UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov

In re: Chapter 11 Cases 

LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-SMG 

LPT, LLC, Case No. 21-15537-SMG 

LIBERTY POWER MARYLAND, LLC, Case No. 21-15539-SMG 

LIBERTY POWER DISTRICT OF Case No. 21-15540-SMG 

COLUMBIA, LLC, 

 (Jointly administered 21-13797-SMG) 

/ 

DEBTORS’ MOTION PURSUANT TO SECTION 105(a) OF THE BANKRUPTCY 

CODE AND FED. R. BANKR. P. 9019 FOR ENTRY OF AN ORDER APPROVING 

THE TERMS OF A SETTLEMENT BY AND BETWEEN THE DEBTORS AND THE 

COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENERGY 

RESOURCES AND DEPARTMENT OF ENVIRONMENTAL PROTECTION

Liberty Power Holdings, LLC (“Holdings”), Liberty Power District of Columbia, LLC 

(“Liberty District of Columbia”), LPT, LLC (“LPT”) and Liberty Power Maryland, LLC (“Liberty 

Maryland”)(collectively, the “Debtors”), in these chapter 11 cases (these “Chapter 11 Cases”), 

hereby submit this motion (the “Motion”) for entry of an order pursuant to section 105(a) of title 

11 of the United States Code (the “Bankruptcy Code”) and Rule 9019(b) of the Federal Rules of 

Bankruptcy Procedure (the “Bankruptcy Rules”), substantially in the form attached hereto as 

Exhibit A (the “Proposed Order”), approving the terms of that certain Settlement Agreement, 

dated May 12, 2022 (the “Settlement Agreement”) attached hereto as Exhibit B, between Holdings 

and each of the Commonwealth of Massachusetts Department of Energy Resources ( “DOER”), 

and the Commonwealth of Massachusetts Department of Environmental Protection (“MassDEP”) 

(the MassDEP and DOER, together with Holdings, the “Settlement Parties”), which Settlement 

Agreement provides for, among other things, the allowance of a chapter 11 administrative expense 

claim under Bankruptcy Code section 503(b)(1)(A) in the aggregate amount of Four Hundred and 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 1 of 20
2

Seventy Thousand Dollars ($475,000) to and in favor of MassDEP and DOER in satisfaction of 

the claims asserted in the MassDEP Application [ECF No.410] and the DOER Application [ECF 

No. 411] as described in more detail below. In support of this Motion, the Debtors respectfully 

state as follows: 

JURISDICTION AND VENUE 

1. This Court has jurisdiction to consider this Motion pursuant to 28 U.S.C. §§ 157 

and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue of the Debtors’ 

bankruptcy cases and this Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 

2. The statutory predicates for the relief requested herein are section 105(a) of 

Bankruptcy Code and Bankruptcy Rule 9019. 

BACKGROUND 

3. On April 20, 2021 (the “Holdings Petition Date”), Holdings filed a voluntary 

petition in this Court for relief under Chapter 11 of Title 11 of the Bankruptcy Code. Since that 

time, Holdings has operated as a debtor-in-possession pursuant to Sections 1107 and 1108 of the 

Bankruptcy Code. 

4. On June 4, 2021 (the “Subsidiary Petition Date”), each of Liberty District of 

Columbia, LPT and Liberty Maryland filed chapter 11 bankruptcy petitions, which bankruptcy 

cases were jointly administered with the chapter 11 case of Holdings, including to facilitate the 

sale of all or substantially all of the Debtors’ assets, including without limitation, retail customer 

contracts, pursuant to Sections 363 and 365 of the Bankruptcy Code. 

5. As of the date hereof, no creditors’ committee has been appointed in these cases. 

In addition, no trustee or examiner has been appointed. 

6. For a detailed description of the Debtors and their operations, the Debtors 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 2 of 20
3

respectfully refer the Court and parties in interest to the Declaration of Bob Butler, Chief 

Restructuring Officer, in Support of the Chapter 11 Petition and First Day Motions (the “First Day 

Declaration”)[ECF No. 10]. 

