and belief, respectfully sets forth and represents:

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JURISDICTION 1. This Court has jurisdiction over this Application pursuant to 28 U.S.C.

157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2). 2. 1408 and 1409. 3. Bankruptcy Rules. SUMMARY OF THE RELIEF REQUESTED 4. By this Application, the Trustee seeks entry of an order (the Order): (i) The statutory predicate for the relief sought herein is Rule 9019 of the Venue of this Application is proper in this district pursuant to 28 U.S.C.

approving the Stipulation between the Trustee and Spectrum and authorizing the Trustee to sell the Debtors rights to a Microsoft Claim to Spectrum for $20,000 (the Purchase Price), subject to higher and better offers, free and clear of any liens, claims or encumbrances (the Stipulation). A copy of the Stipulation is annexed hereto as Exhibit A. 5. As further detailed below, approval of the Stipulation is warranted because

it represents a favorable recovery on an asset that has nominal value to the Debtor unless sold to a third party, benefiting the estate and its creditors.

BACKGROUND 6. On September 18, 2009 (the Petition Date), the Debtor filed with the

United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court), a voluntary petition for relief under chapter 7 of Title 11 of the United States Code (the Bankruptcy Code). Yann Geron was subsequently appointed as interim chapter 7 trustee of

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the Debtors estate. Mr. Geron has since qualified and is currently serving as permanent Trustee herein. 7. Prior to the Petition Date, the Debtor was a limited liability partnership,

operating as an international law firm with approximately 600 attorneys. In October 2008, the Debtor formally voted to dissolve the partnership. Thereafter, the Debtor began its wind-down process. Upon information and belief, while in the wind-down stage, the Debtors largest lender ceased wind-down financing, and the Debtor filed the instant bankruptcy proceeding. 8. Approximately one year following the Petition Date, Spectrum contacted

the Trustee with a bid to purchase any current or future right to claims benefits to which the Debtor may be entitled under a July 13, 2003 Settlement of Microsoft Cases, J.C.C.P. No. 4106, Superior Court of California, County of San Francisco (the Microsoft Settlement).2 The Microsoft Settlement appears to derive from twenty-seven lawsuits filed in California claiming that Microsoft violated Californias antitrust and unfair competition laws and thereby overcharged consumers for certain of its operating systems, word processing and spreadsheet software. Microsoft agreed to settle these lawsuits, without admitting to wrongdoing, and agreed to provide consumer vouchers worth up to $1.1 billion to the California users of its software, which can be redeemed for cash as long as class members purchase qualifying computer hardware or software and have receipts to substantiate those purchases. Claimants had until 2007 to file a claim in order to receive a distribution from the Microsoft Settlement. 9. According to the terms of the Microsoft Settlement, class members

entitled to a distribution would receive vouchers for the value of their claim and must present those vouchers along with receipts for purchases of new hardware and software (bought after
The Debtors rights to the Microsoft Settlement were not listed on the Debtors schedules at the time of filing, but the Trustee has independently verified with the Microsoft class action claims administrator that the Debtor appears to be entitled to some recovery under the settlement.
2

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July 18, 2003) to convert the vouchers to cash. Without substantiating the proof of a recent purchase, the vouchers cannot be redeemed for cash. 10. Spectrum is a San Francisco-based claims recovery business that recovers

class action benefits for businesses. Spectrum has worked on recovering settlement benefits from the California Microsoft Settlement since its inception. By prior arrangement with the claims administrator, Spectrum has authority to purchase claims from debtors in bankruptcy by transferring the Debtors authority to redeem the voucher to an unrelated third party, who will have the vouchers reissued in its own name. At that point, the third party, using the reissued vouchers and its own recent purchase receipts, will convert the vouchers to a monetary recovery. 11. In this case, the face value of the Debtors vouchers is estimated to be

$27,077, based on the size of the firm at the time and Spectrums initial due diligence with the claims administrator.3 Without providing the original vouchers and proof of the Debtors

purchase of specific Microsoft products after July 18, 2003 up to the total face value of the vouchers, the Trustee cannot liquidate the Debtors vouchers for cash. However, under authority granted to Spectrum by the claims administrator, Spectrum is able to convert the Debtors claim vouchers to cash through an unrelated third party. Using a letter of agency from the Trustee, Spectrum will coordinate the re-issuance of the Debtors vouchers to a third party who does possess the requisite receipts to substantiate its own purchases of the qualified Microsoft products and redeem the vouchers, re-issued in its own name, for cash. 12. It would be a costly and perhaps futile exercise for the Trustee to locate

the originally issued vouchers, as well as almost $30,000 worth of receipts for the purchase of

Because the claims filing deadline passed in 2007, the Debtors claim could not exceed the amount verified by the claims administrator. At this point, the only option available to the Debtors estate is to attempt to liquidate its claim by presenting the vouchers issued to the Debtor and by demonstrating proof of purchase of specific Microsoft software after July 18, 2003. The Debtors claim can no longer be amended.

