Robert H. Chappell, III, Esq. (VSB #31698)

Jennifer J. West, Esq. (VSB #47522)

Christopher A. Hurley, Esq. (VSB #93575)

Spotts Fain PC

411 East Franklin Street, Suite 600

Richmond, Virginia 23219

Phone: (804) 697-2000 

Fax: (804) 697-2100

Email: rchappell@spottsfain.com

 jwest@spottsfain.com

 churley@spottsfain.com

Counsel for Jennifer J. West,

Chapter 7 Trustee

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________ 

 ) 

In re: ) 

 ) Case No. 20-12470-KHK

ClubX, LLC, ) 

 ) Chapter 7 Proceeding 

 Debtor. ) 

_________________________________________ ) 

MOTION TO APPROVE SETTLEMENT AND COMPROMISE

Comes now Jennifer J. West, Chapter 7 Trustee (the “Trustee”) for the Bankruptcy Estate 

of ClubX, LLC (the “Estate”), by counsel, and hereby moves this Court (the “Motion”) pursuant 

to 11 U.S.C. §§ 105 and 363, and Federal Rule of Bankruptcy Procedure 9019 for entry of an Order 

substantially in the form attached hereto as Exhibit A (the “Approval Order”) approving the 

Settlement Agreement between the Trustee and the following parties: Sport & Health Holdings, 

LLC (“Holdings”), VM Club Properties, LLC (“VM Club”), RT Sport & Health Holding, LLC 

(“RT”), Green Stamps LLC (“Green Stamps”), KonzKettle, LLC (“KonzKettle”), Be The Change, 

L.L.C. (“BTC”), Leslie Ariail, Trustee, EMS Residuary Trust (“EMS Residuary Trust”), Leslie 

Ariail, Trustee, EMS Family Trust (“EMS Family Trust”), Real Property Advisors, L.L.C. 

(“RPA”), The Minkoff Family Investment Club LLC (“Minkoff Family”), Thomas D.W. Fauquier 

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(“Mr. Fauquier”), Russell C. Minkoff (“Russell Minkoff”), and Barry Minkoff (collectively, the 

“Holdings Parties”). In support of her Motion, the Trustee respectfully states as follows: 

Jurisdiction and Parties

1. These matters are core proceedings pursuant to 28 U.S.C. § 157(b)(2), and 

jurisdiction is proper before the Court pursuant to 28 U.S.C. § 1334(a). 

2. Venue is proper before the Court pursuant to 11 U.S.C. §§ 1408 and 1409. 

3. ClubX, LLC (the “Debtor”) is a Virginia limited liability company. On November 

5, 2020 (the “Petition Date”), the Debtor filed a voluntary petition in this Court for relief under 

Chapter 7 of the Bankruptcy Code. 

4. On or about November 5, 2020, H. Jason Gold, Esquire was appointed Chapter 7 

Trustee of the Bankruptcy Estate of ClubX, LLC. Mr. Gold resigned as Chapter 7 Trustee on April 

22, 2022. 

5. Jennifer J. West, Esquire, was appointed as Successor Chapter 7 Trustee of the 

Estate on April 30, 2022, and continues to serve as Trustee of the Debtor’s estate. 

6. Holdings is a limited liability company organized under the laws of the State of 

Delaware and authorized to transact business in Virginia. Holdings is the 100% member of the 

Debtor. On April 23, 2021, Holdings filed a proof of claim in the Debtor’s bankruptcy case, Claim 

No. 2-1, in the amount of $11,986,790.87. 

7. Only one creditor other than Holdings filed a proof of claim in this case. On April 

22, 2021, Worldgate Centre Owner, LLC (“Worldgate”) filed a proof of claim in the Debtor’s 

bankruptcy case, Claim No. 1-1, in the amount of $27,968,342.65, arising from the Debtor’s 

guaranty of a lease of real property from Worldgate to the Debtor’s subsidiary, Sport and Health 

Virginia Properties, L.C. (“S&H Virginia”). 

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8. There is a significant and material history of disputes and litigation between 

Worldgate and the Debtor/Holdings Parties. 

9. Any one or more of the Trustee and Holdings Parties are referred to collectively 

herein as the “Parties.” 

Background 

A. Pre-Petition Operation of the Debtor

10. Prior to August 2014, the Debtor owned and operated a chain of fitness clubs under 

the name of “Sport & Health” (the “Clubs”) through its subsidiaries S&H Virginia, Washington 

Sport & Health, Inc. (“Washington S&H”), Sport and Health Maryland Properties, L.C. (“S&H 

Maryland”), Sport and Health, Inc. (“S&H Inc.”), Sport & Health Spa Services, L.C. (“S&H Spa”), 

Sport and Health Club Management, L.C. (“S&H Management”), and S&H Repository, Inc. f/k/a 

FM/Sport & Health Investments, Inc. (“S&H Repository,”) (collectively, the “S&H Entities”). 

S&H Virginia, S&H Maryland, and Washington S&H owned the Clubs located in Virginia, 

Maryland, and Washington, D.C., respectively, while other of the S&H Entities managed and 

operated the Clubs. Holdings, the S&H Entities, and the Debtor are referred to collectively herein 

as the “Holdings Group.”

11. One of the Clubs (the “Worldgate Club”) was operated out of commercial real 

property that was leased from Worldgate to S&H Virginia. The Debtor executed a guaranty of the 

lease between Worldgate and S&H Virginia (the “Lease”).

12. In or around August 2014, the Debtor and the S&H Entities engaged in a transaction 

through which they, inter alia, sold certain intellectual property and effectively all but three of the 

Clubs and their related assets (the “2014 Transaction”). The Worldgate Club was one of the three 

Clubs excluded from the 2014 Transaction. 