RELEVANT BACKGROUND

7. On October 18, 2021, MassDEP filed its Application for Administrative Expenses 

on Behalf of the Commonwealth of Massachusetts’ Department of Environmental Protection (the 

“DEP Application”) [ECF No. 410] seeking allowance of a chapter 11 administrative expense 

claim against Holdings for alternative compliance payments (“ACPs”) totaling $1,232,655.34 that 

Holdings allegedly owes to MassDEP based on the Debtors’ retail energy sales in Massachusetts 

between April 21, 2021 and October 18, 2021. The MassDEP Application further asserts that 

pursuant to certain regulations promulgated by the MassDEP known as the CES Regulations, 

Holdings owes the MassDEP alternative compliance payments because Holdings has not acquired 

the requisite amount of renewable energy credits (“RECs”) and clean energy certificates (“CECs”) 

required for a particular compliance year. 

8. On October 18, 2021, DOER filed its Application for Administrative Expenses of 

the Massachusetts Department of Energy Resources (“DOER Application”) [ECF No. 411] 

seeking allowance of a chapter 11 administrative expense claim against Holdings for ACPs 

totaling approximately $4,347,164.00 that Holdings allegedly owes to DOER based on Holdings’ 

retail energy sales in Massachusetts between April 30, 2021 and October 18, 2021. 

9. On November 8, 2021, the Debtors filed Debtors’ Omnibus Objection to 

Applications For Administrative Expenses Filed by Commonwealth of Massachusetts’ Department 

of Energy Resources And Department of Environmental Protection [ECF No. 445] objecting to 

the MassDEP Application and DOER Application (collectively, the “Applications”). 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 3 of 20
4

10. On December 3, 2022, the Commonwealth of Massachusetts, on behalf of 

MassDEP and DOER filed its Reply to Debtors’ Omnibus Objection to Massachusetts 

Departments of Energy Resources and Environmental Protection’s Application for Administrative 

Expenses (the “Reply”) [ECF No. 489]. 

11. On December 17, 2022, the Debtors’ filed the Debtors’ Sur-Reply in Support of 

Omnibus Objection to Applications for Administrative Expenses filed by the Massachusetts’ 

Department of Energy Resources and the Massachusetts’ Department of Environmental 

Protection (the “Sur-Reply”) [ECF No. 498]. 

12. The Settlement Parties’ opinions differ regarding Holdings’ liability for, and 

amount and priority of, the claims asserted in the MassDEP Application and DOER Application. 

The claims asserted by MassDEP and DOER are complex, involving the intersection of federal 

bankruptcy law and state regulatory programs. Some issues raised by the Applications have yet 

to be fully addressed by any bankruptcy court. Accordingly, the Debtors recognize that further 

litigation of such issues would almost certainly be protracted and costly and potentially jeopardize 

the Debtors ability to confirm a plan, including the possibility that the Applications could be 

granted, thereby burdening these bankruptcy estates with in excess of $5.7 million in allowed 

chapter 11 administrative expense claims. 

13. As a result, the Debtors engaged in good faith, arms’ length settlement discussions 

with MassDEP and DOER. Those settlement discussions resulted in the Settlement Parties 

reaching an agreement resolving the Applications, subject to Bankruptcy Court approval, the terms 

of which are set forth in the Settlement Agreement. 

14. Pursuant to the terms of the Settlement Agreement1

 and subject to the approval of 

                                                            

1 The description of the terms of the Settlement Agreement herein is in summary form. All parties in interest 

are encouraged to read the Settlement Agreement in its entirety. In the event of an inconsistency between 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 4 of 20
5

this Court, Holdings has agreed to an allowed aggregate chapter 11 administrative expense claim 

under Bankruptcy Code section 503(b)(1)(A) in the amount of Four Hundred Seventy-Five 

Thousand dollars ($475,000.00) in favor of MassDEP and DOER, which will be paid only if and 

when Holdings files and confirms a chapter 11 plan of reorganization/liquidation in these Chapter 

11 Cases. 

RELIEF REQUESTED

15. By this Motion, the Debtors request that the Court enter the Proposed Order (a) 

approving the Settlement Agreement pursuant to Bankruptcy Code section 105(a) and Bankruptcy 

Rule 9019(b), (b) granting MassDEP and the DOER an allowed chapter 11 administrative expense 

claim under Bankruptcy Code section 503(b)(1)(A) in the aggregate amount of Four Hundred and 

Seventy-Five Thousand dollars ($475,000.00”)(the “Settlement Claim”), with the Settlement 

Claim to be treated in accordance with the terms of any chapter 11 plan confirmed in these Chapter 

11 Cases; provided however such Settlement Claim will not be subject to payment unless and until 

Holdings files and confirms a chapter 11 plan of reorganization/liquidation in these Chapter 11 

Cases. 

