20-10418-mew Doc 1289 Filed 10/05/21 Entered 10/05/21 12 ...

PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x

In re: JCK LEGACY COMPANY, et al.,

Debtors.1

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Chapter 11 Case No. 20-10418 (MEW) (Jointly Administered)

x Related Dkt. No. 1266, 1267, 1268

GUC RECOVERY TRUSTEE’S STATEMENT IN RESPONSE TO PENSION BENEFIT GUARANTY CORPORATION’S MOTION

FOR AN ORDER TO COMPEL MEDIATION REGARDING THE GUC RECOVERY TRUSTEE’S OBJECTIONS TO PBGC’S CLAIMS

William A. Brandt, Jr., in his capacity as trustee of the JCK Legacy GUC Recovery Trust

(the “GUC Recovery Trustee”) created under GUC Recovery Trust Agreement and the First

Amended Joint Chapter 11 Plan of Distribution of JCK Legacy Company and Its Affiliated Debtors

and Debtors in Possession, through his undersigned counsel, files this statement in response to

Pension Benefit Guaranty Corporation’s Motion for an Order to Compel Mediation Regarding

the GUC Recovery Trustee’s Objections to PBGC’s Claims (the “Mediation Motion”) [Docket

No. 1268].

1 The Debtors in these chapter 11 cases and the last four characters of each Debtor’s tax identification number are: JCK Legacy Company (0478) and Herald Custom Publishing of Mexico, S. de R.L. de C.V. (5UZ1). The location of the GUC Recovery Trustee’s service address for purposes of these chapter 11 cases is: 110 East 42 Street, Suite 1818 New York, NY 10017.

20-10418-mew Doc 1289 Filed 10/05/21 Entered 10/05/21 12:23:10 Main Document Pg 1 of 3

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Docket #1289 Date Filed: 10/05/2021

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STATEMENT

1. On September 20, 2021, the GUC Recovery Trustee filed the GUC Recovery

Trustee’s Objection to Proof of Claim No. 2666 Filed By The Pension Benefit Guaranty

Corporation [Docket No. 1266] and the GUC Recovery Trustee’s Objection to Termination

Premiums Asserted by the Pension Benefit Guaranty Corporation in Proof of Claim No. 2689

[Docket No. 1267] (the “Pension Claim Objections”). In response to the Pension Claim

Objections, the Pension Benefit Guaranty Corporation (“PBGC”) filed the Mediation Motion,

seeking to compel mediation of the Pension Claim Objections.

2. As a general matter, the GUC Recovery Trustee believes that mediation is not

necessary because the issues described in the Pension Claim Objections are straightforward and

predominantly legal in nature. However, to the extent the Court is inclined to order mediation, the

GUC Recovery Trustee proposes the following: (a) an expedited mediation timeframe given the

relative lack of complexity of the Pension Claim Objections and the estate’s interest in reconciling

all remaining claims (which include pending litigation claims) in a timely fashion; (b) the estate

or the JCK Legacy GUC Recovery Trust should not be responsible for mediation fees and

expenses, other than their own professional fees; and (c) PBGC must produce data and information

requested by the GUC Recovery Trustee as a pre-condition to mediation.

3. On the latter point, the GUC Recovery Trustee has filed the GUC Recovery

Trustee’s Motion for an Order Compelling Production of Documents by The Pension Benefit

Guaranty Corporation Pursuant to Fed. R. Bankr. P. 2004 (the “Rule 2004 Motion”). See Docket

No. 1288. A copy of the Rule 2004 Motion is attached as Exhibit A.

4. The GUC Recovery Trustee filed the Rule 2004 Motion to obtain documents and

information necessary for his investigation into PBGC’s Proof of Claim No. 2667 in the estimated

amount of $877,500,000 for unfunded benefit liabilities. From the GUC Recovery Trustee’s


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standpoint, the mediation order should require PBGC to produce the documents and information

requested in the Rule 2004 Motion prior to the commencement of the mediation to avoid the

patently unfair situation that would exist if the GUC Recovery Trustee was compelled to mediate

a potential settlement of PBGC claims without being able to make a fair assessment of their merits.

CONCLUSION

WHEREFORE, to the extent the Court orders mediation, the GUC Recovery Trustee

respectfully requests that any final order related to the Mediation Motion provide: (a) for an

expedited mediation timeframe; (b) that the estate and the JCK Legacy GUC Recovery Trust shall

not be responsible for mediation fees and expenses, other than the fees of their own professionals;

and (c) that PBGC produce the data and information requested in the Rule 2004 Motion as a pre-

condition to mediation.

Dated: October 5, 2021 New York, New York /s/ Leo T. Crowley PILLSBURY WINTHROP SHAW PITTMAN LLP Leo T. Crowley Patrick E. Fitzmaurice

Kwame O. Akuffo 31 West 52nd Street New York, New York 10019 Telephone: (212) 858-1000 Facsimile: (212) 858-1500

[email protected] [email protected] [email protected]

Counsel for GUC Recovery Trustee


mailto:[email protected]


Exhibit A

Rule 2004 Motion

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Objection Deadline: November 10, 2021 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time: November 17, 2021 at 11:00 a.m. (Prevailing Eastern Time)

PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x


Debtors.1

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x

GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION

BENEFIT GUARANTY CORPORATION PURSUANT TO FED. R. BANKR. 2004 William A. Brandt, Jr., in his capacity as trustee (the “GUC Recovery Trustee”) of the

JCK Legacy Company GUC Recovery Trust (the “GUC Recovery Trust”) created under the GUC

Recovery Trust Agreement (the “Trust Agreement”) and the confirmed First Amended Joint

Chapter 11 Plan of Distribution of JCK Legacy Company and its affiliated Debtors and Debtors

in Possession (the “Plan”) [Docket No. 879], by and through undersigned counsel, files this

motion (the “Motion”) pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure




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(“Bankruptcy Rule”), for entry of an order, substantially in the form attached as Exhibit B (the

“Proposed Order”), compelling the Pension Benefit Guaranty Corporation (“PBGC”) to produce

the documents set forth in Exhibit F.

In support of this Motion, the GUC Recovery Trustee submits the Declaration of John H.

Lowell (the “Lowell Decl.”) attached as Exhibit A, and respectfully represents as follows:

INTRODUCTION

1. The GUC Recovery Trustee seeks the production of documents and information

concerning the Debtors’ former employees that forms the basis of PBGC’s Proof of Claim No.

2667 in the estimated amount of $877,500,000 for unfunded benefit liabilities (the “UBL Claim”).

Prior to seeking the requested discovery, counsel for the GUC Recovery Trustee (“Counsel”)

informally requested PBGC to produce various documents and data to allow the GUC Recovery

Trustee and his actuary to evaluate and understand the validity and amount of the UBL Claim.

2. PBGC produced certain of the information requested, but declined to provide the

balance which are needed to allow the GUC Recovery Trustee’s actuary to run a full analysis of

the UBL Claim, thus necessitating this Motion. The first disputed discovery item concerns what

the parties have referred to as census data, that is information concerning the participants of the

McClatchy Pension Plan, including age, gender, service, accrued benefit, and employment

indicators to determine the applicable benefit structure(s). This information is required to be

maintained by the sponsor of any pension plan and is the basis for determining the pension plan’s

benefit liabilities. The GUC Recovery Trustee understands that this information is contained in

one or more (albeit large) spreadsheets maintained by PBGC such that the burden of producing

this information would be effectively nonexistent.



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3. The Code of Federal Regulations provides that “[t]he value of a plan’s benefit

liabilities at the end of a plan year must be determined using the plan census data . . . and the

actuarial assumptions and methods . . . .” 29 C.F.R. § 4010.8(d) (emphasis added). Census data

and other related actuarial information are important in determining the actual value of a pension

plan’s unfunded benefit liability. Title IV of the Employee Retirement Income Security Act of

1974 (ERISA), as amended, 29 U.S.C. §§ 1301-1461 (2018) (“ERISA”) places increased

importance on such data and information by permitting use of “projected census data,” along with

actuarial assumptions and methodologies, to determine a pension plan’s unfunded benefit liability

when the actual census data is unavailable.

4. In refusing to produce the information, PBGC contends that when it assumes

control over a pension plan, it does not use census data to determine the value of a pension plan’s

unfunded benefit liability, such as the UBL Claim. But, this is not dispositive of the issue of

whether the GUC Recovery Trustee is entitled to review and analyze the census data in order to

evaluate the UBL Claim. PBGC may well rely on other information to determine the value of

unfunded benefit liabilities, but regardless of how it chooses to calculate such liability, the GUC

Recovery Trustee and his actuary should not be deprived of data and information mandated by

regulations to determine the actual value of a pension plan’s unfunded benefit liabilities.

5. The second disputed discovery item is the spreadsheet PBGC actually did use to

calculate its claim, referred to by the parties as the UBL spreadsheet. PBGC did provide the GUC

Recovery Trustee with a copy of the UBL spreadsheet, but the version produced was ‘locked’,

meaning neither the GUC Recovery Trustee nor his actuary could test PBGC’s calculations or

evaluate the appropriateness of the formulas or other inputs that underlie those calculations. Such



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an evaluation is necessary for the GUC Recovery Trustee to determine whether the UBL Claim

should be allowed in the amount requested or whether that claim has been overstated.

6. Accordingly, the GUC Recovery Trustee requests that the Court compel PBGC to

produce the census data and unlocked UBL spreadsheet as set forth in Exhibit F.

JURISDICTION

7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334.