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13. The Trustee has asserted, inter alia, that although the 2014 Transaction involved 

the sale of a majority of the assets of the Debtor or its subsidiaries, the consideration paid for those 

assets did not flow through the Debtor and was instead directed to Holdings. For example, 

Holdings received a Promissory Note in the approximate amount of $21 million (the “Promissory 

Note”) and securities (the “Securities”) from the purchaser. 

14. In March 2018, the Holdings Group was involved in another transaction related to 

the Clubs, through which the Holdings Group received additional consideration (the “2018 

Transaction”). 

15. The Trustee has asserted, inter alia, that the result of the 2018 Transaction was to 

further consolidate the Holdings Group’s assets at the level of Holdings, its members, and/or its 

affiliates, where they were out of the reach of creditors of the Debtor and/or its subsidiaries. For 

instance, the Trustee asserts that Holdings directly received payments on obligations that were 

owed, in part, to the Debtor and/or its subsidiaries, such as the Promissory Note and Securities. 

16. In 2020, Worldgate filed an action for possession in the Circuit Court of Fairfax 

County against S&H Virginia, presumably due to S&H Virginia’s failure to pay rent. On 

November 10, 2020, the Circuit Court entered a judgment for possession. Worldgate thereafter 

terminated the lease and took possession of the premises on February 14, 2021. 

17. The Debtor filed its chapter 7 petition on November 5, 2020, and S&H Virginia 

filed its chapter 7 petition on April 22, 2021. 

B. Post-Petition Background and Disputes

a. 2004 Examinations

18. After the Debtor filed bankruptcy, but prior to the appointment of Ms. West as 

Trustee, between January 12, 2021, and August 19, 2021, the Court granted several motions filed 

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by Worldgate to conduct Rule 2004 examinations of the Debtor, Holdings, and EagleBank (the 

“Worldgate 2004 Exams”) (ECF Nos. 22, 56, 57, 58), which the Court granted over objections of 

the Debtor and/or Holdings (ECF Nos. 33, 72, 73, 74). Pursuant to the Worldgate 2004 Exam, 

Worldgate obtained documents from the Debtor, Holdings, and EagleBank. 

19. After her appointment as Trustee, Worldgate provided the Trustee with the 

documents from the Worldgate 2004 Exam (“Wordgate’s 2004 Documents”). The Trustee 

reviewed Worldgate’s 2004 Documents. 

20. On August 16, 2022, the Trustee filed her Notice of and Motion of Jennifer J. West, 

Chapter 7 Trustee of ClubX, LLC, for Authority to Conduct Examinations Pursuant to Rule 2004 

of the Federal Rules of Bankruptcy Procedure, which the Court granted by Consent Order entered 

August 29, 2022 (the “Trustee’s 2004 Exam,” and collectively with the Worldgate 2004 Exam, 

the “2004 Exams”). 

21. In addition to receiving and considering the documents provided pursuant to the 

2004 Exams, the Trustee informally interviewed a business representative of Holdings, 

informally reviewed certain documents from Holdings, and consulted on numerous occasions 

with Holdings’ counsel regarding the background of the businesses of the Debtor and its 

affiliates. The Trustee further formally conducted a 2004 examination of Holdings’ business 

representative.

22. The documents and information produced by all examinees in the 2004 Exams and 

the informal interview and document review are referred to collectively herein as the “Produced 

Information.”1 Some or all of the Produced Information is subject to the Stipulation and Agreed 

1 In the event that the Court does not grant this Motion, the Trustee reserves all rights to conduct 

such further discovery as may be appropriate.

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Protective Order entered by the Court on May 6, 2021 (the “2021 Protective Order”). (ECF No. 

45.)2

b. Potential Claims Against Holdings Parties 

23. Upon reviewing the Produced Information, the Trustee identified potential claims 

and causes of action against the Holdings Parties, including (i) fraudulent and voluntary 

conveyances and obligations related to the 2014 Transaction and 2018 Transaction; (ii) 

conversion; (iii) equitable claims related to the 2014 Transaction and 2018 Transaction; (iv) breach 

of fiduciary duties and/or breach of trust; and (v) disallowance or recharacterization of Holdings’ 

proof of claim (together with any and all other claims the Trustee raised or could raise or assert on 

behalf of the Estate against the Holdings Parties, the “Trustee Claims”).3 

24. The Trustee negotiated with the Holdings Parties regarding the Trustee Claims, and 

the Trustee Claims are subject to a tolling agreement between the Trustee and the Holdings Parties

(as amended or modified, the “Tolling Agreement”).

c. Claim Objection Against Worldgate 

25. After her appointment as Trustee, the Trustee approached Worldgate to discuss 

certain issues regarding the Worldgate Proof of Claim and attempted unsuccessfully to resolve 

those issues with Worldgate. 

26. On November 4, 2022, the Trustee filed her Claim Objection to the Worldgate 

2 Neither the Trustee nor the Holdings Parties has waived the confidentiality obligations set forth 

in the 2021 Protective Order. All rights and obligations under the 2021 Protective Order are 

reserved.

3 Without limiting the generality of the foregoing, the term, “Trustee Claims,” as used in this 

Motion and in the Approval Order include claims for fraudulent or voluntary conveyances, 

turnover, conversion, violation of the trust fund doctrine, unjust enrichment, imposition of a 

constructive trust, disallowance of a proof of claim, recharacterization of debt as equity, equitable 

subordination, breach of fiduciary duty, and breach of trust.

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Proof of Claim (the “Claim Objection”). (ECF No. 132.) Worldgate filed its Answer to the Claim 

Objection on December 21, 2022. (ECF No. 137.) 

27. The Trustee issued discovery in connection with the Claim Objection and received 

some documents responsive to that discovery. Upon reviewing the documents produced by 

Worldgate, the Trustee unsuccessfully negotiated with Worldgate regarding the Claim Objection.4 

Certain documents and information obtained by the Trustee from Worldgate are subject to the 

2021 Protective Order. 

28. The Worldgate Proof of Claim represents the largest claim filed in the Debtor’s 

bankruptcy case. 

d. Mediation 

29. Rather than engage in costly and protracted litigation, the Trustee, Holdings Parties, 

and Worldgate agreed to participate in a mediation of the Trustee Claims and Claim Objection. 