BASIS FOR RELIEF

A. The Settlement Agreement Should be Approved.

16. Fed. R. Bankr. P. 9019(a) provides that: “On motion by the trustee and after notice 

and a hearing, the court may approve a compromise or settlement. Notice shall be given to 

creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 

and to any other entity as the court may direct.” Fed. R. Bankr. P. 9019(a). 

17. Compromises and settlements are looked upon favorably in bankruptcy cases 

                                                            

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

terms of the Settlement Agreement shall control. 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 5 of 20
6

because they “minimize costly litigation and further parties’ interests in expediting the 

administration of the bankruptcy estate.” Motors Liquidation Co., 555 B.R. 355, 364-65 (Bankr. 

S.D.N.Y. 2016) (citing Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir. 1996)); see also 

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

424 (1968); Martin v. Kane (In re A&C Properties), 784 F.2d 1377, 1380-81 (9th Cir. 1986); 10 

Collier on Bankruptcy ¶ 9019.01 (16th ed. 2017) (“Compromises are favored in bankruptcy.”). 

18. Approval of a settlement in a bankruptcy proceeding is within the sole discretion 

of the Court. In re Arrow Air, 85 BR 891 (Bankr. S.D. Fla. 1988). The standards for approval are 

well settled and require the Court to inquire into the reasonableness of the proposed settlement. 

See, e.g., Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 

U.S. 414, 424 (1968); In re W.T. Grant Co., 699 F.2d 599, 608 (2d Cir.), cert. denied, sub nom., 

Cosoff v. Rodman, 464 U.S. 822 (1983); Fla. Trailer and Equip. Co. v. Deal, 284 F.2d 567, 571 

(5th Cir. 1960). The inquiry need only determine whether the settlement falls below the lowest 

point of the range of reasonableness. See W.T. Grant Co., 699 F.2d at 608. 

19. In the Eleventh Circuit, the Court must consider the following factors in 

determining whether to approve the settlement: (i) the probability of success in the litigation; (ii) 

the difficulties, if any, to be encountered in the matter of collection; (iii) the complexity of the 

litigation involved and the expense, inconvenience and delay necessarily attending it; and (iv) the 

paramount interest of the creditors and proper deference to their reasonable views in the premises. 

In re Justice Oaks, II, Ltd., 898 F.2d 1544, 1549 (11th Cir.), cert. denied, 498 U.S. 959 (1990) 

(establishing the legal standard for approval of settlements). 

20. In evaluating the settlement, the Court “need not rest its decision whether to 

approve a settlement upon a resolution of ultimate factual and legal issues which underlie the 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 6 of 20
7

disputes that are proposed to be compromised ... rather, the Court may, and should, make a 

pragmatic decision on the basis of all equitable factors.” In re Holywell Corp., 93 B.R. 291 (Bankr. 

S.D. Fla. 1988) (emphasis in original, citations omitted). 

B. Application of Relevant Factors to the Settlement Agreement.

21. The Settlement Agreement contemplated herein is in essence a straightforward 

resolution of disputed claims. Notwithstanding the complexity of the facts and legal issues related 

to this matter, there is no novel or innovative mechanisms proposed or required to faithfully carry 

out the terms of the Settlement Agreement. No such mechanics are necessary because the 

Settlement Agreement calls for nothing more than the allowance of a chapter 11 administrative 

expense claim and releases between the parties. Similar settlements have been approved by other 

courts. See e.g., In re Agera Energy LLC, Case No. 19-23802 (RDD) [Docket No. 592] (Bankr. 

S.D.N.Y. March 30, 2020) (approving settlement of claims in return for payment); In re 1515-

GEEnergy Holding Co. LLC, Case No. 19-10303 (LSS) [Docket No. 561] (Bankr. D. Del. January 

13, 2020) (approving settlement of civil dispute in return for one-time payment); In re Cocoa Serv., 

L.L.C., Case No. 17-11936 (JLG) [Docket No. 280] (Bankr. S.D.N.Y. November 30, 2018) 

(approving settlement of civil dispute in return for an allowed general unsecured claim); In re 

SunEdison, Inc, Case No. 16-10992 (SMB) [Docket No. 4363] (Bankr. S.D.N.Y. November 27, 

2017) (approving settlement in return for one-time payment); In re AVAYA Inc, Case No. 17-10089 

(SMB) [Docket No. 1351] (Bankr. S.D.N.Y. October 16, 2017) (approving settlement in return for 

an allowed general unsecured claim). 