8. This is a core proceeding pursuant to 28 U.S.C. § 157(b).

9. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

10. The predicate for the relief requested herein is Bankruptcy Rule 2004.

BACKGROUND

A. General Overview

11. On February 13, 2020 (the “Petition Date”), The McClatchy Company, a

corporation organized under the laws of the state of Delaware, and certain of its affiliates

(the “Debtors”), filed voluntary petitions for relief under chapter 11 of title 11 of the United States

Code with the U.S. Bankruptcy Court for the Southern District of New York. The chapter 11 cases

have been jointly administered for procedural purposes, and all claims against the Debtors have

been transferred to and consolidated in the case for the lead debtor, JCK Legacy Company.

12. On May 21, 2020, this Court entered an Order Establishing Bar Dates for Filing

Proofs of Claim and Approving Form and Manner of Notice Thereof (the “Bar Date Order”), and

set July 10, 2020 at 5:00 p.m. (ET), as the deadline for creditors to file proofs of claim against the

Debtors. See Docket No. 485.

13. Notice of the Bar Date Order was mailed and also published in the New York Times

as required by the Bar Date Order. See Docket Nos. 485, 513.



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14. On September 25, 2020, this Court entered an order (the “Confirmation Order”)

confirming the Plan, which became effective on September 30, 2020 (the “Effective Date”). See

Docket Nos. 879, 886.

B. GUC Recovery Trustee

15. The Plan and Confirmation Order provide for the establishment of the GUC

Recovery Trust pursuant to the Trust Agreement on the Effective Date, at which time the GUC

Recovery Trustee was appointed to administer the GUC Recovery Trust. Confirmation Order at

11, 42; Trust Agreement, § 2.1; Plan, § 6.20.

16. Under the Trust Agreement, the GUC Recovery Trustee retains any and all rights

the Debtors had with respect to any Class 5 claim against or assumed by the GUC Recovery Trust,

and is authorized to review, object to, settle and resolve all general unsecured claims filed against

the Debtors’ estates. Trust Agreement, § 6.1. The GUC Recovery Trustee is also authorized to take

any action that may be or could have been taken by any officer or director of the Debtors or their

estates with respect to the GUC Recovery Trust Assets, id. at § 2.2(e), represent the Debtors’ estate

before any court of competent jurisdiction on matters concerning the GUC Recovery Trust, id. at

§ 2.2(m), to enter into any agreement that is consistent with the Plan, the Confirmation Order and

the GUC Recovery Trust, id. at § 2.2(u), and to take any action that is reasonably necessary to

administer the GUC Recovery Trust and the Plan. Id. at § 2.2(aa).

C. Pension Plan and PBGC UBL Claim

17. Prior to the Petition Date, the Debtors established and maintained The McClatchy

Company Retirement Plan (the “Pension Plan”), a qualified single-employer defined benefit

pension plan pursuant to ERISA.

18. Effective as of August 31, 2020, the Pension Plan was terminated through an



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Agreement for Appointment of Trustee and Termination of Plan between the Debtors and PBGC.

PBGC became the statutory trustee for the Pension Plan on September 4, 2020. As described in

more detail below, PBGC asserts that when the Pension Plan terminated, the Pension Plan’s assets

were insufficient to cover the benefit liabilities owed to plan participants.

19. On July 8, 2020, PBGC timely filed Proof of Claim No. 1765, which asserted a

claim of $1,008,000,000 for unfunded benefit liabilities; that is for the asserted difference between

assets of the Pension Plan and an estimate by PBGC of the liabilities of the Plan under 29 U.S.C.

§ 1362. On October 22, 2020, PBGC filed Proof of Claim No. 2667 (the UBL Claim), which

amends Proof of Claim No. 1765 and asserts a revised estimated amount of $877,500,000 for

unfunded benefit liabilities (which exceeds the Debtors’ scheduled amount of $530,352,623 for

such claim). A copy of the UBL Claim is attached as Exhibit C.

20. In a statement in support of the UBL Claim, PBGC asserts that the Pension Plan

did not have sufficient assets to cover its expected benefit liabilities, and that the amount sought

with the UBL Claim represents PBGC’s estimate of the difference between the Pension Plan’s

assets and its expected liabilities with each calculated as of the termination date of the pension

plan. See Exhibit C at ¶¶ 6, 8.

D. Determination of Pension Plan Unfunded Benefit Liabilities

21. Under ERISA, each year the sponsors of certain unfunded pension plans are

required to determine the value, if any, of an unfunded benefit liability such as the UBL Claim by

using census data and actuarial assumptions and methodologies as set forth under ERISA and the

Code of Federal Regulations.

22. Under section 1310 of ERISA, a pension plan sponsor is required to provide PBGC

with records and information necessary to allow PBGC to determine the liabilities and assets of



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the pension plan. See 29 U.S.C. § 1310(a) and (d). Section 4010.8 of the Code of Regulations

tracks section 1310 and sets forth certain plan actuarial information required to be provided to

PBGC. Among other actuarial information, a plan sponsor is required to provide at the end of

every plan year: (a) the number of retired plan participants and beneficiaries; (b) terminated vested

participants; and (c) active plan participants. 29 C.F.R. § 4010.8(a)(1)(i)-(iii).

23. Section 4010.8(a)(3) also requires a plan sponsor to provide the “amount of benefit

liabilities under the plan, setting forth separately the amount of the liabilities attributable to retired

participants and beneficiaries receiving payments, terminated vested participants, and active

participants, determined, for this purpose in accordance with paragraph (d).” Id. at § 4010.8(a)(3).

The value of a pension plan’s unfunded benefit liability such as the UBL Claim is determined by

using census data of plan participants and actuarial assumptions and methods. See id. at §

4010.8(d).

24. Both census data and actuarial assumptions and methods are necessary to valuing

a plan’s actual benefit liabilities. See id. at § 4010.8(d) (“The value of a plan’s benefit liabilities at

the end of a plan year must be determined using the plan census data described in paragraph (d)(1)

of this section and the actuarial assumptions and methods described in paragraph (d)(2) or, where

applicable, (d)(3) of this section.” [emphasis added]). Census data are undoubtedly important, as

section 4010.8(d) even permits use of a “projected census data” when the “actual plan census data

are not available” to measure the appropriate amount of unfunded benefit liabilities under a plan.

Id. at § 4010.8(d)(1)(ii) (“If actual plan census data are not available, a plan may use a projection

of plan census data from a date within the plan year. The projection must be consistent with

projections used to measure pension obligations of the plan for financial statement purposes and

must give a result appropriate for the end of the plan year for these obligations. . . .”).



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E. PBGC’s Failure to Produce Census Data and Unlocked UBL Spreadsheet 25. Since the Effective Date, the GUC Recovery Trustee, by Counsel, and PBGC have

discussed numerous times the more than $1,000,000,000 in claims PBGC has filed in this case.

Among other things, those discussions have focused on the GUC Recovery Trustee’s efforts to

understand the amount and calculation of the UBL Claim, which PBGC currently estimates at

$877,500,000. To aid in those efforts, the GUC Recovery Trustee requested various documents

and data from PBGC relating to the UBL Claim, including: (a) copies of pension plan documents,

including any amendment made in the five years prior to plan termination;2 (b) the Debtors’ most

recent ERISA/funding actuarial valuation reports, going back to the 2018 plan year; 3 (c) the

Debtors’ most recent PBGC premium filing; 4 (d) the most recent Schedule P information

submitted by the Debtors to PBGC under section 4010 of ERISA;5 (e) the Debtors’ August 2020

plan asset statement;6 (f) a copy of the valuation census data used in the most recent actuarial

valuation of the Debtors’ pension plan;7 and (g) a copy of PBGC’s UBL spreadsheet. A copy of

the information request is attached as Exhibit D.

26. PBGC produced certain of the documents requested but refused to produce the

census data and the unlocked UBL spreadsheet. With respect to the census data, PBGC stated that

2 The pension plan document is used to identify and understand the applicable benefit provisions, including eligibility for early and normal retirement, the available payment forms, etc. 3 The most recent funding valuation report is used to understand the minimum funding requirements, the claim for unmet minimum funding, and provides one liability measure with which to evaluate the UBL claim. 4 The most recent PBGC premium filing is used to understand the unpaid premiums claim and provides another liability measure with which to evaluate the UBL claim. 5 The Schedule P information submitted to PBGC under ERISA Section 4010 provides another liability calculation to evaluate the UBL claim. This liability is calculated using assumptions and methods most similar to those used to develop the UBL claim. Any differences are primarily due to timing. 6 The plan asset statement for August 2020 provides the value of plan assets as of the date of plan termination. This is used to evaluate how much of the benefit liability is unfunded. 7 A copy of the valuation census data could be used to prepare an independent valuation of the UBL. It could also be used to assess demographic assumptions PBGC used in their UBL model.



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it does not use actual plan participant information to calculate an unfunded benefit liability, but

instead uses a uniform calculation methodology in all cases. A copy PBGC’s response is attached

as Exhibit E. Upon information and belief, this methodology involves PBGC making certain

standard or ‘rule of thumb’ adjustments to plan valuation reports previously submitted by the plan

sponsor (here, the Debtors).

27. In the months since, the GUC Recovery Trustee has continued to request that he be

provided with data and information concerning the plan participants, and, in particular, the census

data and UBL spreadsheet, but PBGC has refused each time to provide the requested information.

RELIEF REQUESTED

28. Pursuant to Bankruptcy Rule 2004, the GUC Recovery Trustee seeks entry of the

Proposed Order compelling PBGC to produce the census data and unlocked UBL spreadsheet as

set forth in Exhibit F because the requested discovery is necessary for the GUC Recovery Trustee

and his actuary to perform a full and independent analysis of the UBL Claim.

