Settlement Addresses Disclosure Deficiencies and Possible Conflicts Relating to McKinsey’s Retention in In Re Westmoreland Coal, No. 18-35672 (Bankr. S.D. Tex.)
The Department of Justice’s U.S. Trustee Program (USTP) has entered into a settlement agreement with global consulting firm McKinsey & Company (McKinsey) requiring McKinsey to forego payment of fees in the Westmoreland Coal bankruptcy case pending in the U.S. Bankruptcy Court for the Southern District of Texas (Westmoreland Case). The agreement, which is subject to review and approval by the bankruptcy court, resolves the USTP’s objection to the adequacy of McKinsey’s disclosures of connections and possible conflicts of interest in the Westmoreland Case.
The USTP previously reached a $15 million settlement with McKinsey in February 2019 to address past disclosure practices by McKinsey in three bankruptcy cases, including the Westmoreland Case. The USTP had objected to McKinsey’s initial application seeking to be retained in the Westmoreland Case, and after the prior settlement McKinsey withdrew that application. McKinsey later made new disclosures in a renewed attempt to be retained in the Westmoreland Case. The USTP again objected, alleging that the disclosures remained deficient because McKinsey failed to disclose the connections of all of its affiliates, failed to make adequate disclosures regarding its investments in entities that could create a conflict of interest, and failed to address inconsistencies concerning its disclosure of confidential client connections.
“In bankruptcy, professionals who are paid at the expense of the debtor company’s creditors, employees, and shareholders must be free of any actual or potential conflicts of interest,” said USTP Director Cliff White. “Under bankruptcy law, this also entails detailed disclosures to ensure that the professionals can provide single-minded loyalty to the debtor’s stakeholders. Should any professionals fail to meet this standard, regardless of size, complexity, or motivation, they will be held accountable. This settlement ensures that McKinsey is held accountable for its conduct in this case.”
Under the terms of the settlement, McKinsey’s application seeking employment in the Westmoreland Case will be withdrawn. As a result, McKinsey will not seek to recover any fees in connection with services rendered in the case that would otherwise be subject to review and approval of the court. While the total amount of fees it is waiving is unknown, McKinsey rendered services throughout the case and likely would have sought approval for, and reimbursement of, millions of dollars in fees and expenses.
In addition, McKinsey has for the first time agreed that it will fully disclose all affiliate connections and all confidential client connections in any bankruptcy case in which it seeks to be retained in the future, unless the bankruptcy court orders otherwise.
The USTP has agreed to withdraw its pending objection in the Westmoreland Case and to work cooperatively, as it does with all professionals seeking to be employed in bankruptcy cases, to ensure the adequacy of McKinsey’s disclosures relating to its proposed retention in future bankruptcy cases. The USTP continues to review McKinsey’s practices with respect to its investment affiliates.
While the settlement resolves any actions that could be brought by the USTP for McKinsey’s inadequate disclosures in the Westmoreland Case, it does not impact the rights of other third parties, including any parties or government agencies not participating in the settlement. This settlement, as with the prior settlement, is limited to resolving McKinsey’s disclosure deficiencies and does not address or resolve, among other things, claims relating to actual or potential conflicts of interest.
The USTP has an ongoing initiative to ensure the rigorous review of applications to employ professionals, including those who have investment arms and complex multi-affiliate organizational structures. The USTP’s public emphasis on enforcing conflict and disclosure set forth in bankruptcy law has resulted in more complete disclosures made by these professionals in cases across the country.
The U.S. Trustee Program is the component of the Justice Department that protects the integrity of the bankruptcy system by overseeing case administration and litigating to enforce the bankruptcy laws. The Program has 21 regions and 90 field office locations. Learn more information on the Program at: https://www.justice.gov/ust.