22. The Settlement Agreement is the product of arms’ length, good faith negotiations 

between the Settlement Parties. Other than the terms set forth in the Settlement Agreement, there 

are no side agreements, arrangements, or understandings between the Debtors, MassDEP or 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 7 of 20
8

DOER. The compromise contained in the Settlement Agreement presents the most efficient 

resolution of this dispute. Considering all the circumstances as a whole, the consensual resolution 

of the parties’ dispute is in the best interest of the Debtors and its creditors. 

23. First, approval of the Settlement Agreement will allow the parties to avoid costly, 

time-consuming, and distracting litigation. The underlying litigation between the Settlement 

Parties involves complex factual and legal issues, hence there is no question that substantial 

litigation risk exists. The Debtors cannot guarantee that they will prevail on the underlying 

litigation, and even if they did, there is no question that substantial costs must be incurred to do 

so, not the least of which are time and legal fees. If MassDEP and DOER pursue their claims 

through to judgment, such litigation would take considerable time, could involve potential appeals 

and potentially jeopardize the Debtors’ ability to pay other stakeholders in this case. 

24. Second, if the Debtors were not successful, then the allowance of the MassDEP 

and/or DOER’s asserted chapter 11 administrative expense claim would almost certainly bring 

these Chapter 11 Cases to an abrupt end. The DOER Application seeks an administrative expense 

claim of $4,347,164.00 against Holdings’ estate. The MassDEP Applications seeks an 

administrative expense claim between $379,289.13 and $1,232,655.34. Therefore, if MassDEP 

and/or DOER’s claims were to be allowed in whole or in part, then the Debtors would likely be 

unable to confirm a chapter 11 plan, to the detriment of all creditors of the Debtors’ estates. See 

11 U.S.C. § 1129(a)(9)(A) (requiring payment in full in cash of all administrative expense claims 

upon plan confirmation). In contrast, the Settlement Agreement provides certainty in the amount 

that will be paid to MassDEP and DOER on account of their asserted chapter 11 administrative 

expense claims and thereby allows the potential to confirm a plan in these chapter 11 cases. 

Therefore, there should be no question that Justice Oaks Factors Nos. 1, 2 and 3 strongly favor the 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 8 of 20
9

approval of the Settlement Agreement. 

25. Furthermore, it is self-evident that, by agreeing to the Settlement Agreement, the 

Debtors believe that the Settlement Agreement is fair and favorable. This belief is a sound exercise 

of the Debtors’ business judgment, formed after lengthy negotiations with the Debtors’ advisors. 

Given the uncontroverted reasonableness of the Debtors’ business judgment, the Court may give 

weight to the Debtors’ opinion that the settlement is fair and equitable. The Debtors respectfully 

submit that an exercise of discretion to do so is warranted for purposes of this Motion. Moreover, 

the Debtors’ secured lender, Boston Energy Trading and Marketing, LLC, fully supports the 

Settlement Agreement. 

26. In consideration of the foregoing factors, the Debtors respectfully submit that the 

settlement and compromise contained in the Settlement Agreement falls well above the lowest 

point in the “range of reasonableness,” and satisfies the legal standard set forth in Justice Oaks. 

While the professionals for each of the Settlement Parties all feel strongly about their respective 

litigation positions, it is in the best interests of the bankruptcy estates to seek approval of the 

Settlement Agreement under the facts and circumstances of these cases. 

WHEREFORE, the Debtors respectfully request that the Court enter the Proposed Order 

attached hereto as Exhibit A (i) approving the terms of the Settlement Agreement, and (ii) granting 

such other relief as the Court deems appropriate under the circumstances. 

Dated: June 14, 2022. 

Respectfully Submitted, 

 GENOVESE JOBLOVE & BATTISTA, P.A. 

Counsel for Debtors-in-Possession 

100 Southeast Second Street, Suite 4400 

 Miami, Florida 33131 

 Telephone: (305) 349-2300 

 Facsimile: (305) 349-2310 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 9 of 20
10

 By: /s/ Paul J. Battista 

 Paul J. Battista, Esq. 