30. The Trustee believed that a mediation of the Trustee Claims and Claim Objection 

would be the most likely avenue toward a consensual resolution of all issues in this case, as (i) the 

Trustee Claims constitute the primary and potentially largest asset in this case, and (ii) Worldgate’s 

proof of claim is the largest claim filed in this case and the only claim filed by a non-insider 

creditor. 

31. On September 29, 2023, the Trustee filed a Motion Requesting Judicial Mediation 

(the “Mediation Motion”), in which the Trustee sought the appointment of a judicial mediator to 

facilitate a multi-party mediation and negotiations with respect to the Trustee Claims and the Claim 

Objection. (ECF No. 143.) 

4 The Trustee reserves all rights to seek production of any documents responsive to the discovery 

issued to Worldgate that have not been produced, including without limitation by filing a motion 

to compel production.

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32. On November 3, 2023, the Court entered its Order Granting Motion Requesting 

Judicial Mediation (ECF No. 152) (the “Mediation Order”), which was modified by the Joint 

Stipulation Modifying Mediation Order (ECF No. 155) (the “Stipulation”). Pursuant to the 

Mediation Order, the Court appointed the Honorable Kevin R. Huennekens as the mediator (the 

“Mediator”) with respect to the Trustee Claims and Claim Objection.

33. Prior to entry of the Mediation Order and Stipulation, the Trustee was in possession 

of, inter alia, the Produced Information from Holdings and documents produced from Worldgate 

in connection with the Trustee’s discovery related to Claim Objection. Before the mediation, and 

pursuant to the Mediation Order and Stipulation, the Trustee facilitated the exchange of all such 

documents and information between Worldgate and the Holdings Parties as well as the production 

and exchange of new documents and information. 

34. On April 9, 2024, the Mediator conducted a mediation among the Trustee, certain 

of the Holdings Parties’ representatives, and Worldgate representatives (the “Mediation”). During 

the Mediation, the Trustee and the Holdings Parties negotiated in good faith, succeeded in 

resolving their disputes regarding the Trustee Claims, and entered into a Binding Term Sheet 

Settling All Claims Subject to Federal Rule of Evidence 408 (the “Term Sheet”). During the 

Mediation, the Trustee was unable to resolve the Claim Objection with Worldgate. (See Report 

of Judicial Settlement Officer, filed April 12, 2024, ECF No. 157.) 

35. Since the Mediation, the Parties have entered into a more detailed Settlement 

Agreement, which is attached hereto as Exhibit B, and is intended to formalize the agreement 

between the Parties and to supersede the Term Sheet (the “Settlement Agreement”). (For the 

avoidance of doubt, Worldgate is not a party to the Term Sheet or Settlement Agreement, and the 

term “Parties” as used herein shall refer only to one or more of the Trustee and Holdings Parties.) 

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36. The Term Sheet and Settlement Agreement are the results of extensive good-faith 

and arm’s-length negotiations between the Trustee and Holdings Parties, including the 

negotiations facilitated by the Mediator, and resolve all matters between the Trustee and the 

Holdings Parties on the terms set forth herein. 

Proposed Settlement

37. In addition to the usual and customary terms, the material terms5 of the Settlement 

Agreement include the following: 

a. Payment. On the Effective Date (as defined below), and subject to the satisfaction 

of the conditions to the occurrence of the Effective Date (discussed below), 

Holdings shall pay to the Trustee the sum of One Million Two Hundred Fifty 

Thousand and No/100 Dollars ($1,250,000.00) (the “Settlement Payment”).

b. Approval and Bar Order Provision. The Trustee, in consultation with Holdings, 

has prepared this Motion and the Approval Order, including, among other 

customary provisions: (a) a bar order provision substantially in the form set forth 

below (the “Bar Order Provision”); (b) a finding and determination that the Parties 

acted in good faith in negotiating and entering into the Term Sheet and the 

Settlement Agreement; and (c) a finding that the Holdings Parties are entitled to the 

benefits and protections set forth in Section 363(m) of the Bankruptcy Code, such 

that the reversal or modification on appeal does not affect the validity of the 

Settlement Agreement absent a stay pending such appeal. The inclusion of the Bar 

Order Provision, the findings regarding good faith, and the applicability of Section 

363(m) are material terms of the Settlement Agreement. The Holdings Parties and 

the Trustee have approved the form and substance of the Approval Order, which 

may only be waived with the consent of Holdings and the Trustee. 

c. Bar Order Provision. Upon the Effective Date, the Trustee, Debtor, 

the Debtor’s subsidiaries, the Debtor’s creditors and all other 

parties receiving notice of this Motion and the Settlement 

Agreement shall be barred and enjoined from filing, asserting, 

and/or prosecuting any claim, counterclaim, demand, or litigation 

over any of the claims or causes of action released in the Settlement 

Agreement, the Trustee Claims, or other claims or causes of action 

that the Trustee has asserted or could have asserted against the 

5 In the event of any inconsistency between the description of the Settlement Agreement contained 

in this Motion and the terms of the Settlement Agreement, the terms of the Settlement Agreement 

shall govern and control.