BASIS FOR RELIEF

A. Rule 2004 Standard

29. Bankruptcy Rule 2004 provides that the Court may authorize an examination of

any entity relating to, among other things: (a) the acts, conduct or property of the debtor, the

liabilities and financial condition of the debtor and (b) any matter which may affect the

administration of the debtor’s estate. Fed. R. Bankr. P. 2004(a) and (b). The scope of discovery

allowed under Rule 2004 is exceedingly broad. See In re Bernard L. Madoff Inv. Secs. LLC, No.

14- 01840, 2014 WL 5486279, at *2 (Bankr. S.D.N.Y. Oct. 30, 2014) (Bankruptcy Rule 2004

permits “broader discovery than is available under the Federal Rules of Civil Procedure.” (citing

Recoton Corp., 307 B.R. at 755); In re Hughes, 281 B.R. 224, 226 (Bank. S.D.N.Y. 2002) (scope



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of discovery under Bankruptcy Rule 2004 is “very broad”) (citation omitted).

30. The purpose of a Rule 2004 examination is to “assist a party in interest in

determining the nature and extent of the bankruptcy estate, revealing assets, examining

transactions and assessing whether wrongdoing has occurred.” In re Recoton Corp., 307 B.R. 751,

755 (Bankr. S.D.N.Y. 2004). Rule 2004 examinations also serve as “an investigatory device

trustees can use in order to quickly gather the information they need in order to do their job

properly.” In re J & R Trucking, Inc., 431 B.R. 818, 821 (Bankr. N.D. Ind. 2010).

31. Discovery is permissible against third parties who “have knowledge of the debtor’s

affairs.” In re Ecam Publ’ns, Inc., 131 B.R. 556, 559 (Bankr. S.D.N.Y. 1991); see also Recoton

Corp., 307 B.R. at 755 (“Any third party who has a relationship with a debtor may be subject to a

Rule 2004 investigation”); In re Enron Corp., 281 B.R. 836, 840 (Bankr. S.D.N.Y. 2002) (“[T]he

Court may authorize the examination of third parties that possess knowledge of the debtor’s acts,

conduct, liabilities or financial condition which related to the administration of the bankruptcy

estate.”). Permissible third-party discovery under Rule 2004 includes the production of documents.

See, e.g., In re Millenium Lab Holdings II, LLC, 562 B.R. 614, 632 (Bankr. D. Del. 2016); In re

Madison Williams & Co., No. 11–15896, 2014 WL 56070, at *4 (Bankr. S.D.N.Y. Jan. 7, 2014).

32. The moving party has the burden of showing good cause to obtain discovery. In re

SunEdison, Inc., 562 B.R. 243, 249 (Bankr. S.D.N.Y. 2017). “Good cause is shown if the

examination sought is “necessary to establish the claim of the party seeking the examination, or if

denial of such request would cause the examiner undue hardship or injustice.” Madison, 2014 WL

56070, at *4 (quoting In re Metiom, 318 B.R. 263, 268 (S.D.N.Y. 2004) [citation omitted]).



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B. Cause Exists to Compel PBGC to Produce the Census Data and the UBL Spreadsheet 33. Cause exists to compel PBGC to produce the census data and unlocked UBL

spreadsheet because both are directly related and necessary to calculate and determine the actual

value of the UBL Claim. The requested discovery is also necessary to allow the GUC Recovery

Trustee’s actuary to perform its own independent analysis of the UBL Claim. Without the census

data and unlocked UBL spreadsheet, the GUC Recovery Trustee and his actuary cannot fully

determine the actual value of the UBL Claim.

34. As previously noted, PBGC has refused to provide the requested discovery despite

repeated requests. PBGC claims that the census data is not relevant to any analysis of the UBL

Claim because PBGC itself does not use the data in submitting the claim. With respect to the

unlocked UBL spreadsheet, PBGC asserts that it will not provide it to the GUC Recovery Trustee

because the formulas and other information that would be viewable in an unlocked version of the

spreadsheet are confidential and proprietary to PBGC.

35. The GUC Recovery Trustee and his actuary should not be deprived of the census

data merely because PBGC does not use or rely on such data. Valuation of the plan’s benefit

liabilities using the census data is a good check on the amount PBGC seeks because it is statutorily

required for plans being administered by their sponsor. As noted, section 4010.8(d) provides that

“[t]he value of a plan’s benefit liabilities at the end of a plan year must be determined using the

plan census data . . . and the actuarial assumptions and methods . . . .”. 29 C.F.R. § 4010.8(d)

(emphasis added).

36. Also, as a creditor of the Debtors’ estate, PBGC has “an obligation to respond to

formal or informal requests for information. . . . This obligation to respond applies regardless [sic]

whether [c]reditors have met their obligation to provide a summary under Rule 3001(c).” In re



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Heath, 331 B.R. 424, 436 (B.A.P. 9th Cir. 2005). Such requests for information are necessary for

persons such as the GUC Recovery Trustee to perform their own independent analysis of a

creditor’s claim and determine whether such claim is prima facie valid or should be reduced.

37. In this case, the recovery rate for general unsecured creditors hinges on the outcome

of the GUC Recovery Trustee’s and his actuary’s investigation of the UBL Claim. To the extent

the claim should be allowed in the amount in which it was asserted, $877,500,000, then recoveries

for general unsecured creditors will likely be less than 4%. On the other hand, to the extent PBGC’s

UBL Claim is overstated (which could be given the Debtors’ unfunded benefit liabilities schedule

amount of $530,352,623 was likely based on section 4010.8(d)), a reduction in that claim will have

a dramatic impact on the recovery of other general unsecured creditors.

38. The requested discovery is necessary to facilitate the GUC Recovery Trustee and

his actuary’s efforts to fully evaluate and determine the actual value of the UBL Claim. It is not

overly burdensome or designed to abuse or harass PBGC. The requested discovery is also within

the scope of the GUC Recovery Trustee’s responsibilities under the Trust Agreement to evaluate

all general unsecured claims (including the UBL Claim) asserted against the Debtors, determine

whether such claims are prima facie valid, and make final distributions to creditors.

39. Accordingly, the GUC Recovery Trustee respectfully requests that the Court

compel PBGC to produce the census data and unlocked UBL spreadsheet set forth in Exhibit F.



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NOTICE

40. Notice of this Motion has been given to parties on the master service list who have

agreed to accept service by email and by first-class mail to: (a) the United States Trustee; (b) the

Attorney General of the United States; (c) Office of the United States Attorney for the Southern

District of New York; and (d) PBGC. The GUC Recovery Trustee submits that such notice is

sufficient and no other or further notice need be provided.

CONCLUSION

WHEREFORE, the GUC Recovery Trustee requests that this Court enter the Proposed

Order attached as Exhibit B: (a) compelling PBGC to produce the documents set forth in Exhibit

F; and (b) granting such other and further relief as the Court deems just and proper.

Dated: October 5, 2021

New York, New York /s/ Leo T. Crowley PILLSBURY WINTHROP SHAW PITTMAN LLP Leo T. Crowley

Patrick E. Fitzmaurice Kwame O. Akuffo

31 West 52nd Street New York, New York 10019 Telephone: (212) 858-1000 Facsimile: (212) 858-1500







Objection Deadline: November 10, 2021 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time: November 17, 2021 at 11:00 a.m. (Prevailing Eastern Time)



Debtors.1

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NOTICE OF MOTION AND HEARING

PLEASE TAKE NOTICE that William A. Brandt, Jr., in his capacity as trustee of the

JCK Legacy Company GUC Recovery Trust (the “GUC Recovery Trust”), filed the GUC

Recovery Trustee’s Motion for an Order Compelling Production of Documents by The Pension

Benefit Guaranty Corporation Pursuant to Fed. R. Bankr. P. 2004 (the “Motion”) with the United

States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”).

PLEASE TAKE FURTHER NOTICE that any objection to the Motion must be filed

on or before November 10, 2021 at 4:00 p.m. (ET) (the “Objection Deadline”) with the


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Bankruptcy Court, Courtroom 617, One Bowling Green, New York, New York 10004. At the

same time, you must serve a copy of any objection by the Objection Deadline upon the

undersigned counsel to the movant and to:

(a) The Debtors, JCK Legacy Company, c/o FTI Consulting, Inc., 1201 W. Peachtree Street, NW, Suite 500, Atlanta, Georgia 30309, Attn.: Sean M. Harding ([email protected]);

(b) Counsel for the Plan Administration Trustee, Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, New York 10001, Attn.: Shana A. Elberg ([email protected]) and Bram A. Strochlic ([email protected]), 300 South Grand Avenue, Suite 3400, Los Angeles, California 90071, Attn.: Van C. Durrer, II ([email protected]), and Destiny N. Almogue ([email protected]) and 525 University Avenue, Palo Alto, California 94301 Attn.: Jennifer Madden ([email protected]);

(c) Co-counsel for the Plan Administration Trustee, Togut, Segal & Segal LLP, One Penn Plaza, Suite 3335, New York, New York 10119, Attn.: Albert Togut ([email protected]) and Kyle J. Ortiz ([email protected]);

(d) The GUC Recovery Trust, c/o Development Specialists, Inc.,

110 East 42nd Street, Suite 1818, New York, New York 10017 Attn.: William A. Brandt., Jr. ([email protected]);

(e) Counsel for the GUC Recovery Trustee, Pillsbury Winthrop

Shaw Pittman LLP, 31 West 52nd Street, New York, New York. Attn.: Leo T. Crowley ([email protected]), Patrick Fitzmaurice ([email protected]), and Kwame O. Akuffo ([email protected]);

(f) The Office of the United States Trustee, U.S. Federal Office Building, 201 Varick Street, Room 1006, New York, New York 10014, Attn.: Benjamin J. Higgins and Brian S. Masumoto; and

(g) Any party that has requested notice pursuant to Bankruptcy

Rule 2002.