Florida Bar No. 884162 

pbattista@gjb-law.com 

Mariaelena Gayo-Guitian, Esq. 

Florida Bar No. 813818 

mguitian@gjb-law.com 

Heather L. Harmon, Esq. 

Florida Bar No. 13192 

hharmon@gjb-law.com 

 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 10 of 20
11

EXHIBIT “A” 

(PROPOSED ORDER) 

 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 11 of 20
12

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov

In re: Chapter 11 Cases 

LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-SMG 

LPT, LLC, Case No. 21-15537-SMG 

LIBERTY POWER MARYLAND, LLC, Case No. 21-15539-SMG 

LIBERTY POWER DISTRICT OF Case No. 21-15540-SMG 

COLUMBIA, LLC, 

 (Jointly administered 21-13797-SMG) 

/ 

ORDER GRANTING DEBTORS’ MOTION PURSUANT TO SECTION 105(a) OF THE 

BANKRUPTCY CODE AND FED. R. BANKR. P. 9019 TO APPROVE THE TERMS OF 

A SETTLEMENT BY AND BETWEEN THE DEBTORS AND THE 

COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENERGY 

RESOURCES AND DEPARTMENT OF ENVIRONMENTAL PROTECTION

THIS MATTER came before the Court on June ___2022, at __am/pm (the “Hearing”) 

upon the motion (the “Motion”) of the above-captioned debtors and debtors in possession (the 

“Debtors”) for entry of an Order, pursuant to Bankruptcy Code section 105(a) and Bankruptcy 

Rule 9019, approving the terms of that certain settlement agreement (the “Settlement Agreement”), 

dated May 12, 2022, attached to the Motion as Exhibit B, between Holdings and each of the 

Commonwealth of Massachusetts Department of Energy Resources (the “DOER”), and the 

Commonwealth of Massachusetts Department of Environmental Protection (the “MassDEP”) 

[ECF No. ____]; and the Court having jurisdiction to consider the Motion pursuant to 28 U.S.C. 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 12 of 20
13

§§ 157(a) and 1334; having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); 

and that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 

1408 and 1409; having found that the relief requested in the Motion is in the best interests of the 

Debtors’ estates, their creditors, and other parties in interest; and having found that the Debtors’ 

notice of the Motion and opportunity for a hearing on the Motion were appropriate and no other 

notice need be provided; and having reviewed the Motion and heard the statements in support of 

the relief requested therein at the Hearing; and having determined that the legal and factual bases 

set forth in the Motion and at the Hearing establish just cause for the relief granted herein, it is 

ORDERED THAT:

1. The Motion is GRANTED in its entirety. 

2. The Settlement Agreement is approved pursuant to Bankruptcy Code section 105(a) 

and Bankruptcy Rule 9019(b) in its entirety. 

3. The Debtors are authorized and empowered to take such actions as may be 

reasonably necessary to implement and effectuate the terms of the Settlement Agreement. 

4. This Court shall retain jurisdiction with respect to all matters, claims, rights, and 

obligations arising from or related to the implementation of this Order. 

### 

Submitted By: 

Paul J. Battista, Esq. 

Genovese Joblove & Battista, P.A. 

Counsel for Debtors-in-Possession 

100 SE 2nd Street, Suite 4400 

Miami, Florida 33131 

Telephone: 305-349-2300 

pbattista@gjb-law.com

Copies to: 

Paul J. Pattista, Esq. [Attorney Battista is directed to serve a conformed copy of this order on all 

interested parties and file a certificate of service with the court within 3 days] 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 13 of 20
14

EXHIBIT “B” 

(SETTLEMENT AGREEMENT) 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 14 of 20
SETTLEMENT AGREEMENT 

This SETTLEMENT AGREEMENT (the “Settlement Agreement”), dated May 12, 2022, 

is by and between Liberty Power Holdings, LLC (“Holdings”), and each of the Massachusetts 

Department of Energy Resources (“DOER”), and the Massachusetts Department of Environmental 

Protection (“MassDEP”) (Holdings, together with DOER and MassDEP are collectively referred 

to here as the “Settlement Parties”). 

Recitals

A. On April 20, 2021, Holdings filed a voluntary petition in the United States 

Bankruptcy Court for the Southern District of Florida (the “Bankruptcy Court”) for relief 

under Chapter 11 of Title 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) 

under Case No. 21-13797-SMG (the “Holdings Chapter 11 Case”). 