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Holdings Parties and/or other Released Parties, or that such person 

could have asserted derivatively on behalf of the Debtor or its 

Estate.

d. Settlement Effective Date. The occurrence of the Effective Date and the 

transactions that are to occur on the Effective Date, as set forth in the Settlement 

Agreement, shall be on the first business day following the satisfaction or due 

waiver in writing of all of the following: (a) the entry of the Approval Order in a 

form and substance that is acceptable to Holdings and the Trustee; (b) the Approval 

Order shall have become a Final Order (unless the Trustee and Holdings agree in 

writing to waive finality); and (c) either (i) the Trustee shall have delivered to 

Holdings a completed, current W-9 and wiring instructions for the Trustee’s 

counsel written on the Trustee’s letterhead, which shall include the verified phone 

number of the authorized recipient so that Holdings can call the authorized recipient 

to verify the wiring instructions verbally, or (ii) the Parties shall have agreed that 

the Settlement Payment shall be made by certified check payable to the Trustee. 

e. Mutual General Release. On the Effective Date, and subject to the conditions 

thereto, and to the concurrent delivery of the Settlement Payment to the Trustee, 

the Trustee (on behalf of herself, the Debtor, the Estate, and each of their respective 

successors and assigns), on the one hand, and the Holdings Parties (on behalf of 

themselves, their heirs, legatees, devisees, successors and assigns), on the other, 

shall release, waive and forever discharge and exonerate each other, and each of 

their parents, subsidiaries, affiliates, owners, agents, attorneys, law firms, 

employees, members, officers, directors, representatives, predecessors, successors, 

assigns, heirs, legatees (collectively, “Released Parties” and individually a 

“Released Party”) of and from any and all claims, demands, causes of action, 

accounts, obligations and liabilities, arising or existing from the day before the 

beginning of time through and including the Effective Date, whether known or 

unknown, matured or unmatured, liquidated or unliquidated, fixed or contingent, 

legal or equitable, direct or derivative (“Released Claims”). Without limiting the 

generality of the foregoing, “Released Claims” include any and all claims, causes 

of action, rights and powers that the Trustee has pursuant to Section 544 of the 

Bankruptcy Code and the Trustee Claims. Notwithstanding the foregoing: (a) 

nothing herein shall release or affect the rights or obligations of the Parties under 

this Agreement, and (b) nothing herein shall release or affect the rights, claims, 

causes of action, counterclaims or defenses of any Party against Worldgate or any 

of Worldgate’s parents, subsidiaries, affiliates, owners, agents, attorneys, law firms, 

employees, members, officers, directors, representatives, successors, assigns, heirs, 

legatees, all such rights being expressly reserved. The Trustee and the Holdings 

Parties hereby represent, warrant, and covenant that they have not assigned, and 

will not assign, any Released Claims to any other person. 

f. Covenant Not to Sue. On the Effective Date, and subject to the conditions thereto, 

and to the concurrent delivery of the Settlement Payment to the Trustee, the Trustee 

(on behalf of herself, the Debtor, the Estate, and each of their successors and 

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assigns), on the one hand, and the Holdings Parties (on behalf of themselves, their 

heirs, legatees, devisees, successors and assigns), on the other, covenant not to sue 

one another, cause or support any third party to sue one another, cause the other to 

be sued, or file any motion, petition, or action concerning any of the Released 

Claims or the subject matter thereof, other than to obtain the approval of and 

enforce the terms of this Agreement.

g. Holdings Proof of Claim. Within five (5) business days following the Effective 

Date, and subject to the satisfaction of the conditions thereto, Holdings shall 

withdraw its proof of claim in the ClubX, LLC bankruptcy case with prejudice. 

h. Tolling. The Trustee and the Holdings Parties shall continue and extend the 

existing Tolling Agreements through and including 30 days after any order on the 

9019 Motion becomes a Final Order (as defined in the Settlement Agreement), at 

which time the tolling agreements shall expire and be of no further effect. 

i. Confidentiality. The confidentiality obligations set forth in the 2021 Protective 

Order (ECF No. 45), the Stipulation and Agreed Protective Order (ECF No. 104) 

and the Mediation Order (ECF No. 152) shall remain in full force and effect. 

38. By this Motion, the Trustee respectfully requests entry of an order, substantially in 

the form of the Approval Order, authorizing and approving the Settlement Agreement, a copy of 

which is attached as Exhibit 1 to the Approval Order.

Basis for Relief

A. The Court Should Approve the Settlement Agreement.

39. Section 105(a) of the Bankruptcy Code provides that “[t]he court may issue any 

order . . . necessary or appropriate to carry out the provisions of this title.” Federal Rule of 

Bankruptcy Procedure 9019 further provides, “On motion by the trustee and after notice and a 

hearing, the court may approve a compromise or settlement.” The Supreme Court of the United 

States has noted that “[c]ompromises are a ‘normal part of the [bankruptcy] process . . . .’” 

Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 

424 (1968). 

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40. “A decision to approve a compromise or settlement under Bankruptcy Rule 9019 

is subject to the Court’s ‘sound discretion.’” In re Meridien Energy, LLC, No. 23-31377-KLP, 

2023 Bankr. LEXIS 2498, at *17 (Bankr. E.D. Va. Oct. 6, 2023). In determining whether to 

approve a compromise and settlement, bankruptcy courts should consider “the probability of the 

trustee’s success in any ensuing litigation, any collection difficulties, the complexity, time and 

expense of the litigation, and the interests of the creditors with proper deference to their reasonable 

views.” In re LeClairRyan PLLC, No. 19-34574-KRH, 2022 Bankr. LEXIS 1817, at *23 (Bankr. 

E.D. Va. June 28, 2022) (quoting In re Austin, 186 B.R. 397, 400 (Bankr. E.D. Va. 1995)). The 

“compromise or settlement will likely gain approval if it is both ‘fair and equitable,’ as well as 

representative of the best interests of the estate as a whole.” In re Three Rivers Woods, No. 99-

3020-T, 2001 Bankr. LEXIS 737, at *18 (Bankr. E.D. Va. Mar. 20, 2001). 