3

Only those objections made in writing and timely filed in accordance with the above

procedures will be considered by the Bankruptcy Court.

PLEASE TAKE FURTHER NOTICE THAT, unless the telephonic hearing

procedures set forth in General Order M-543 (Morris, C.J.) are amended, the hearing to consider

the Motion shall be held telephonically via Court Solutions LLC on November 17, 2021, at

11:00 am (ET) before the Honorable Michael E. Wiles in the Bankruptcy Court, Courtroom 617,

One Bowling Green, New York, New York 10004. Instructions to register for Court Solutions

LLC are attached to Gen. Ord. M-543.

PLEASE TAKE FURTHER NOTICE THAT if you fail to respond in accordance with

this Notice and by the Objection Deadline, the Bankruptcy Court may grant the relief requested

in the Motion without further notice or a hearing.

Dated: October 5, 2021 New York, New York /s/ Leo T. Crowley PILLSBURY WINTHROP SHAW PITTMAN LLP Leo T. Crowley

Patrick E. Fitzmaurice Kwame O. Akuffo

31 West 52nd Street New York, New York 10019 Telephone: (212) 858-1000 Facsimile: (212) 858-1500







Exhibit A

Declaration of John H. Lowell

20-10418-mew Doc 1288-2 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit ADeclaration of John H. Lowell Pg 1 of 5


PILLSBURY WINTHROP SHAW PITTMAN LLP 31 West 52nd Street New York, NY 10019-6131 Telephone: 212-858-1000 Facsimile: 212-858-1500 Leo T. Crowley Patrick E. Fitzmaurice Kwame O. Akuffo Counsel for GUC Recovery Trustee

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: JCK LEGACY COMPANY, et al.,

Debtors.1

: : : : : :


x

DECLARATION OF JOHN H. LOWELL IN SUPPORT OF GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION BENEFIT GUARANTY CORPORATION

PURSUANT TO FED. R. BANKR. 2004

Pursuant to 28 U.S.C. § 1746, I, John H. Lowell, submit this declaration (the “Declaration”)

under the penalty of perjury and state that the following is true to the best of my knowledge,

information, and belief:

1. I am a Partner at October Three Consulting, LLC, with more than 30 years of

experience as an actuary, consulting in the benefits and compensation space. I am an Associate of

the Society of Actuaries, an Enrolled Actuary under ERISA, a Fellow of the Conference of

Consulting Actuaries, and a Member of the American Academy of Actuaries. I have served as




2

President of the Conference of Consulting Actuaries and was on its Board of Directors from 2010

through 2020. I have also served as Conference of Consulting Actuaries Council Delegate to the

International Actuarial Association.

2. All statements in this Declaration are based on my review of the UBL Claim1 and

experience performing actuarial analysis of pension benefit obligations, including the valuation of

unfunded benefit obligations.

3. Section 1310 of ERISA requires a pension plan sponsor to provide PBGC with

records and information necessary to allow PBGC to determine the liabilities and assets of the

pension plan. See 29 U.S.C. § 1310(a) and (d). Section 4010.8 of the Code of Regulations, which

enforces ERISA section 1310, sets forth plan actuarial information required to be provided to

PBGC. Among other actuarial information, a plan sponsor is required to provide at the end of

every plan year: (a) the number of retired plan participants and beneficiaries; (b) terminated vested

participants; and (c) active plan participants. 29 C.F.R. § 4010.8(a)(1)(i)-(iii).

4. Section 4010.8(a)(3) also requires a plan sponsor to provide the “amount of benefit

liabilities under the plan, setting forth separately the amount of the liabilities attributable to retired

participants and beneficiaries receiving payments, terminated vested participants, and active

participants, determined, for this purpose in accordance with paragraph (d).” Id. at § 4010.8(a)(3).

The value of a pension plan’s unfunded benefit liability is determined by using census data of plan

participants and actuarial assumptions and methodologies. See id. at § 4010.8(d).

5. Both census data and actuarial assumptions and methods are necessary to valuing

a plan’s actual benefit liabilities. See id. (“The value of a plan’s benefit liabilities at the end of a

plan year must be determined using the plan census data described in paragraph (d)(1) of this

1 Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to them in the Motion.



3

section and the actuarial assumptions and methods described in paragraph (d)(2) or, where

applicable, (d)(3) of this section.” [emphasis added]).

6. Census data are critically important, as section 4010.8(d) permits use of a

“projected census data” when the “actual plan census data are not available” to measure the

appropriate amount of unfunded benefit liabilities under a plan. Id. at § 4010.8(d)(1)(ii) (“If actual

plan census data are not available, a plan may use a projection of plan census data from a date

within the plan year. The projection must be consistent with projections used to measure pension

obligations of the plan for financial statement purposes and must give a result appropriate for the

end of the plan year for these obligations. . . .”).

7. After October Three was retained by the GUC Recovery Trustee, my partner at

October Three requested Counsel to obtain the following information to perform an actuarial

analysis of PBGC’s claims: (a) pension plan documents, including any amendment made in the

five years prior to plan termination; (b) the Debtors’ most recent ERISA/funding actuarial

valuation reports, going back to the 2018 plan year; (c) the Debtors’ most recent PBGC premium

filing; (d) most recent Schedule P information submitted to PBGC under section 4010 of ERISA;

(e) the Debtors’ August 2020 plan asset statement; and (f) a copy of the valuation census data used

in the most recent actuarial valuation. A copy of the October Three’s pension information request

is attached as Exhibit D.

8. PBGC produced certain of the documents requested, but did not produce the census

data and the unlocked UBL spreadsheet. In March and April of 2021, I participated in meetings

with Counsel and PBGC. During those meetings, Counsel and I requested from PBGC a copy of

the census data and UBL spreadsheet necessary for October Three to run a full and independent

actuarial analysis of the UBL claim - i.e., PBGC’s claim for unfunded benefit liabilities.



9. As of the filing date of this Motion, October Three’s analysis of the UBL Claim is

incomplete due to PBGC’s refusal to produce the census data and UBL spreadsheet. With respect

to the census data elements, the Pension Plan includes benefits for several acquired groups and

employee cohorts, determined under different formulas and subject to different early retirement

adjustments, optional payment forms, and other metrics. Among other things, indicators (such as

business unit) to determine the benefit structure would identify the applicable early retirement

schedule for a given participant. We understand that this is one of the areas where PBGC made

broad assumptions in their model and we believe more precise data has the potential to move the

numbers.

10. Thus, the requested discovery is essential to allowing October Three to perform a

complete analysis of the UBL Claim and determine whether the estimated amount asserted is

significantly overstated.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is the

true and correct to the best of my knowledge and belief.

Dated: October 4, 2021 (

4845-7494-8093.v1



Exhibit B

Proposed Order

20-10418-mew Doc 1288-3 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit BProposed Order Pg 1 of 3




Debtors.1

: : : : : :


x

ORDER GRANTING GUC RECOVERY TRUSTEE’S MOTION FOR AN ORDER COMPELLING PRODUCTION OF DOCUMENTS BY THE PENSION

BENEFIT GUARANTY CORPORATION PURSUANT TO FED. R. BANKR. 2004

Upon consideration of the GUC Recovery Trustee’s Motion for an Order Compelling

Production of Documents by The Pension Benefit Guaranty Corporation Pursuant to Fed. R.

Bankr. P. 2004 (the “Motion”); and the Declaration of John H. Lowell; and the Court having

jurisdiction to consider the Motion and relief requested under 28 U.S.C. §§ 157 and 1334; and the

Motion and relief requested being a core proceeding under 28 U.S.C. § 157(b)(2); and venue being

proper before this Court under 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the

Motion having been provided; and it appearing that no other notice is needed; and such relief being




2

in the best interest of the Debtors’ estates and its creditors, and the GUC Recovery Trust2; and the

Court having considered all papers submitted; and for good cause shown;

It is hereby ORDERED that:

1. The Motion is GRANTED to the extent set forth herein.

2. The GUC Recovery Trustee is authorized to seek discovery from PBGC consistent

with the requests and topics described in Exhibit F to the Motion.

3. The GUC Recovery Trustee is authorized, pursuant to Rule 2004, to issue

subpoenas as may be necessary to compel the production from PBGC to accomplish the discovery

authorized by this Order.

4. The GUC Recovery Trustee shall serve each subpoena and a copy of this Order on

PBGC.

5. Nothing herein shall limit the GUC Recovery Trustee’s right to request additional

discovery, including any additional documents, under Bankruptcy Rule 2004 and applicable law,

based on any information that may be revealed as a result of the information provided pursuant to

this Order or otherwise.

6. This Court shall retain jurisdiction over any matter arising from or related to the

enforcement, implementation, or interpretation of this Order.

Dated: November ___ , 2021 ___________________________________

New York, NY Michael E. Wiles United States Bankruptcy Judge

2 Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to them in the Motion.



Exhibit C

Proof of Claim No. 2667

20-10418-mew Doc 1288-4 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit CProof of Claim No. 2667 Pg 1 of 12


Official Form 410 Proof of Claim 04/19

Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Do not use this form to make a request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.

Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies or any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available, explain in an attachment.

A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.

Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.