B. On June 4, 2021, each of Liberty Power District of Columbia, LLC (“Liberty 

District of Columbia”), LPT, LLC (“LPT”) and Liberty Power Maryland, LLC (“Liberty 

Maryland”)(collectively with Holdings, the “Debtors’) filed chapter 11 bankruptcy petitions in 

the Bankruptcy Court under Case Nos. 21-15550-SMG, 21-15537-SMG and 21-15539-SMG 

(collectively with the Holdings Chapter 11 Case, the “Chapter 11 Cases”). 

C. On October 18, 2021, MassDEP filed its Application for Administrative Expenses 

on Behalf of the Commonwealth of Massachusetts’ Department of Environmental Protection (the 

“MassDEP Application”) in the Chapter 11 Cases seeking allowance of a chapter 11 administrative 

expense claim against Holdings for alternative compliance payments (“ACPs”) totaling 

$1,232,655.34 that Holdings allegedly owes to MassDEP based on Holdings’ retail energy sales 

in Massachusetts between April 21, 2021 and October 18, 2021 because Holdings had not acquired 

the requisite amount of renewable energy credits (“RECs”) and clean energy certificates (“CECs”) 

required for a the post-petition period. 

D. On October 18, 2021, DOER filed its Application for Administrative Expenses of 

the Massachusetts Department of Energy Resources (“DOER Application”) in the Chapter 11 

Cases seeking allowance of a chapter 11 administrative expense claim against Holdings for ACPs 

totaling approximately $4,347,164.00 that Holdings allegedly owes to DOER based on Holdings’ 

retail energy sales in Massachusetts between April 30, 2021 and October 18, 2021. 

E. On November 8, 2021, the Debtors filed Debtors’ Omnibus Objection to 

Applications For Administrative Expenses Filed by Commonwealth of Massachusetts’ Department 

of Energy Resources And Department of Environmental Protection (the “Omnibus Objection”) 

objecting to the MassDEP Application and the DOER Application (collectively, the 

“Applications”). 

F. On December 3, 2021, the Commonwealth of Massachusetts, on behalf of 

MassDEP and DOER filed its Reply to Debtors’ Omnibus Objection to Massachusetts 

Departments of Energy Resources and Environmental Protection’s Application for Administrative 

Expenses (the “Reply”). 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 15 of 20
2

G. On December 17, 2022, the Debtors’ filed the Debtors’ Sur-Reply in Support of 

Omnibus Objection to Applications for Administrative Expenses filed by the Massachusetts’ 

Department of Energy Resources and the Massachusetts’ Department of Environmental 

Protection (the “Sur-Reply”). 

H. As set forth in the Omnibus Objection, Holdings disputes its liability for, as well as 

the amount and priority of, the chapter 11 administrative expense claims asserted by MassDEP 

and DOER against Holdings in the Applications (collectively, the “Asserted Claims”). 

I. The Settlement Parties recognize that further litigation related to the Asserted 

Claims could be protracted, costly, complex and involve risk. As a result, the Settlement Parties 

have engaged in good faith, arms’ length negotiations in an effort to resolve the disputes related to 

the Asserted Claims, and as a result thereof have agreed to enter into this Settlement Agreement 

to document the terms of a settlement and compromise between them (the “Settlement”). 

NOW, THEREFORE, in consideration of the mutual covenants, promises, and 

releases set forth herein, and with the intent to be legally bound thereby, subject to Bankruptcy 

Court approval, the Settlement Parties agree as follows: 

1. The Settlement. 

a. Allowed Administrative Expense Claim. 

i. DOER shall have an allowed chapter 11 administrative expense claim under 

Bankruptcy Code section 503(b)(1)(A) in an amount equal to Three 

Hundred and Seventy Thousand and Five Hundred dollars ($370,500.00) 

(the “DOER Admin. Claim”). 

 

ii. MassDEP shall have an allowed chapter 11 administrative expense claim 

under Bankruptcy Code section 503(b)(1)(A) in an amount equal to One 

Hundred and Four Thousand and Five Hundred dollars ($104,500.00) (the 

“MassDEP Admin. Claim” and together with the DOER Admin. Claim, the 

“Settlement Claims”). 

b. Treatment of Administrative Claim. 