41. In determining whether to approve the proposed settlement, the Court should not 

substitute its judgment for that of the Debtor. See In re Carla Leather, Inc., 44 B.R. 457, 465–66 

(Bankr. S.D.N.Y. 1984). Nor should the Court conduct a “mini-trial” of the underlying case. In 

re Austin, 186 B.R. at 400. Instead, “[t]he Court’s fundamental determination is ‘. . . whether the 

settlement falls below the lowest point in the range of reasonableness.’” In re Three Rivers Wood, 

Inc., 2001 Bankr. LEXIS 737, at *18 (quoting In re Austin, 186 B.R. at 400) (omission in original). 

Where a proposed agreement is fair and reasonable and represents the best interests of the estate 

as a whole, it should gain approval. Id.

42. The Settlement Agreement was entered into in good faith, is the result of an arm’slength negotiation facilitated by the Mediator between the Trustee and Holdings, and meets the 

fair and equitable test. 

43. The Settlement Agreement reasonably accounts for the probability of the Trustee’s 

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success in any litigation of the Trustee Claims, and the hurdles that the Trustee faces in connection 

with prosecution of the Trustee Claims. Certain of the Trustee Claims arise under state law and 

are subject to statutes of limitation that begin to run from the date the cause of action is discovered. 

Because the Trustee Claims are based on conduct that occurred as many as six years before the 

Petition Date, the Holdings Parties have indicated they would raise defenses based on the statutes 

of limitation for those claims. While the Trustee believes that she could overcome statute-oflimitations defenses, these issues nonetheless present significant risks in any litigation over the 

Trustee Claims.

44. Further, many of the Trustee Claims would require intensive fact evidence, which, 

because of the passage of significant time since the alleged conduct, may be difficult to obtain 

through discovery. For example, Holdings has asserted the following regarding the 2014 

Transaction and 2018 Transaction:6

a. As part of the 2014 Transaction, the purchaser gave Holdings the Promissory Note, 

Securities, and $9,782,654 in cash. All of the Debtor’s then existing 

indebtedness—$39,199,552—was paid off.

b. Holdings invested significant resources to help the three retained Clubs succeed.

c. As a result of the 2018 Transaction, S&H Virginia was current on its payments 

under the Worldgate Lease, and all other indebtedness of the Debtor had been paid 

in full.

d. Following the 2018 Transaction, during 2018 and 2019, Holdings injected 

additional funds into the Worldgate Club.

6 The Trustee does not admit any of the facts or characterization asserted by Holdings and to the 

extent the Settlement Agreement is not approved for any reason, the Trustee expressly reserves all 

rights.

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45. Many of the Trustee Claims would also require or benefit from a determination that 

the Debtor was insolvent at certain times, which would be expensive and difficult for the Trustee 

to prove. As discussed above, Holdings has asserted that: (a) the Debtor was current on the 

payment of its debts as a result of the 2014 Transaction, and had eliminated all debt (other than 

future rent claims) as of the 2018 Transaction; and (b) for eighteen months following the 2018 

Transaction, S&H Virginia continued paying full rent under the Worldgate Lease (and continued 

paying all other obligations as well). Further, the Trustee is aware of certain case law suggesting 

that future amounts due under a lease agreement (such as the Worldgate Lease) should not be 

considered for the purposes of calculating solvency.7

 

46. In addition to the substantial hurdles that the Trustee would face with respect to 

establishing insolvency, the Trustee would face difficulties with respect to establishing that the 

Debtor was inadequately capitalized—another component to many of the Trustee Claims. For 

example, Holdings has asserted that between the closing of the 2014 and 2018 Transactions, 

Holdings injected material amounts in cash into the Debtor; arranged for and guaranteed a loan 

from EagleBank for additional capital; and extensively renovated the Worldgate premises. 

Holdings has further asserted that following the 2018 Transaction, Holdings injected additional 

funds into the Debtor. Holdings would argue that these substantial discretionary cash infusions, 

7 See, e.g., In re Heilig-Meyers Co., 319 B.R. 447, 467 (Bankr. E.D. Va. 2004), aff’d, 328 B.R. 471 

(E.D. Va. 2005) (balance sheet tests for insolvency looks for liabilities as of date of transfer, not 

for liabilities debtor will incur for future months’ use of leased facilities; court assigned future rent 

zero value); Eerie World Ent., L.L.C. v. Bergrin, No. 02-CV-6513, 2004 WL 2712197, at *2 n.25 

(S.D.N.Y. Nov. 23, 2004) (granting summary judgment in part based on determination that future 

lease obligations would not be counted in determining insolvency); In re LaBrum & Doak LLP, 

227 B.R. 383, 386–91 (Bankr. E.D. Pa. 1998) (excluding future rent under lease in determining 

insolvency). Other than Holdings, the only creditor to have filed a proof of claim in this case is 

Worldgate, and the Trustee believes that no portion of Worldgate’s claim is based on amounts that 

were due at the time of either of the relevant transactions. 

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totaling approximately $12 million, show that the Debtor was adequately capitalized and that

Holdings and its principals expected the Debtor to succeed.

47. Litigation over the Trustee Claims would be very costly, as it would require 

extensive discovery through the production of documents and depositions of numerous defendants 

and non-defendant third parties. In particular, the Trustee anticipates that she would need to 

consult and retain at least one expert witness on the issues of insolvency and capitalization. 

However, the Debtor’s estate currently lacks the funds to employ an expert. 

48. As outlined above, the Holdings Parties have also indicated that they would 

vigorously defend against the Trustee Claims, which would likely require significant motions 

practice before a multi-day trial. Litigation over the Trustee Claims would be extraordinarily 

cumbersome, expensive, and time consuming for the Trustee and the Estate; however, the Estate 

currently holds only approximately $30,000.00. 

49. In exercising her business judgment to enter into the Settlement Agreement, the 

Trustee considered that the funds available to her were insufficient to fund the litigation and that, 

upon information and belief, the principal defendant (Holdings) holds a substantial fund that is 

available to pay its legal fees and costs (as well as those of the other potential defendants whom, 

upon information and belief, Holdings is required to indemnify). However, the Trustee believes 

that the fund held by Holdings would be reduced by the costs of any litigation. 