Part 1: Identify the Claim

1. Who is the currentcreditor?

Name of the current creditor (the person or entity to be paid for this claim)

Other names the creditor used with the debtor

2. Has this claim beenacquired fromsomeone else?

No

Yes. From whom?

3. Where should notices andpayments to thecreditor be sent?

Federal Rule of Bankruptcy Procedure (FRBP) 2002(g)

Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if different)

Name

Number Street

City State ZIP Code

Contact phone

Contact email

Name

Number Street

City State ZIP Code

Contact phone

Contact email

Uniform claim identifier for electronic payments in chapter 13 (if you use one):

___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

4. Does this claimamend one already filed?

No

Yes. Claim number on court claims registry (if known) Filed on MM / DD / YYYY

5. Do you know ifanyone else has fileda proof of claim forthis claim?

No

Yes. Who made the earlier filing?

Fill in this information to identify the case:

Debtor

United States Bankruptcy Court for the: District of (State)

Case number

Official Form 410 Proof of Claimpage 1

✔

✔

202-229-6607

✔

New York

1765

Pension Benefit Guaranty Corporation1200 K Street, N.W.Suite 340Washington, DC 20005

The McClatchy Company

Southern

Pension Benefit Guaranty Corporation

07/08/2020

20-10418

[email protected]



¨2¤!$24*6 "¦«

2010418201022000000000002

Claim #2667 Date Filed: 10/22/2020

Part 2: Give Information About the Claim as of the Date the Case Was Filed

6. Do you have any numberyou use to identify thedebtor?

No

Yes. Last 4 digits of the debtor’s account or any number you use to identify the debtor: ___ ___ ___ ___

7. How much is the claim? $ . Does this amount include interest or other charges?

No

Yes. Attach statement itemizing interest, fees, expenses, or other charges required by Bankruptcy Rule 3001(c)(2)(A).

8. What is the basis of theclaim?

Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.

Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).

Limit disclosing information that is entitled to privacy, such as health care information.

9. Is all or part of the claimsecured?

No

Yes. The claim is secured by a lien on property.

Nature or property:

Real estate: If the claim is secured by the debtor’s principle residence, file a Mortgage Proof of Claim Attachment (Official Form 410-A) with this Proof of Claim.

Motor vehicle

Other. Describe:

Basis for perfection:

Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or recorded.)

Value of property: $

Amount of the claim that is secured: $

Amount of the claim that is unsecured: $ (The sum of the secured and unsecured amount should match the amount in line 7.)

Amount necessary to cure any default as of the date of the petition: $

Annual Interest Rate (when case was filed) %

Fixed

Variable

10. Is this claim based on alease?

No

Yes. Amount necessary to cure any default as of the date of the petition. $

11. Is this claim subject to aright of setoff?

No

Yes. Identify the property:


877,500,000.00

✔

✔

✔

✔

Please see attached Statement in Support.

✔



¨2¤!$24*6 "¦«

2010418201022000000000002

12. Is all or part of the claimentitled to priority under11 U.S.C. § 507(a)?

A claim may be partlypriority and partlynonpriority. For example,in some categories, thelaw limits the amountentitled to priority.

No

Yes. Check all that apply:

Domestic support obligations (including alimony and child support) under 11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).

Up to $3,025* of deposits toward purchase, lease, or rental of property or services for personal, family, or household use. 11 U.S.C. § 507(a)(7).

Wages, salaries, or commissions (up to $13,650*) earned within 180 days before the bankruptcy petition is filed or the debtor’s business ends, whichever is earlier. 11 U.S.C. § 507(a)(4).

Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).

Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5).

Other. Specify subsection of 11 U.S.C. § 507(a)(__) that applies.

Amount entitled to priority

$

$

$

$

$

$

* A m ounts are subject to adjustment on 4/01/22 and every 3 years after that for cases begun on or after the date of adjustment.

13. Is all or part of the claimpursuant to 11 U.S.C.§ 503(b)(9)?

No

Yes. Indicate the amount of your claim arising from the value of any goods received by the debtor within 20 days before the date of commencement of the above case, in which the goods have been sold to the Debtor in the ordinary course of such Debtor’s business. Attach documentation supporting such claim.

$

Part 3: Sign Below

The person completing this proof of claim must sign and date it. FRBP 9011(b).

If you file this claim electronically, FRBP 5005(a)(2) authorizes courts to establish local rules specifying what a signature is.


Check the appropriate box:

I am the creditor.

I am the creditor’s attorney or authorized agent.

I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.

I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.

I understand that an authorized signature on this Proof of Claim serves as an acknowledgement that when calculating the amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.

I have examined the information in this Proof of Claim and have reasonable belief that the information is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on date MM / DD / YYYY

Signature

Print the name of the person who is completing and signing this claim:

NameFirst name Middle name Last name

Title

Company Identify the corporate servicer as the company if the authorized agent is a servicer.

AddressNumber Street

City State ZIP Code

Contact phone Email


Assistant General Counsel

✔

✔


✔

10/22/2020

Erika E. Barnes

/s/Erika E. Barnes



¨2¤!$24*6 "¦«

2010418201022000000000002

Debtor:

20-10418 - The McClatchy CompanyDistrict:

Southern District of New York, New York DivisionCreditor:


1200 K Street, N.W.Suite 340

Washington, DC, 20005

Phone:

202-229-6607Phone 2:

Fax:

202-326-4138Email:

[email protected]

Has Supporting Documentation:

Yes, supporting documentation successfully uploadedRelated Document Statement:

Has Related Claim:

NoRelated Claim Filed By:

Filing Party:

Authorized agent

Other Names Used with Debtor: Amends Claim:

Yes - 1765, 07/08/2020Acquired Claim:

NoBasis of Claim:

Please see attached Statement in Support.Last 4 Digits:

NoUniform Claim Identifier:

Total Amount of Claim:

877,500,000.00Includes Interest or Charges:

NoHas Priority Claim:

NoPriority Under:

Has Secured Claim:

NoAmount of 503(b)(9):

NoBased on Lease:

NoSubject to Right of Setoff:

No

Nature of Secured Amount:

Value of Property:

Annual Interest Rate:

Arrearage Amount:

Basis for Perfection:

Amount Unsecured:

Submitted By:

Erika E. Barnes on 22-Oct-2020 2:21:27 p.m. Eastern TimeTitle:

Assistant General CounselCompany:




KCC ePOC Electronic Claim Filing Summary

For phone assistance: Domestic (866) 810-6898 | International (424) 236-7215

VN: 341FAC73FB903C10564F0BDD3FBD3F42

Your claim can be filed electronically on KCC’s website at https://epoc.kccllc.net/McClatchy.

Official Form 410 Proof of Claim 04/19 Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Other than a claim under 11 U.S.C. § 503(b)(9), this form should not be used to make a claim for an administrative expense arising after the commencement of the case.

Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies or any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available, explain in an attachment.


Fill in all the information about the claim as of the date the case was filed.

Part 1: Identify the Claim

1. Who is the currentcreditor?

Name of the current creditor (the person or entity to be paid for this claim)

Other names the creditor used with the debtor

2. Has this claim been acquired fromsomeone else?

No

Yes. From whom?

3. Where shouldnotices andpayments to thecreditor be sent?

Federal Rule ofBankruptcy Procedure(FRBP) 2002(g)

Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if different)

Name

Number Street

City State ZIP Code

Country

Contact phone

Contact email

Name

Number Street

City State ZIP Code

Country

Contact phone

Contact email

Uniform claim identifier for electronic payments in chapter 13 (if you use one):

___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

4. Does this claim amend one already filed?

No

Yes. Claim number on court claims registry (if known) Filed on MM / DD / YYYY

5. Do you know ifanyone else has fileda proof of claim forthis claim?

No

Yes. Who made the earlier filing?

United States Bankruptcy Court for the Southern District of New York

Indicate Debtor against which you assert a claim by checking the appropriate box below. (Check only one Debtor per claim form.) ☐ The McClatchy Company (Case No. 20-10418)

☐ Aboard Publishing, Inc. (Case No. 20-10419)

☐ Bellingham Herald Publishing, LLC (Case No. 20-10420)

☐ Belton Publishing Company, Inc. (Case No. 20-10421)

☐ Biscayne Bay Publishing, Inc. (Case No. 20-10422)

☐ Cass County Publishing Company (Case No. 20-10423)

☐ Columbus-Ledger Enquirer, Inc. (Case No. 20-10424)

☐ Cypress Media, Inc. (Case No. 20-10417)

☐ Cypress Media, LLC (Case No. 20-10425)

☐ East Coast Newspapers, Inc. (Case No. 20-10426)

☐ El Dorado Newspapers (Case No. 20-10427)

☐ Gulf Publishing Company, Inc. (Case No. 20-10428)

☐ Herald Custom Publishing of Mexico, S. de R.L. de C.V. (Case No. 20-10429)

☐ HLB Newspapers, Inc. (Case No. 20-10430)

☐ Idaho Statesman Publishing, LLC (Case No. 20-10431)

☐ Keltatim Publishing Company, Inc. (Case No. 20-10432)

☐ Keynoter Publishing Company, Inc. (Case No. 20-10433)

☐ Lee's Summit Journal, Incorporated (Case No. 20-10434)

☐ Lexington H-L Services, Inc. (Case No. 20-10435)

☐ Macon Telegraph Publishing Company (Case No. 20-10436)

☐ Mail Advertising Corporation (Case No. 20-10437)

☐ McClatchy Big Valley, Inc. (Case No. 20-10438)

☐ McClatchy Interactive LLC (Case No. 20-10439)

☐ McClatchy Interactive West (Case No. 20-10440)

☐ McClatchy International Inc. (Case No. 20-10441)