The Settlement Claims shall receive the same treatment as all other allowed 

chapter 11 administrative expense claims under any chapter 11 plan that may be 

filed and confirmed by the Debtors in these Chapter 11 Cases (the “Chapter 11 

Plan”); provided however, that Holdings will not be required to make any 

payment or distribution on account of the Settlement Claims unless and until the 

Debtors confirm a chapter 11 plan of reorganization or liquidation in these 

Chapter 11 Cases. For the avoidance of doubt, in no event shall the Settlement 

Claims be paid after the effective date of any such plan(s). 

2. Bankruptcy Court Approval. The Settlement contained in this Settlement 

Agreement is and shall be subject to the approval of the Bankruptcy Court in the Chapter 11 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 16 of 20
3

Cases. Promptly after the full execution hereof, Holdings shall file a motion (the “Rule 9019 

Motion”) seeking approval of the Settlement and the terms of this Settlement Agreement under 

Rule 9019 of the Federal Rules of Bankruptcy Procedure. The Settlement Parties agree to 

cooperate with each other in seeking approval of the Settlement before the Bankruptcy Court. If 

the Bankruptcy Court enters an order denying the Rule 9019 Motion, then this Settlement 

Agreement shall be void and have no further force and effect, and each Settlement Party’s 

respective interests, rights, remedies and defenses shall be fully restored. If the Bankruptcy Court 

enters an order granting the Rule 9019 Motion and approving the Settlement pursuant to the terms 

of this Settlement Agreement (the “Approval Order”), then this Settlement Agreement shall be 

immediately enforceable against each of the Settlement Parties without further action by any 

Settlement Party. 

3. DOER and MassDEP Release. Upon the entry of the Approval Order by the 

Bankruptcy Court, DOER and MassDEP, and their successors and assigns, shall be deemed to 

fully release, acquit, and forever discharge Holdings’ bankruptcy estates, along with any of its 

respective members, managers, officers, directors, attorneys, employees, and agents of and from 

any and all claims or causes of action in connection with its compliance obligation under the 

DOER and MassDEP’s RPS/APS/CPS and CES regulations, respectively, as set forth in 225 

CMR 14.00, 225 CMR 15.00, 225 CMR 16.00, 225 CMR 21.00 and 310 CMR 7.75 and the 

underlying authorizing statutes at M.G.L. ch. 25A, §§ 11F, 11F1/2, M.G.L. c. 21N, §§ 2(a)(5), 

3(c), 4 and 7, M.G.L. c. 21A, §§ 2, 8 and 16 and M.G.L. c. 111, §§ 2C and 142A through 142E 

prior to the Effective Date (the “DOER/DEP Released Claims”); provided, however, that the 

DOER/DEP Released Claims shall not include any claims that may be brought by the 

Commonwealth of Massachusetts pursuant to Mass. Gen. Laws ch. 12, § 5A, which claims, if 

any, do not and will not constitute Chapter 11 administrative expense claims in the Chapter 11 

Cases. Nothing in this Settlement Agreement shall effect a release of the obligations hereunder, 

and nothing in this Settlement Agreement resolves, settles, or otherwise affects any claim or 

action that has been or could be brought against Debtors by any person or administrative or 

regulatory agency other than DOER or MassDEP. Nor does this Settlement Agreement resolve 

any claims, civil or criminal, except as expressly set forth in this paragraph; provided, however, 

that notwithstanding anything to the contrary herein, the DOER and MassDEP shall have no 

allowed claims or administrative expenses against Holdings or its estates except as provided in 

paragraph 1(a) above. 

4. Debtors’ Release. Upon the entry of the Approval Order by the Bankruptcy Court, 

the Debtors and the Debtors’ bankruptcy estates, and their successors and assigns, shall be 

deemed to fully release, acquit, and forever discharge the DOER and MassDEP, along with any 

of their respective members, managers, officers, management, directors, attorneys, employees, 

Commissioners, and agents from any and all claims or causes of action of any kind or character 

whatsoever, whether known or unknown based upon any action taken or not taken in respect of 

the Debtors prior to the Effective Date (the “Estate Released Claims”). 

Miscellaneous Provisions

5. Arms’ Length and Voluntary Settlement. The Settlement Parties have carefully 

read and understand, the full contents of this Settlement Agreement, and agree that the terms of 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 17 of 20
4

this Settlement Agreement were negotiated at arms’ length in good faith by the Settlement Parties 

and reflect a settlement that was reached voluntarily after consultation with experienced legal 

counsel. 