50. Even if the Trustee prevailed in litigation over the Trustee Claims, her ability to 

collect on any judgment is uncertain. The potential defendants are sophisticated entities and 

individuals that may have asset protection strategies in place that could make collection difficult. 

Further, the potential defendants’ resources would likely be reduced, if not depleted, by the 

expense of litigation. Thus, there is also a risk that such litigation could result in one or more of 

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the Holdings Parties filing bankruptcy or otherwise being unable to satisfy a judgment.

51. The Settlement Agreement is also in the best interests of the creditors. The 

Settlement Agreement results in a significant recovery for the Estate and the withdrawal of 

Holdings’ proof of claim. Accordingly, all of the funds remaining after payment of administrative 

expenses and the Trustee’s commission will be distributed to the sole remaining creditor, 

Worldgate. Further, while the Parties were not able to reach a global settlement that included 

Worldgate, Worldgate was present at the Mediation and had the opportunity to participate in the 

Mediation to maximize the recovery by the Estate.

52. The Settlement Agreement provides for a material distribution to creditors (i.e., 

Worldgate). Although the mediation did not result in the consensual resolution of Worldgate’s 

claim, the Trustee firmly believes that such claim is materially inflated and subject to significant 

reduction. However, because Holdings has agreed to withdraw its proof of claim upon the 

Effective Date of the settlement, and Worldgate will be the sole recipient of distributions to nonpriority creditors, the Trustee’s Claim Objection may become moot, and the Estate will likely not 

be required to incur further expense in connection with that matter.

53. The Trustee has also considered alternatives to the Settlement Agreement, 

including without limitation: (i) seeking litigation funding from Worldgate or other third parties; 

(ii) entering into an alignment agreement with Worldgate to pursue the Trustee Claims; and (iii) a 

sale of the Trustee Claims to Worldgate. However, these options either were not available to the 

Trustee, or would have been unreasonable or impractical. 

54. Based on the foregoing, the Trustee has concluded in the exercise of her business 

judgment that the settlement is in the best interest of the Estate.

B. Inclusion of a Bar Order Provision is Warranted.

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55. In addition to seeking general authority to enter into the Settlement Agreement, the 

Trustee seeks the imposition of the Bar Order Provision prohibiting and enjoining all persons who 

receive notice of this Motion and the Settlement Agreement from asserting and/or prosecuting any 

of the claims or causes of action the Trustee asserted or could have asserted against any one or 

more of the Holdings Parties, or that such person could have asserted derivatively on behalf of the 

Debtor, the Debtor’s subsidiaries, or the Estate. 

56. Ample authority exists for inclusion of the Bar Order Provision in the Approval 

Order. See In re MCSGlobal Incorporated, 562 B.R. 648, 655–56 (Bankr. E.D. Va. 2017); see 

also United States v. Hartog, 597 B.R. 673, 680 (S.D. Fla. 2019) (approving bar order in settlement 

agreement that enjoined all creditors from pursuing claims arising out of or related to claims the 

trustee could have brought against the settling parties). Further, the Court has jurisdiction to enter 

the Approval Order with the Bar Order Provision. See In re Munford, Inc., 97 F.3d 449, 453 (11th 

Cir. 1996) (nexus between third party claims and bankruptcy case provides related-to jurisdiction). 

This United States District Court and the Fourth Circuit have affirmed this Court’s entry of a bar 

order entered as part of a settlement entered into by a trustee. See Fetner v. Hotel St. Cap., L.L.C., 

No. 1:20-cv-828 (AJT/MSN), 2021 WL 1022585 (E.D. Va. Feb. 5, 2021), aff'd, No. 21-1285, 2021 

WL 4922324 (4th Cir. Oct. 21, 2021).

57. In determining whether a bar order provision is “fair and equitable,” courts consider 

a variety of factors, including (i) whether the non-debtor third-party claims that will be barred are 

interrelated with the estate’s claims; (ii) the likelihood of non-settling defendants prevailing on 

barred claims; (iii) the complexity of the estate’s litigation against the beneficiary of the bar order; 

(iv) whether the litigation by the estate and other parties against the beneficiary of the bar order 

would deplete resources; (v) the benefit of the bar order to the estate; (vi) support by non-objecting 

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parties sought to be enjoined; (vii) consideration being paid by the beneficiary of the bar order; 

and (viii) whether the effect of the bar order is consistent with the Bankruptcy Code’s distribution 

scheme. Hartog, 597 B.R. at 680–81; In re Grove Instruments, Inc., 573 B.R. 307, 315–16 (Bankr. 

D. Mass. 2017). Here, the factors weigh decisively in favor of inclusion of the Bar Order

Provision. 

58. In this case, all of the claims and causes of action that are the subject of the 

Settlement Agreement (and the releases therein) are property of the Estate, and the Trustee is the 

sole party with standing to prosecute, settle, or release such claims and causes of action. “If a 

cause of action is part of the estate of the bankrupt then the trustee alone has standing to bring that 

claim.” Poth v. Russey, 99 F. App’x 446, 457 (4th Cir. 2004) (quoting Nat. Am. Ins. v. Ruppert 

Landscaping Co., Inc., 187 F.3d 439, 441 (4th Cir. 1999)); see also Emoral, Inc. v. Diacetyl (In re 

Emoral, Inc.), 740 F.3d 875, 879 (3d Cir. 2013) (“After a company files for bankruptcy, ‘creditors 

lack standing to assert claims that are “property of the estate.”’” (quoting Bd. of Trustees of 

Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 169 (3d Cir. 2002))).

“Creditors similarly lack standing to bring ‘causes of action [that] are . . . similar in object and 

purpose to claims that the trustee could bring in bankruptcy,’ regardless of whether such claims 

are technically part of the estate of the bankrupt.” Poth, 99 F. App’x at 457 (quoting Nat’l Am. 