☐ McClatchy Investment Company (Case No. 20-10442)

☐ McClatchy Management Services, Inc. (Case No. 20-10443)

☐ McClatchy News Services, Inc. (Case No. 20-10445)

☐ McClatchy Newspapers, Inc. (Case No. 20-10444)

☐ McClatchy Property, Inc. (Case No. 20-10446)

☐ McClatchy Resources, Inc. (Case No. 20-10447)

☐ McClatchy Shared Services, Inc. (Case No. 20-10448)

☐ McClatchy U.S.A., Inc. (Case No. 20-10449)

☐ Miami Herald Media Company (Case No. 20-10450)

☐ N & O Holdings, Inc. (Case No. 20-10451)

☐ Newsprint Ventures, Inc. (Case No. 20-10452)

☐ Nittany Printing and Publishing Company (Case No. 20-10453)

☐ Nor-Tex Publishing, Inc. (Case No. 20-10454)

☐ Oak Street Redevelopment Corporation (Case No. 20-10888)

☐ Olympian Publishing, LLC (Case No. 20-10455)

☐ Olympic-Cascade Publishing, Inc. (Case No. 20-10456)

☐ Pacific Northwest Publishing Company, Inc. (Case No. 20-10457)

☐ Quad County Publishing, Inc. (Case No. 20-10458)

☐ San Luis Obispo Tribune, LLC (Case No. 20-10459)

☐ Star-Telegram, Inc. (Case No. 20-10460)

☐ Tacoma News, Inc. (Case No. 20-10461)

☐ The Bradenton Herald, Inc. (Case No. 20-10462)

☐ The Charlotte Observer Publishing Company (Case No. 20-10463)

☐ The News & Observer Publishing Co. (Case No. 20-10464)

☐ The State Media Company (Case No. 20-10465)

☐ The Sun Publishing Company, Inc. (Case No. 20-10466)

☐ Tribune Newsprint Company (Case No. 20-10467)

☐ Tru Measure, LLC (Case No. 20-10468)

☐ Wichita Eagle and Beacon Publishing Company, Inc. (Case No. 20-10469)

☐ Wingate Paper Company (Case No. 20-10470)

Official Form 410 Proof of Claim page 1


Emily E. Manbeck

1200 K Street, N.W.

Washington DC 20005

U.S.A.

(202) 229-6607

[email protected]

1765 07/08/2020



Part 2: Give Information About the Claim as of the Date the Case Was Filed

6. Do you have any numberyou use to identify thedebtor?

No

Yes. Last 4 digits of the debtor’s account or any number you use to identify the debtor: ___ ___ ___ ___

7. How much is the claim? $ . Does this amount include interest or other charges?

No

Yes. Attach statement itemizing interest, fees, expenses, or other charges required by Bankruptcy Rule 3001(c)(2)(A).

8. What is the basis of the claim?

Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.

Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).

Limit disclosing information that is entitled to privacy, such as health care information.

9. Is all or part of the claimsecured?

No

Yes. The claim is secured by a lien on property.

Nature of property:

Real estate: If the claim is secured by the debtor’s principal residence, file a Mortgage Proof of Claim Attachment (Official Form 410-A) with this Proof of Claim.

Motor vehicle

Other. Describe:

Basis for perfection:

Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or recorded.)

Value of property: $

Amount of the claim that is secured: $

Amount of the claim that is unsecured: $ (The sum of the secured and unsecured amount should match the amount in line 7.)

Amount necessary to cure any default as of the date of the petition: $

Annual Interest Rate (when case was filed) %

Fixed

Variable

10. Is this claim based on a lease?

No

Yes. Amount necessary to cure any default as of the date of the petition. $

11. Is this claim subject to aright of setoff?

No

Yes. Identify the property:


877,500,000.00

See summary page.



12. Is all or part of the claimentitled to priority under11 U.S.C. § 507(a)?

A claim may be partlypriority and partlynonpriority. For example,in some categories, thelaw limits the amountentitled to priority.

No

Yes. Check all that apply:

Domestic support obligations (including alimony and child support) under 11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).

Up to $3,025* of deposits toward purchase, lease, or rental of property or services for personal, family, or household use. 11 U.S.C. § 507(a)(7).

Wages, salaries, or commissions (up to $13,650*) earned within 180 days before the bankruptcy petition is filed or the debtor’s business ends, whichever is earlier. 11 U.S.C. § 507(a)(4).

Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).

Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5).

Other. Specify subsection of 11 U.S.C. § 507(a)(__) that applies.

Amount entitled to priority

$

$

$

$

$

$

* Amounts are subject to adjustment on 4/01/22 and every 3 years after that for cases begun on or after the date of adjustment.

13. Is all or part of the claimpursuant to 11 U.S.C.§ 503(b)(9)?

No

Yes. Indicate the amount of your claim arising from the value of any goods received by the debtor within 20 days before the date of commencement of the above case, in which the goods have been sold to the Debtor in the ordinary course of such Debtor’s business. Attach documentation supporting such claim.

$

Part 3: Sign Below

The person completing this proof of claim must sign and date it. FRBP 9011(b).

If you file this claim electronically, FRBP 5005(a)(2) authorizes courts to establish local rules specifying what a signature is.


Check the appropriate box:

I am the creditor.

I am the creditor’s attorney or authorized agent.

I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.

I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.

I understand that an authorized signature on this Proof of Claim serves as an acknowledgement that when calculating the amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.

I have examined the information in this Proof of Claim and have reasonable belief that the information is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on date MM / DD / YYYY

Signature

Print the name of the person who is completing and signing this claim:

NameFirst name Middle name Last name

Title

Company Identify the corporate servicer as the company if the authorized agent is a servicer.

AddressNumber Street

City State ZIP Code Country

Contact phone Email


Erika E. Barnes

Assistant General Counsel


1200 K Street, N.W.

Washington DC 20005 U.S.A.

(202) 229-3460 [email protected]

10/22/2020

/s/ Erika E. Barnes



IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 11

) JCK Legacy Company, et al., ) Case No. 20-10418

) Debtors. )

STATEMENT OF THE PENSION BENEFIT GUARANTY CORPORATION IN SUPPORT OF ITS AMENDED CLAIM FOR UNFUNDED BENEFIT LIABILITIES

The Pension Benefit Guaranty Corporation (“PBGC”) hereby submits this Statement in

Support of its amended claim against The McClatchy Company (“Debtor”) and each of the other

Debtors for the unfunded benefit liabilities of The McClatchy Company Retirement Plan

(“Pension Plan”), stating:

1. PBGC is a wholly-owned United States government corporation, and an agency of

the United States, that administers the defined benefit pension plan termination insurance program

under Title IV of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.

§§ 1301-1461 (2018) (“ERISA”). PBGC guarantees the payment of certain pension benefits upon

the termination of a single-employer pension plan covered by Title IV of ERISA. When an

underfunded plan terminates, PBGC generally becomes trustee of the plan and, subject to certain

statutory limitations, pays the plan’s unfunded benefits with its insurance funds. See 29 U.S.C.

§§ 1321-1322, 1342, 1361.

2. The Pension Plan is a single-employer defined benefit pension plan covered by

Title IV of ERISA. See 29 U.S.C. § 1321.

3. On February 13, 2020, each of the Debtors filed a voluntary petition under Chapter

11 of the Bankruptcy Code. By Order of this Court, Debtors’ cases are consolidated for

procedural purposes only, and are being jointly administered under case number 20-10418.



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4. On September 4, 2020, PBGC became the statutory trustee of the Pension Plan,

through an Agreement for Appointment of Trustee and Termination of Plan between the Debtor

and PBGC. The date of termination for the Pension Plan is August 31, 2020.

5. On August 31, 2020, each of the Debtors was a contributing sponsor of the Pension

Plan, 29 U.S.C. § 1301(a)(13), or a member of a contributing sponsor’s controlled group,

29 U.S.C. § 1301(a)(14).

6. When the Pension Plan terminated, the assets of the Pension Plan were insufficient

to cover the benefit liabilities of the Pension Plan. This insufficiency is the amount of the Pension

Plan’s unfunded benefit liabilities. See 29 U.S.C. § 1362(b).

7. Upon termination of the Pension Plan, its contributing sponsor and each member of

the contributing sponsor’s controlled group became jointly and severally liable to PBGC for the

total amount of the Pension Plan’s unfunded benefit liabilities. 29 U.S.C. § 1362(a), (b); see

29 U.S.C. § 1301(a)(18).

8. On July 8, 2020, PBGC filed a proof of its contingent claim against each of the

Debtors for the Pension Plan’s unfunded benefit liabilities, in the estimated amount of

$1,008,800.00. PBGC understands this claim was registered as Claim Number 1765. PBGC has

revised the estimated amount of this claim based on the Pension Plan’s termination date. The

estimated amount of the Pension Plan’s unfunded benefit liabilities is $877,500,000.

9. This claim is asserted as a general unsecured claim.

10. By filing this claim, PBGC asserts its claim and demands payment of the unfunded

benefit liabilities of the Pension Plan upon the Pension Plan’s termination date.

11. Documents supporting this claim include the Pension Plan document with

applicable amendments; relevant collateral agreements, if any; United States Internal Revenue



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Service Form 5500s; and annual actuarial valuation reports for the Pension Plan. On information

and belief, Debtors or members of their controlled group have in their possession and control

copies or originals of these documents.

12. PBGC’s investigation of this matter is continuing. The agency reserves the right to

amend, modify and supplement this proof of claim and/or to file additional proofs of claim. This

claim may be subject to a right of setoff by PBGC as an agency of the United States government,

and the right of the United States to withhold subject to offset amounts due from other federal

entities. The filing of this proof of claim is not intended to be and shall not be construed as (1) an

election of remedy or (2) a waiver or limitation of any rights of PBGC, the Pension Plan or any of

its beneficiaries or participants.