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Microsoft products qualified under the Microsoft Settlement would cost the estate significant time and resources. THE CURRENT APPLICATION a. Applicable Legal Standard 1. Trustees Settlement Authority 13. Bankruptcy Rule 9019 provides that [o]n a motion by the trustee and

after notice and a hearing, the court may approve a compromise or settlement. Fed. R. Bankr. P. 9019(a). In ruling on a motion pursuant to Bankruptcy Rule 9019(a), the court must find that the proposed settlement is fair and equitable and is in the best interests of the estate. Protective Comm. for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414 (1968). Fischer v. Pereira (In re 47-49 Charles Street, Inc.), 209 B.R. 618, 620 (S.D.N.Y. 1997); In re Ionosphere Clubs, Inc., 156 B.R. 414 (S.D.N.Y. 1993), affd 17 F.3d 600 (2d Cir. 1994); In re Fugazy, 150 B.R. 103 (Bankr. S.D.N.Y. 1993). 14. In order to reach such a decision, the Court must be apprised of all facts

necessary for an intelligent and objective opinion of whether the claim will be successful, the likely expense, length and the degree of complexity of the litigation, the potential difficulties of collecting on a judgment and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. TMT Trailer Ferry, 390 U.S. at 424-425. 15. To constitute a fair and equitable compromise or settlement, the Court

must find that the settlement does not fall below the lowest point in the range of reasonableness. Cosoff v. Rodman (In re W.T. Grant Co)., 699 F.2d 599, 608 (2d Cir. 1983)(quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir.) cert. denied, 409 U.S. 1039, 93 S. Ct. 521 (1972)), cert. denied, 464 U.S. 822, 104 S. Ct. 89 (1983); In re Drexel Burnham Lambert

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Group, Inc., 138 B.R. 723, 758-59 (Bankr. S.D.N.Y. 1992); In re International Distribution Centers, Inc., 103 B.R. 420, 423 (Bankr. S.D.N.Y. 1989). 16. The Court should also consider the fair and reasonable course of action for

the Debtors estate, with the limited available assets, giving consideration to the interests of creditors and the avoidance of burdening the estate with undue waste or needless or fruitless litigation. In re Del Grosso, 106 B.R. 165, 167-168 (Bankr. N.D. Ill. 1989) (citation omitted). See also In re Culmtech, Ltd., 118 B.R. 237, 238 (Bankr. M.D. Pa. 1990); In re Lawrence & Erausguin, Inc., 124 B.R. 37, 38 (Bankr. N.D. Ohio 1990); In re Bell & Beckwith, 93 B.R. 569, 574-75 (Bankr. N.D. Ohio 1988). 17. The Court is not required to conclusively determine the merits of a claim

subject to compromise or to find that a proposed settlement constitutes the best results obtainable to ensure that the settlement reaches the threshold of reasonableness. Instead, the Court should canvass the issues to determine whether the proposed settlement is fair and equitable, is in the best interests of the estate and otherwise does not fall outside the range of reasonableness. In re Apex Oil Co., 92 B.R. 847, 866-67 (Bankr. E.D. Mo. 1988). 2. Trustees Authority to Sell Estate Property 18. Section 363(b)(1) provides that the [t]he trustee, after notice and a

hearing, may use, sell or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b)(1). The decision to use, sell or lease property of the estate is subject to the exercise of the trustees business judgment. See Committee of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir. 1983). Further, to obtain court approval to sell property under section 363(b) of the Bankruptcy Code, a debtor need only show a legitimate business justification for the proposed action. See id. at 1070. (Where the debtor

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articulates a reasonable basis for its business decisions (as distinct from a decision made arbitrarily or capriciously), courts will generally not entertain objections to the debtors conduct.); Committee of Asbestos-Related Litigants and/or Creditors v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr. S.D.N.Y. 1986). 19. A chapter 7 trustees authority to liquidate the Debtors assets is mandated

by statute. Section 704(a) of the Bankruptcy Code directs the trustee to collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest. 704(a)(1). 20. Section 363(f) of the Bankruptcy Code authorizes a debtor to sell property 11 U.S.C.

free and clear of any interest in such property of an entity other than the estate only if: (i) (ii) (iii) applicable nonbankruptcy law permits the sale of such property free and clear of such interest; such entity consents; such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; such interest is in bone fide dispute; or such entity should be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.