Ins. Co., 187 F.3d at 441). Accordingly, the Trustee is the only party with standing to pursue the 

causes of action that would be subject to the Bar Order Provision.

59. The Bar Order Provision is a condition to the effectiveness of the Settlement 

Agreement. The Holdings Parties have legitimate reasons to insist on its inclusion. Worldgate 

has conducted multiple 2004 examinations and threatened litigation against the Holdings Parties. 

60. The Trustee Claims are also complex, such that successful litigation would be 

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difficult and could drag on for years. As discussed above, litigating the Trustee Claims would 

quickly deplete the assets of the Estate. 

61. The Bar Order Provision is also fair and equitable to non-debtor parties. The 

Holdings Parties have agreed to pay the sum of $1.25 million to the Estate and to withdraw 

Holdings’s proof of claim, subject to entry of the Approval Order. Thus, any funds available after 

paying administrative expenses including the Trustee’s commission will be distributed to 

Worldgate as the sole remaining creditor in accordance with the Bankruptcy Code’s distribution 

scheme. 

62. Further, the Bar Order Provision is narrowly tailored to protect the terms of the 

settlement, as it prohibits third parties from asserting only claims that belong to the Estate and that 

are released by the Estate as part of the Settlement Agreement. To the extent third parties, 

including Worldgate, have separate and particularized claims that are not property of the Estate, 

the Bar Order Provision would not impact any such claims. 

Conclusion 

WHEREFORE, the Trustee respectfully requests that the Court enter an order substantially 

in the form of the Approval Order (a) authorizing and approving the Settlement Agreement and 

the terms of the settlement between the Trustee and the Holdings Parties; (b) barring and 

enjoining the Trustee, Debtor, the Debtor’s subsidiaries, the Debtor’s creditors 

and all other parties receiving notice of this Motion and the Settlement 

Agreement from filing, asserting, and/or prosecuting any claim, counterclaim, 

demand, or litigation over any of the claims or causes of action released in the 

Settlement Agreement, the Trustee Claims, or other claims or causes of action 

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that the Trustee has asserted or could have asserted against the Holdings 

Parties and/or other Released Parties, or that such person could have asserted 

derivatively on behalf of the Debtor or its Estate; and (c) granting such other relief as 

the Court deems just and proper. 

Dated: July 1, 2024 Respectfully Submitted,

JENNIFER J. WEST, CHAPTER 7 TRUSTEE

 By: /s/ Robert H. Chappell, III 

Robert H. Chappell, III, Esquire (VSB #31698) 

Jennifer J. West, Esquire (VSB #47522) 

Christopher A. Hurley, Esquire (VSB #93575) 

SPOTTS FAIN PC

411 East Franklin Street, Suite 600 

Richmond, Virginia 23219 

Telephone: (804) 697-2000 

Facsimile: (804) 697-2100 

Email: rchappell@spottsfain.com 

 jwest@spottsfain.com 

 churley@spottsfain.com 

Counsel for Jennifer J. West, Chapter 7 Trustee 

CERTIFICATE OF SERVICE

 I hereby certify that on this 1st day of July 2024, a true copy of the foregoing Motion was 

sent by electronic notice via CM/ECF on all parties requesting electronic notice in this case. I 

further certify that service of the foregoing Motion will be supplemented once a hearing date has 

been selected and set for the Motion. 

/s/ Robert H. Chappell, III 

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Exhibit A – Proposed Order

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Robert H. Chappell, III, Esq. (VSB #31698)

Jennifer J. West, Esq. (VSB #47522)

Christopher A. Hurley, Esq. (VSB #93575)

Spotts Fain PC

411 East Franklin Street, Suite 600

Richmond, Virginia 23219

Phone: (804) 697-2000 

Fax: (804) 697-2100

Email: rchappell@spottsfain.com

 jwest@spottsfain.com

 churley@spottsfain.com

Counsel for Jennifer J. West,

Chapter 7 Trustee

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

In re: )

) Case No. 20-12470-KHK

ClubX, LLC, )

) Chapter 7 Proceeding

Debtor. )

_________________________________________ )

ORDER GRANTING MOTION TO APPROVE SETTLEMENT AND COMPROMISE

Upon consideration of the Motion to Approve Settlement and Compromise (the “Motion”) 

filed by Jennifer J. West, Chapter 7 Trustee (the “Trustee”) for the Bankruptcy Estate of ClubX, 

LLC (the “Estate”), seeking approval of a settlement agreement (the “Settlement Agreement”) 

between the Trustee and Sport & Health Holdings, LLC (“Holdings”), VM Club Properties, LLC, 

RT Sport & Health Holding, LLC, Green Stamps LLC, KonzKettle, LLC, Be The Change, L.L.C., 

Leslie Ariail, Trustee, EMS Residuary Trust, Leslie Ariail, Trustee, EMS Family Trust, Real 

Property Advisors, L.L.C., The Minkoff Family Investment Club LLC, Thomas D.W. Fauquier, 

Russell C. Minkoff, and Barry Minkoff (Holdings and the subsequently named parties being 

referred to collectively as the “Holdings Parties”); and having considered the evidence presented, 

the record in this bankruptcy case, and the arguments of counsel at the hearing held on 

____________ (the “Hearing”); and it appearing that the Trustee has provided adequate notice of 

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the Motion and no further notice of the Motion need be given; and it appearing that good cause 

exists for granting the relief requested in the Motion; it is hereby:1

FOUND AND DETERMINED, that the Trustee and Holdings Parties acted in good faith 

in negotiating and entering into the Term Sheet and the Settlement Agreement, such that the 

Settlement Agreement, this Order, the Trustee, and the Holdings Parties are entitled and subject to 

the protections of 11 U.S.C. § 363(m); and it is further 

FOUND AND DETERMINED, that the Settlement Agreement reflects a proper exercise 

of the Trustee’s business judgment; and it is further

FOUND AND DETERMINED, that the terms of the Settlement Agreement are fair and 

reasonable under the circumstances; and it is further

FOUND AND DETERMINED, that the approval and consummation of the Settlement is 

in the best interest of the Debtor’s Estate; and it is further

FOUND AND DETERMINED, that the Trustee has satisfied the requirements for approval 

of the Settlement Agreement under Federal Rule of Bankruptcy Procedure 9019; and it is further

FOUND AND DETERMINED, that entry of the Bar Order approved herein is necessary 

and appropriate for all the reasons stated in the Motion and on the record at the Hearing;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Motion is GRANTED in its entirety;

2. All objections to the Motion are OVERRULED for the reasons stated on the record 

at the Hearing;

1 All capitalized terms not defined herein shall have the same meaning as defined in the Motion or 

the Settlement Agreement.