6. Further Assurances. Each Settlement Party shall do and perform, or cause to be 

done and performed, all such further acts and things, and shall execute and deliver all such other 

agreements, certificates, instruments, and documents, as the other Settlement Parties may 

reasonably request in order to carry out the intent and accomplish the purposes of this Settlement 

Agreement. 

7. Modifications or Amendments. This Settlement Agreement may not be modified 

or amended, nor may any of its provisions be waived, except by a writing signed by the 

Settlement Parties or their successors in interest. 

8. Headings. The headings herein are used for the purpose of convenience only and 

are not meant to have legal effect. 

9. Choice of Law. The terms of this Settlement Agreement shall be governed by and 

interpreted according to the substantive laws of the State of Florida without regard to its choice 

of law or conflict of laws principles. To the extent that the Bankruptcy Court has, and agrees to 

exercise, subject matter jurisdiction, any action regarding the enforcement or breach of this 

Settlement Agreement shall be filed in the Bankruptcy Court, and the Bankruptcy Court shall 

retain jurisdiction to resolve any dispute arising out of or relating to this Settlement Agreement. 

To the extent that the Bankruptcy Court has, and agrees to exercise, subject matter jurisdiction 

over any question related to the underlying ACPs claimed by MassDEP and DOER, such a 

dispute shall be governed by and interpreted according to the substantive laws of the 

Commonwealth of Massachusetts. 

10. Execution in Counterparts. This Settlement Agreement may be executed in 

counterparts. Facsimile and/or electronic signatures in portable document format (.pdf) shall 

constitute acceptable, binding signatures for purposes of this Settlement Agreement. 

11. Authorization and Binding Effect. Subject to the entry of the Approval Order, each 

of the undersigned signatories represents to the other Settlement Parties that: (i) they are 

authorized to execute and deliver this Settlement Agreement on behalf of any Settlement Party 

they purport to represent, and its subsidiaries and affiliates, and (ii) all claims waived or released 

pursuant to this Settlement Agreement have not been assigned or otherwise transferred and that 

the releases contained herein are binding on that Settlement Party, its successors, assigns, and any 

other persons or entities claiming by, through, or under that Settlement Party. 

12. No Admission of Liability. None of the Settlement Parties intend this Settlement 

Agreement to be or be construed as an admission of liability or to be construed to deny the 

legitimacy or priority of the DOER and MassDEP’s claims set forth in the Applications. 

13. Entire Agreement. This Settlement Agreement contains the entire agreement and 

understanding between the Settlement Parties concerning the subject matter hereof, and 

supersedes any prior or contemporaneous discussion or agreements thereon. The Settlement 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 18 of 20
5

Parties acknowledge that no Settlement Party, or any agent, representative, attorney, or client of 

a Settlement Party, has made any promise, representation, or warranty whatsoever, express or 

implied, that is not contained herein concerning the subject matter hereof, to induce any other 

Settlement Party to execute the Agreement. The Settlement Parties acknowledge that they have 

not executed the Settlement Agreement in reliance on any promise, representation, or warranty 

not contained herein. 

[Signatures on the next page] 

 

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 19 of 20
[.,UBEET'Y PS}T'ER. H*LS M{GS, L{,C

LTEES,TY BO\4ryR. B}STR,ECT {}S

c*LUMBtrA, LLC

LpT',, LX"C

LXEERTY FOWEft. &flA&.X1t,r${ts, LLC

.r-;

,, ,/ 7.) ". t) .:* 4

r,... -l*'rl*' t1.t ,1i" Lr:,: tjyi ,!*u'<"t _t- "*

Naure: Bob Butler

Titie: Chief Reshuchrring Of{icer

j\..{ A,S $ ACi { {.; SFI l'T.fi t } f, Prt fi.T l!3 !, r{ T' {.} i.',

h&*I$SACHUSETT$ BHPA"RT$$E is Y C* t'

flNVlR(}i{&t PROTEC'T}fi

By:

Narne: in Ericson

Title; Counsel

ENE}I,GY RES.fiU&CES

Name: I{.oheft H. }"I*aglu

Title: General Counsgl

Case 21-13797-SMG Doc 701 Filed 06/14/22 Page 20 of 20