(iv) (v)

Section 363(f) is drafted in the disjunctive and satisfaction of any one of its five requirements will suffice to permit the Sale free and clear of Liens. See Michigan Employment Sec. Commn v. Wolverine Radio Co., Inc. (In re Wolverine Radio Co.), 930 F.2d 1132, 1147 n.24 (6th Cir. 1991) (stating that section 363(f) of the Bankruptcy Code is written in the disjunctive and holding that the court may approve the sale free and clear provided at least one of the subsections is satisfied).

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21.

Several courts have held that notwithstanding the use of the term

interest in the statutory language of section 363(f), such section grants bankruptcy courts the power to convey assets free and clear of claims. See, e.g., In re Trans World Airlines., Inc., 322 F.3d 283, 290 (3rd Cir. 2003); In re Medical Software Solutions, 286 B.R. 431, 446 (Bankr. D. Utah 2002); In re Trans World Airlines, Inc., Case No. 01-0056, 2001 WL 1820325 at *5 (Bankr. D. Del. Mar. 27, 2001) (Authorizing the sale [of debtors assets] free and clear of . . . successor liability claims achieves the purpose of section 363 [of the Bankruptcy Code] intended by Congress.). Section 105(a) of the Bankruptcy Code provides additional support for courts authority to convey assets free and clear of claims. See Volvo White Truck Corp. v.

Chambersburg Beverage, Inc. (In re White motor Credit Corp.), 75 B.R. 944, 948 (Bankr. N.D. Ohio 1987) (stating that the absence of specific authority to sell assets free and clear of claims poses no impediment to such sale, as such authority is implicit in the courts equitable powers when necessary to carry out the provisions of title 11). See also, Equity Broadcasting Corp. v. Winstar New Media Co., Inc. (In re Winstar Communications, Inc.), 284 B.R. 40, 48 (Bankr. D. Del 2002) (approving a sale order transferring the debtors securities free and clear of all encumbrances pursuant to sections 105(a) and 363(f) of the Bankruptcy Code). b. Salient Terms of the Stipulation 22. terms: a. Spectrum agrees to pay to the Trustee $20,000 (the Purchase Price) in consideration of the rights to the Debtors Claim Benefits. b. Subject to Bankruptcy Court approval of this Stipulation, the Trustee agrees to appoint Spectrum as Debtors exclusive agent and attorney-in-fact to take all steps reasonable and necessary to obtain the Debtors Claim Benefits to which it is entitled in the Microsoft Settlement. The proposed Stipulation generally provides for the following salient

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c. The Trustee agrees to execute an additional letter, if needed, drafted by Spectrum, to the Claims Administrator, to effectuate the sale, conveyance, transfer, assignment and delivery of the Claims Benefits, as defined in the Stipulation.

c. Approval of the Stipulation is Warranted 23. The Trustee submits that the Stipulation is reasonable based on the nature

of the asset and the facts and circumstances of the case. The Stipulation allows for a favorable recovery to the Debtors estate without further need for estate professionals to independently perform due diligence or take further measures to attempt to liquidate this asset. 24. In this case, Spectrum will assume the role of working with the claims

administrator in the Microsoft Settlement, and an unrelated third party, to research, locate, evaluate, and advocate for the issuance of consumer vouchers relating to various software licenses. This process requires significant time to locate the Microsoft Settlement vouchers issued to the Debtor, as well as proof of the Debtors software license purchases since July 18, 2003 for use in its California offices. Spectrum has expertise and experience in researching these claims, particularly where the supporting documentation may not be readily available, as may be true in this case. Spectrum will also assume the responsibility of having the vouchers reissued in the name of an unrelated third party who is able to produce the requisite proofs of purchase to present to the claims administrator and redeem the vouchers for cash. The Trustee is not in a position to present this documentation without expending significant time and effort to locate these items, which may ultimately not even be possible. 25. In addition, upon information and belief, the time to present valid claims