13. Under the Order Establishing Bar Dates for Filing Proofs of Claim and Approving

Form and Manner of Notice Thereof signed by this Court on May 21, 2020 (Dkt. 485), this single

proof of claim shall be deemed to constitute the filing of a proof of claim against each and every

Debtor, asserted as a joint and several liability, in this jointly administered proceeding.

Dated: Washington, D.C. October 22, 2020

C. PAUL CHALMERS Acting General Counsel KARTAR S. KHALSA Deputy General Counsel ERIKA E. BARNES Assistant General Counsel ERIN C. KIM KIMBERLY E. NEUREITER EMILY E. MANBECK Attorneys Office of the General Counsel PENSION BENEFIT GUARANTY CORPORATION 1200 K Street, N.W.



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Washington, D.C. 20005-4026 (202) 229-6607 (202) 326-4138 [email protected] and [email protected]

- and - SCHAFER AND WEINER, PLLC JOSEPH K. GREKIN (P52165) 70950 Woodward Ave., Suite 100 Bloomfield Hills, MI 48304 (248) 540-3340 [email protected]



Exhibit D

October Three Information Request

20-10418-mew Doc 1288-5 Filed 10/05/21 Entered 10/05/21 12:01:28 Exhibit DOctober Three Information Request Pg 1 of 3


Boston | Chicago | Dallas | Denver | Jacksonville | Los Angeles | New York | San Francisco

January 20, 2021 Patrick Fitzmaurice Pillsbury Winthrop Shaw Pittman LLP 31 West 52nd Street New York, NY 10019-6131 RE: Pension Information Request Dear Patrick, In order to review the claims made by PBGC in the connection with In re JCK Legacy Company, et al., Case No. 20-10418 (MEW), October Three requests the following information relating to the McClatchy Company Retirement Plan:

+ Pension plan document, including any amendments made in the five years prior to plan termination.

+ Most recent ERISA/funding actuarial valuation reports, going back to the 2018 plan year.

+ Most recent PBGC premium filing. + Most recent Schedule P information submitted to PBGC under ERISA Section

4010. + Plan asset statement for August 2020. + Copy of the valuation census data used in the most recent actuarial valuation.

We expect this information should be readily available in an electronic format. Actuarial valuation reports and valuation census files are typically supplied to plan and company auditors. Copies of the information previously supplied to auditors will likely be sufficient for our purposes. The above items should cover most of the information that we will need. However, if it is determined that we will require additional files or information, we will contact you with our request.



of 2

Patrick Fitzmaurice January 20, 2021

Please feel free to contact myself or John Lowell if you wish to discuss any of the above items or the appropriate delivery method. Regards,

Jason Melbye, FSA, EA Partner Cc: John H Lowell



http://www.octoberthree.com/

Exhibit E

Email Correspondence

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From: Fitzmaurice, Patrick E.To: Barnes ErikaCc: Neureiter KimberlySubject: RE: McClatchyDate: Wednesday, March 17, 2021 1:15:51 PM

Erika, On items 2-4, I think the trustee has succeeded to the debtors’ position with respect to anyconfidentiality/privacy concerns. In other words, by dealing with the trustee on these issues you areeffectively dealing with the debtors so that the unidentified confidentiality restrictions you mentionare covered.It does not seem to me that this is something worth fighting about and even though our position isthat it’s not necessary I’m happy to work with you to get you what you think you need.But, there are not any debtors anymore and I’m not sure who can give you the comfort you arelooking for. Happy to jump on a short call to discuss if that would be helpful. Re item number 6, valuation census data used in the most recent actuarial valuation, while I am notan actuary, my understanding is that actuarial valuations are based on an analysis of informationconcerning a given population by applying various assumptions and inputs, such as discount rate,return on assets and others.But, the valuation fundamentally starts with information about the population being analyzed andwe cannot do that without the information.We also understand and take seriously the issues you raise around PII that may be included in thecensus data. As you may know from prior dealings with them, our consultants at October Three arewell equipped to receive, store and work with PII in a manner that complies with all applicable rulesand regulations. I am happy to set up a call for you or provide you with information concerning theprotocols they follow if that would be helpful. Best,

From: Barnes Erika <[email protected]> Sent: Wednesday, March 17, 2021 11:56 AMTo: Fitzmaurice, Patrick E. <[email protected]>Cc: Neureiter Kimberly <[email protected]>Subject: RE: McClatchy Patrick: We have attached items 1, 5, and 7 from your list. We have gathered items 2-4 and are prepared toprovide them once we receive written consent from the Debtors expressly stating that PBGC maysend such information to you. A confidentiality agreement between PBGC and the GUC Trusteewill not solve the confidentiality/privacy concerns. The concern is not who has a right to contestPBGC’s bankruptcy claims, but who holds the Debtors’ confidentiality/privacy rights. Also, pleaseget back to us on item 6 when you can.





A couple of notes on the items we are providing today:

1. The pension plan document, including any amendments made in the five years prior toplan termination – PBGC is providing these documents as statutory trustee.

5. The Plan asset statement for August 2020 – In addition to providing the August 2020

asset statement as statutory trustee, we are sending the WhiteStar August 2020 statementand the July 2020 asset statement. The WhiteStar statement is considered the mostaccurate source for the real estate values. Our understanding is the July 2020 assetstatement was the most current information available when our actuaries calculatedPBGC’s amended claims.

7. A copy of the PBGC’s UBL Spreadsheet – PBGC is providing these documents as statutory

trustee. Note that the Pension Information Profile is included within the UBL spreadsheet. Let us know if you have any questions. Erika Erika E. BarnesAssistant General CounselOffice of General CounselPension Benefit Guaranty Corporation1200 K Street, NWWashington, DC 20005202.326.4020 x3460202.229.3460 (direct)202.326.4112 (fax)[email protected] From: Fitzmaurice, Patrick E. <[email protected]> Sent: Friday, March 12, 2021 6:50 PMTo: Barnes Erika <[email protected]>Cc: Neureiter Kimberly <[email protected]>Subject: Re: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from another governmentagency. DO NOT click links or open attachments unless you recognize and/or trust the sender. Contact the ServiceDesk with questions or concerns.I will be back to you on number 6. Re 2-4, the GUC Trust for these purposes has succeeded towhatever interests the company has and we can work on a confidentiality agreement if that’s yourconcern.

On Mar 12, 2021, at 6:38 PM, Barnes Erika <[email protected]> wrote:

We have been in the process of gathering documents and looking at confidentialityissues.








We have numbered your requests for the sake of clarity. PBGC is in the process ofgathering items 1, 5, and 7 from your list. We are, however, unable to provideitems 2-4 due to confidentiality restrictions. You may wish to request them fromthe Debtors or ask the Debtors to provide a written consent to PBGC expresslystating that PBGC may send such information to you. As for item 6, PBGC does not use that information when calculating its claims. Asyou may know, PBGC uses a uniform calculation methodology for all cases. Further, such information would include highly sensitive personally identifiableinformation of the pension plan participants. It would be helpful to understand whysuch information is necessary to analyze PBGC’s claims. Could you explain that tous? We expect to get back to you with items 1, 5, and 7 soon and will let you know ifwe have any additional questions. Erika E. BarnesAssistant General CounselOffice of General CounselPension Benefit Guaranty Corporation1200 K Street, NWWashington, DC 20005202.326.4020 x3460202.229.3460 (direct)202.326.4112 (fax)[email protected] From: Fitzmaurice, Patrick E. <[email protected]> Sent: Friday, March 12, 2021 4:28 PMTo: Neureiter Kimberly <[email protected]>Cc: Barnes Erika <[email protected]>Subject: RE: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from anothergovernment agency. DO NOT click links or open attachments unless you recognize and/or trust thesender. Contact the Service Desk with questions or concerns.Good afternoon, any idea when you all will be in a position to start sending us somedocs/info? Thanks.

From: Neureiter Kimberly <[email protected]> Sent: Wednesday, March 3, 2021 3:52 PMTo: Fitzmaurice, Patrick E. <[email protected]>Cc: Barnes Erika <[email protected]>Subject: RE: McClatchy

* EXTERNAL EMAIL *










Hi Patrick: I received your list and have shared with the team. We will let you know if wehave any questions. Thank you, Kimberly Kimberly E. NeureiterAttorneyOffice of the General CounselPension Benefit Guaranty Corporation1200 K Street, N.W.Washington, DC 20005202.229.3581 phone202.326.4112 [email protected]

From: Fitzmaurice, Patrick E. <[email protected]> Sent: Wednesday, March 3, 2021 1:09 PMTo: Neureiter Kimberly <[email protected]>Subject: McClatchy CAUTION: This email originated from outside of the PBGC organization and was not from anothergovernment agency. DO NOT click links or open attachments unless you recognize and/or trust thesender. Contact the Service Desk with questions or concerns.Kim, Thank you again for the call yesterday. Below is a list of documents/data we are lookingfor to help us understand and analyze the PBGC’s claims.

The pension plan document, including any amendments made in the fiveyears prior to plan termination;Copies of the most recent ERISA/funding actuarial valuation reports, goingback to the 2018 plan year;A copy of the company’s most recent PBGC premium filing;A copy of the most recent Schedule P information submitted by thecompany to PBGC under ERISA Section 4010;The Plan asset statement for August 2020;A copy of the valuation census data used in the most recent actuarial valuation;andA copy of the PBGC’s UBL Spreadsheet.