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3. The Settlement Agreement, as appended hereto as Exhibit 1, is APPROVED in all 

respects;

4. The Trustee and the Holdings Parties are each authorized to take all actions 

necessary to effectuate the relief granted pursuant to this Order in accordance with the terms of the 

Settlement Agreement;

5. The Trustee and Holdings may mutually agree to waive, without further approval 

from the Court, the condition that this Approval Order be a Final Order absent the existence of a 

stay of the Approval Order, or take any such other action to consummate this Agreement prior to 

the expiration of any time to appeal or petition for review, rehearing, certiorari, reargument or 

retrial of the Approval Order;

6. Upon the Effective Date, the Trustee, Debtor, and all other parties 

receiving notice of this Motion and the Settlement Agreement are hereby

barred and enjoined from filing, asserting, and/or prosecuting any claim, 

counterclaim, demand, or litigation over any of the claims or causes of action 

released in the Settlement Agreement, or that the Trustee asserted or could 

have asserted against the Holdings Parties and/or other Released Parties, or 

that such person could have asserted derivatively on behalf of the Debtor or its 

Estate, including without limitation claims for fraudulent or voluntary 

conveyances, turnover, conversion, violation of the trust fund doctrine, unjust 

enrichment, imposition of a constructive trust, disallowance of a proof of claim, 

recharacterization of debt as equity, equitable subordination, breach of 

fiduciary duty, and breach of trust (the “Trustee Claims”);

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7. The confidentiality obligations set forth in the 2021 Protective Order (ECF No. 45), 

the Stipulation and Agreed Protective Order (ECF No. 104) and the Mediation Order (ECF No. 

152) shall remain in full force and effect; and

8. The Court shall retain jurisdiction over all matters arising from or related to the 

Settlement Agreement and/or to the interpretation, implementation, or enforcement of this Order.

IT IS SO ORDERED. 

ENTER: / /

_________________________________

JUDGE

WE ASK FOR THIS:

/s/ Robert H. Chappell, III

Robert H. Chappell, III, Esquire (VSB #31698)

Jennifer J. West, Esquire (VSB #47522)

Christopher A. Hurley, Esquire (VSB #93575)

SPOTTS FAIN PC

411 East Franklin Street, Suite 600

Richmond, Virginia 23219

Telephone: (804) 697-2000 

Facsimile: (804) 697-2100

Email: rchappell@spottsfain.com 

jwest@spottsfain.com

churley@spottsfain.com

Counsel for Jennifer J. West, 

Chapter 7 Trustee

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/s/ Bradford F. Englander

Bradford F. Englander, Esquire

WHITEFORD TAYLOR & PRESTON, LLP

3190 Fairview Park Drive, Suite 800

Falls Church, Virginia 22042

Telephone: (703) 280-9081

Facsimile: (703) 280-3370

Email: benglander@whitefordlaw.com

Co-Counsel to Sport & Health Holdings, LLC

/s/ C. Bryan Wilson

C. Bryan Wilson, Esquire

WILLIAMS & CONNOLLY LLP

680 Maine Avenue, S.W.

Washington, D.C. 20024

Telephone: (202) 434-5000

Email: bwilson@wc.com

Co-Counsel to Sport & Health Holdings, LLC

LOCAL BANKRUPTCY RULE 9022-1(C) CERTIFICATION

I hereby certify that the foregoing order has been endorsed by or served upon all necessary 

parties.

Date: ____________, 2024 /s/ Robert H. Chappell, III

Counsel

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PARTIES TO RECEIVE COPIES:

Robert H. Chappell, III, Esquire 

Jennifer J. West, Esquire 

Christopher A. Hurley, Esquire 

SPOTTS FAIN PC

411 East Franklin Street, Suite 600

Richmond, Virginia 23219

Telephone: (804) 697-2000 

Facsimile: (804) 697-2100

Email: rchappell@spottsfain.com 

jwest@spottsfain.com

churley@spottsfain.com

Counsel for Jennifer J. West, 

Chapter 7 Trustee

Bradford F. Englander, Esquire

WHITEFORD TAYLOR & PRESTON, LLP

3190 Fairview Park Drive, Suite 800

Falls Church, Virginia 22042

Telephone: (703) 280-9081

Facsimile: (703) 280-3370

Email: benglander@wtplaw.com

Co-Counsel to Sport & Health Holdings, LLC

C. Bryan Wilson, Esquire

WILLIAMS & CONNOLLY LLP

680 Maine Avenue, S.W.

Washington, D.C. 20024

Telephone: (202) 434-5000

Email: bwilson@wc.com

Co-Counsel to Sport & Health Holdings, LLC

Stephen K. Gallagher, Esquire

Nicholas M. DePalma, Esquire

VENABLE LLP

8010 Towers Crescent Drive, Suite 300

Tysons Corner, VA 22182

Phone: (703) 760-1600

Fax: (703) 821-8949

skgallagher@venable.com

nmdepalma@venable.com

Counsel to Worldgate Centre Owner, LLC

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Exhibit B – Settlement Agreement

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