under the Microsoft Settlement passed on September 16, 2010. The court in that case approved a one year extension of that deadline for Volume License purchases, but it is unlikely that the 9
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deadline will be further extended. Therefore, this may be one of the last opportunities for the estate to benefit from the sale of this asset. 26. For all the foregoing reasons, the Trustee believes the Stipulation is in the

best interests of the Debtors estate and its creditors and well within the range of reasonableness. Accordingly, the Trustee hereby seeks approval of the Stipulation and authority to sell the Debtors rights to the Microsoft Claim. NOTICE AND PROCEDURE 27. Contemporaneously with the filing of the Application, the Trustee filed

with the Court and served by first class mail a notice of the relief requested in this Application upon counsel to Citibank (the Debtors principal secured creditor), the Debtors top 20 creditors, parties in interest, all parties having filed notices of appearance and request for service of papers, Spectrum, and the United States Trustee. 28. The Trustee submits that notice of this Application has complied with

Bankruptcy Rule 2002 and is otherwise reasonable and appropriate, and that no other or further notice of the relief requested herein is required or necessary. NO PRIOR RELIEF 29. or any other court. No previous application for the relief sought herein has been made to this

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WHEREFORE, the Trustee respectfully requests that this Court enter an order: (i) approving the Stipulation substantially in conformity with the proposed form of Order annexed hereto as Exhibit B; and (ii) granting the Trustee such other and further relief as is just. Dated: New York, New York November 16, 2010 FOX ROTHSCHILD LLP

By: /s/ Yann Geron Yann Geron Kathleen Aiello 100 Park Avenue, 15th Floor New York, New York 10016 (212) 878-7900 Counsel to Yann Geron, Chapter 7 Trustee of Thelen LLP

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x In re : : THELEN LLP, : : Debtor. : ------------------------------------------------------------x

Chapter 7 Case No. 09-15631 (ALG)

STIPULATION OF SETTLEMENT WHEREAS, on September 18, 2009 (the Petition Date), Thelen LLP, the above-captioned debtor (the Debtor), filed for voluntarily relief under chapter 7 of Title 11 of the United States Code (the Bankruptcy Code) and Yann Geron (the Trustee), was appointed Chapter 7 trustee of the Debtors estate; and WHEREAS, prior to the Petition Date, the Debtor was a member of an antitrust and unfair competition class action lawsuit against Microsoft in California because it may have purchased Microsoft software between February 18, 1995 and December 15, 2001, including Windows, MS-DOS, Office, Excel, Word, Works Suite or Home Essentials 97 or 98 products to be redeemed for cash after class members purchase qualifying computer hardware or software, during the relevant time period; and WHEREAS, on July 13, 2003 a settlement was reached in that class action (the Settlement), See Microsoft Cases, J.C.C.P. No. 4106, Superior Court of California County of San Francisco, which provides, among other things, that class members can may have a right, title or interest to consumer vouchers from $5 to $29 for each desktop or laptop computer that is licensed to use the above-referenced software and an additional recovery for upgrade licenses as to the software. Under the terms of the Settlement, Microsoft would provide consumer vouchers

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totaling up to $1.1 billion to eligible California users of the aforementioned Microsoft products; and WHEREAS, the Debtor may be entitled to a recovery under the Settlement; and WHEREAS, Spectrum Settlement Recovery (Spectrum) is desirous of purchasing rights to the Debtors recovery under the Settlement, including any current or future right to a monetary recovery and/or Settlement benefits of any kind (the Claim Benefits); NOW, THEREFORE, IT IS, hereby stipulated and agreed, by, between and among the parties hereto, as follows: 1. The Trustee agrees to sell, convey, transfer, assign and deliver to

Spectrum, irrevocably and without future recourse, all right, title, and interest in the Claim Benefits of Thelen LLP, including but not limited to any and all Claim Benefits existing now, hereafter existing or arising, due, direct or indirect, absolute or contingent, known or unknown, on the terms and conditions set forth in this Stipulation. 2. Spectrum agrees to pay to the Trustee $20,000 (the Purchase Price) in

consideration of the rights to the Debtors Claim Benefits. 3. Subject to Bankruptcy Court approval of this Stipulation, the Trustee

agrees to appoint Spectrum as Debtors exclusive agent and attorney-in-fact to take all steps reasonable and necessary to obtain the Debtors Claim Benefits to which it is entitled in the Settlement. This Stipulation incorporates the Letter of Agency between the Trustee and