As discussed, once we have this information in hand we think it makes sense for our






consultants at October Three to have an actuarial discussion with the PBGC actuarialstaff concerning the data, assumptions and other relevant inputs into the claims. Wewill be back to you with some suggested dates and times for that after we have madean initial review of these materials. Happy to chat about any of this if that would be helpful. Best, Patrick E. Fitzmaurice | PartnerPillsbury Winthrop Shaw Pittman LLP31 West 52nd Street | New York, NY 10019-6131t +1.212.858.1171 | m [email protected] | website bio<image001.png><image002.png>

The contents of this message, together with any attachments, are intended only for theuse of the individual or entity to which they are addressed and may containinformation that is legally privileged, confidential and exempt from disclosure. If youare not the intended recipient, you are hereby notified that any dissemination,distribution, or copying of this message, or any attachment, is strictly prohibited. If youhave received this message in error, please notify the original sender or the PillsburyWinthrop Shaw Pittman Service Desk at Tel: 800-477-0770, Option 1, immediately bytelephone and delete this message, along with any attachments, from your computer.Nothing in this message may be construed as a digital or electronic signature of anyemployee of Pillsbury Winthrop Shaw Pittman. Thank you.

This e-mail, including any attachments, may constitute a Federal record orother Government property that is intended only for the addressedindividuals. This message may also contain information that is sensitive,confidential, or otherwise protected from disclosure under applicable law.If you are not a named addressee you must not disseminate, distribute orcopy this e-mail. If you have received this e-mail in error, please notify thesender immediately and delete this e-mail from your system.

This e-mail, including any attachments, may constitute a Federal record orother Government property that is intended only for the addressed




https://protect-us.mimecast.com/s/rBohC3195ycjn7vmIguavq

Exhibit F

First Request for Production

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DEFINITIONS

1. “PBGC” refers to the Pension Benefit Guaranty Corporation.

2. “GUC Recovery Trustee” refers to William A. Brandt, Jr., in his capacity as the

trustee of the JCK Legacy GUC Recovery Trust.

3. “Counsel” refers to Pillsbury Winthrop Shaw Pittman LLP.

4. “Census Data” refers to all data, evaluations, reports, lists, assessments, analyses,

and spreadsheets containing information relating to retired plan participants, vested plan

participants, and active plan participants under the Pension Plan (as the term is defined herein) as

determined (for all plans for any information year) either as of the end of the plan year or as of the

beginning of the subsequent plan year.

5. “Debtors” all the McClatchy Newspapers, Inc. companies that filed for bankruptcy

in the United States Bankruptcy Court for the Southern District of New York.

6. “Document” shall be construed as broadly as Federal Rule of Civil Procedure

34(a)(1)(A) permits and shall include, without limitation, writings, drawings, graphs, charts,

photographs, sound recordings, images, letters, correspondence, contracts, agreements,

memoranda, emails, telegrams, notes, newsletters, catalogues, brochures, diaries, reports,

presentations, publications, minutes, agenda items, calendars, calendar entries, inter- or intra-

office communications, statements, investigative reports, announcements, depositions, answers to

interrogatories, pleadings, judgments, newspaper articles, photographs, tape recordings, webinars,

motion pictures and any copies (electronic, photographic, carbon, etc.) of any such material if you



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do not have custody or control of the original. Any comment or notation appearing on any

Document, and not part of the original text, is to be considered a separate “Document.”

7. “Electronically stored information” shall be construed as broadly as Federal Rule

of Civil Procedure 34(a)(1)(A) permits and shall include, but not be limited to, electronic mail (“e-

mail”) and other electronic communications, such as, for example, text messages, instant

messages, Internet posts, and messages communicated via Twitter; websites and blogs; electronic

documents or files of any kind created with or saved using any word processing or other software

programs or formats for creating or storing information, such as, for example, Microsoft Word,

Microsoft Excel, Adobe Acrobat, Microsoft PowerPoint, or Microsoft Access; TIFF files or

images, JPEG files or images, and HTML files or images; any data stored in personal data

management programs such as Microsoft Outlook, for example, electronic calendars or

appointment books, electronic access books, electronic notes and memoranda, and electronic to-

do lists; Internet usage files; telephone logs; audio, video, and graphic files; and voicemails. The

term “electronically stored information” shall be construed to include all available metadata

associated with any electronically stored information. The term “electronically stored information”

encompasses electronic information and data stored on or obtainable from any medium, including

but not limited to, computers, computer servers, magnetic or other back-up tapes, hard drives,

Internet websites or webpages, laptops, cellular phones, smart phones/PDAs, iPads or other tablet

computers, electronic reading devices, hard drives, hard disks, floppy disks, flash drives, USB

storage devices, CD-ROMs, zip drives, memory sticks or memory cards, computer chips, cloud

storage, FTP storage, and any other type of physical, remote, or other storage.

8. “Identify” means (a) with respect to persons, to give, to the extent known, the

person’s full name, present or last known address, and when referring to a natural person,



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additionally, the present or last known place of employment; (b) with respect to documents, either

(i) to give, to the extent known, the (A) type of document; (B) general subject matter; (C) date of

the document; and (D) author(s), addressee(s) and recipient(s); or (ii) to produce the documents,

together with sufficient identifying information to satisfy Federal Rule of Civil Procedure 33(d).

9. “Including” means “including, but not limited to” to bring within the scope of the

discovery sought all responses that might otherwise be construed to be outside its scope.

10. The “Parties” means the GUC Recovery Trustee and PBGC, as those terms are

defined herein.

11. “Pension Plan” refers to The McClatchy Company Retirement Plan.

12. “Person” means any individual, natural person or legal entity, including, without

limitation, any business or governmental entity or association.

13. “Reflecting” means constituting, embodying, memorializing, representing, or

containing in any manner.

14. “Relate to” or “relating to” shall be interpreted broadly and shall include, but not

be limited to, the following meanings: concerning, referring to, demonstrating, describing,

evidencing, reflecting, or constituting.

15. “Request” means any of these requests.

16. “Spreadsheet” refers to the unlocked unfunded benefit liability spreadsheet held by

PBGC.

17. “You” and “Your” means PBGC, as that term is defined herein.



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INSTRUCTIONS

1. Unless otherwise specified, the relevant time period for these Requests is from the

date of termination of the Pension Plan to the date of Your response.

2. The use of the singular form of any word includes the plural, and the use of the

plural form of any word includes the singular.

3. These Document Requests apply to all documents in Your possession, custody, or

control, regardless of the location of such documents and regardless of whether such documents

are held by any other person or entity, including but not limited to, Your attorneys, representatives,

or agents.

4. All Document Requests that are stored electronically, i.e. ESI, must be produced

according to the following, unless otherwise agreed: (a) transmit electronic documents or ESI on

a hard drive, CDs, and/or DVDs, or let us know if you are amenable to an ftp site upload; (b) use

.tiff format for all documents; (c) if you are providing documents in .tiff format, please produce

those documents on Summation-ready CDs or DVDs in .tiff and text format; (d) if you are

providing documents in .tiff format, also produce a Summation load file; (e) however, if the

conversion of documents to .tiff format will introduce any delay into your production, produce the

documents in “as is” format (e.g., pst as pst, Microsoft Word as Microsoft Word, Excel as Excel);

(f) if you are producing emails and attachments in “as is” format, transmit those emails and their

attachments in Microsoft Outlook.pst format with a maximum of 2 GB per file; (g) if you are

producing emails and attachments in “as is” format, also name emails incrementally by custodian

(i.e., Custodian001.pst, Custodian002.pst).



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5. These Document Requests are continuing in nature so as to require supplemental

document production promptly by You if, at any time, you learn that Your disclosures or responses

are incorrect, inaccurate, or incomplete, or you obtain or discover additional responsive

documents.

6. Documents may be processed through an Optical Character Recognition process

(“OCR”) to create searchable text only when there are redactions and/or the original file is not

searchable.

7. All documents should be produced in such a way as to maintain the family

relationships between documents. For example, all e-mails should be produced immediately before

their attachments, and all embedded files should be produced immediately following the

documents within which they had been imbedded.

8. If you withhold any document or portion thereof as responsive to these Document

Requests pursuant to a claim that the document is privileged or subject to work-product protection,

you shall make such claim and identify such documents in a privilege log, the content and form of

which shall be determined in accordance with Rule 9016 the Federal Rules of Bankruptcy

Procedure.

9. If any portion of a document is withheld pursuant to a claim of privilege or work-

product protection, that portion of the document or image shall be marked with the word

“REDACTED” to indicate the location of the withheld information, and the document shall be

included in a privilege log to support the claim of privilege or work-product protection as to the

redacted portion.



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10. Where a document is responsive in part to a request, the entire document shall be

produced without redaction.

11. If any response to these Document Requests asserts ambiguity or vagueness as to

the scope of the Document Request or the definitions of the terms therein, such objection shall not

be asserted as a basis for refusing to produce responsive documents; instead, Your response shall

identify the objection and the interpretation of the scope of the Document Request or term therein

applied in responding to the Document Request.

12. Documents shall be separately produced, as they are kept in the regular course of

business or, in the alternative, organized and labeled so as to correspond to the individual requests

set forth herein. In either case, all documents shall be bates stamped to facilitate identification and

future reference.

REQUESTS

1. All Census Data, including internal and external evaluations, reports, lists,

assessments, analyses, and spreadsheets.

2. All drafts of the Spreadsheet, including internal and external evaluations, reports,

lists, assessments, and analyses.

3. All drafts of the Spreadsheet for the measurement date August 31, 2020.



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