Spectrum entered into for the same purpose. 4. The Trustee agrees to execute an additional letter, if needed, drafted by

Spectrum, to the Claims Administrator, effectuating the sale, conveyance, transfer, assignment and delivery of the Claims Benefits, including but not limited to: (i) indicating the Trustee is

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unable to obtain receipts for past purchases; (ii) the Trustee cannot utilize the Claims Benefits; and (iii) request and identify to whom the Claims Benefits and/or consumer vouchers should be reissued. 5. This Stipulation constitutes the whole agreement of the parties hereto with

respect to the subject matter hereof and may only be modified or amended by the written consent of all the parties and with any necessary Bankruptcy Court approval. 6. This Stipulation is subject to Bankruptcy Court approval, and shall not be After the parties execute this Stipulation, the

enforceable until such approval is obtained.

Trustee will proceed to file any necessary papers in the Bankruptcy Court to obtain the courts approval. 7. Spectrum shall cause the entire Purchase Price to be paid to the Trustee

within 5 days of entry of an order by the Bankruptcy Court approving this Stipulation. 8. The Bankruptcy Court shall retain sole jurisdiction over all disputes

regarding this Stipulation. 9. Each party hereto, or counsel to each party, represents and warrants that it,

she or he, as the case may be, has full authority to enter into this Stipulation.

[Continued on next page]

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10.

This Stipulation may be executed by facsimile or electronic signature and

in counterparts, each of which (upon execution of a counterpart by each party), individually or taken together, shall constitute a single integrated agreement. Dated: November 15, 2010 Dated: November 15, 2010 FOX ROTHSCHILD LLP Counsel to Yann Geron, Chapter 7 Trustee

SPECTRUM SETTLEMENT RECOVERY

By: /s/ Hugh Alexander Hugh Alexander, Esq. 22 Battery Street, Suite 700 San Francisco, California 94111 (914) 872-7148

By: /s/ Yann Geron Yann Geron, Esq. 100 Park Avenue, 15th Floor New York, New York 10017 (212) 878-7900

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------x In re : : THELEN LLP, : : Debtor. : ------------------------------------------------------x

Chapter 7 Case No. 09-15631 (ALG)

ORDER, PURSUANT TO 11 U.S.C. 105(a) AND 363 AND BANKRUPTCY RULES 2002, 6004 AND 9019, APPROVING A STIPULATION BETWEEN THE TRUSTEE AND CLAIMCO, LLC d/b/a SPECTRUM SETTLEMENT RECOVERY, FOR THE SALE OF THE DEBTORS RIGHTS TO A CLASS ACTION SETTLEMENT CLAIM, FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES Upon the application, dated November 16, 2010 (the Application), of Yann Geron (the Trustee), Chapter 7 trustee of the estate of Thelen LLP, the above-captioned debtor (the Debtor), for an order, pursuant to 11 U.S.C. 105(a) and 363 and Rules 2002, 6004 and 9019 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), authorizing the sale of the Debtors claim to a distribution from the Microsoft class action settlement (the Microsoft Claim) for $20,000 (the Purchase Price) to Claimco, LLC, d/b/a Spectrum Settlement Recovery, LLC (Spectrum), free and clear of all known liens, claims and encumbrances; and the Court having jurisdiction to consider the Application and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; and consideration of the Application 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 due and proper notice of the presentment of the Application and the relief granted herein having been provided in accordance with Bankruptcy Rules 2002, 6004 and 9019; and it appearing that no other or further notice need be provided; and the relief requested in the Application being in the best interests of the Debtors estate and creditors; and the Court having determined that the legal

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and factual bases set forth in the Application establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore, NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The relief requested in the Application is granted in its entirety and approved in all respects. 2. The Stipulation be and hereby is approved and the Trustees sale of the Microsoft Claim to Spectrum, as outlined in the Application, and pursuant to the Stipulation, is approved. 3. This Court shall retain jurisdiction with respect to any matters, claims, rights or disputes arising from or related to the implementation of this Order. Dated: New York, New York _______________, 2010 HONORABLE ALLAN L. GROPPER UNITED STATES BANKRUPTCY JUDGE

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