NOTICE OF UNREDACTED SETTLEMENT AGREEMENT AND …omnimgt.com/CMSVol2/pub_47137/710900_3182.pdf ·...

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION IN RE: ) ) ITT EDUCATIONAL SERVICES, INC., et al.1 ) Case No. 16-07207-JMC-7A ) Debtors. ) Jointly Administered

NOTICE OF UNREDACTED SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN THE TRUSTEE AND DELOITTE & TOUCHE LLP

Deborah J. Caruso, the chapter 7 trustee in this case (the “Trustee”), by counsel, hereby

submits the unredacted copy of the Settlement Agreement and Mutual Release (the “Settlement

Agreement”), between the Trustee and Deloitte & Touche LLP, a copy of which is attached as

Exhibit A. A partially redacted copy of the Settlement Agreement was originally included as

Exhibit 1 to the Trustee’s Motion to Compromise and Settle All Claims Against Deloitte &

Touche LLP [Doc 3099] filed on December 20, 2018.

Respectfully submitted,

RUBIN & LEVIN, P.C.

By: /s/ Meredith R. Theisen Meredith R. Theisen

Deborah J. Caruso (Atty. No. 4273-49) John C. Hoard (Atty. No. 8024-49) James E. Rossow Jr. (Atty. No. 21063-29) Meredith R. Theisen (Atty. No. 28804-49) RUBIN & LEVIN, P.C. 135 N. Pennsylvania Street, Suite 1400 Indianapolis, Indiana 46204 Tel: (317) 634-0300 Fax: (317) 263-9411 Email: [email protected] [email protected] [email protected] [email protected]

Attorneys for Deborah J. Caruso, Trustee

1 The debtors in these cases, along with the last four digits of their respective federal tax identification numbers are ITT Educational Services, Inc. [1311]; ESI Service Corp. [2117]; and Daniel Webster College, Inc. [5980].

Case 16-07207-JMC-7A Doc 3182 Filed 01/28/19 EOD 01/28/19 15:42:02 Pg 1 of 8

CERTIFICATE OF SERVICE

I hereby certify that on January 28, 2019, a copy of the foregoing Notice of Unredacted

Settlement Agreement and Mutual Release Between the Trustee and Deloitte & Touche LLP was filed electronically. Pursuant to Section IV.C.3(a) of the Case Management Procedures, notice of this filing will be sent to the following parties through the Court’s Electronic Case Filing System. Parties may access this filing through the Court’s system. John Joseph Allman [email protected], [email protected] Richard Allyn [email protected] Robert N Amkraut [email protected] Scott S. Anders [email protected], [email protected] Manuel German Arreaza [email protected] Todd Allan Atkinson [email protected] Darren Azman [email protected] Kay Dee Baird [email protected], [email protected];[email protected] Michael I. Baird [email protected], [email protected] Christopher E. Baker [email protected], [email protected] James David Ballinger [email protected], [email protected] Joseph E. Bant [email protected] William J. Barrett [email protected], [email protected] Ashley Flynn Bartram [email protected] Alex M Beeman [email protected], [email protected] Thomas M Beeman [email protected] Richard James Bernard [email protected] Thomas Berndt [email protected], [email protected] John J Berry [email protected], [email protected] Lauren Beslow [email protected] Brandon Craig Bickle [email protected] David J. Bodle [email protected], [email protected] Robert A. Breidenbach [email protected] Wendy D Brewer [email protected], [email protected] Kayla D. Britton [email protected], [email protected] Robert Bernard Bruner [email protected] Jason R Burke [email protected], [email protected] Erin Busch [email protected] John Cannizzaro [email protected], [email protected] Kevin M. Capuzzi [email protected], [email protected];[email protected] James E. Carlberg [email protected], [email protected];[email protected] Steven Dean Carpenter [email protected] Deborah Caruso [email protected], [email protected];[email protected];[email protected] Deborah J. Caruso [email protected], [email protected]

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Joshua W. Casselman [email protected], [email protected];[email protected] Ben T. Caughey [email protected] Sonia A. Chae [email protected] John Andrew Chanin [email protected], [email protected] Courtney Elaine Chilcote [email protected], [email protected];[email protected] Dale C Christensen [email protected] Eboney Delane Cobb [email protected] Tiffany Cobb [email protected] Michael Edward Collins [email protected] Michael Anthony Collyard [email protected], [email protected] Eileen Connor [email protected] Lawrence D. Coppel [email protected] Heather M. Crockett [email protected], [email protected] J Russell Cunningham [email protected], [email protected] Erica Dausch [email protected] David H DeCelles [email protected] Melissa J. DeGroff [email protected], [email protected] Dustin R. DeNeal [email protected], [email protected] Laura A DuVall [email protected], [email protected] Stephen Emedi [email protected] Abby Engen [email protected], [email protected] Annette England [email protected] Charles Anthony Ercole [email protected], [email protected] Carolyn Meredith Fast [email protected] Elaine Victoria Fenna [email protected] Andrew W Ferich [email protected] Scott Patrick Fisher [email protected], [email protected] John David Folds [email protected], [email protected] Jennifer N Fountain [email protected], [email protected] Sarah Lynn Fowler [email protected], [email protected] Robert W. Fuller [email protected] Carlos Galliani [email protected] Jonathan William Garlough [email protected], [email protected];[email protected] Lea Pauley Goff [email protected], [email protected];[email protected] Barry S. Gold [email protected] John C Goodchild [email protected] Douglas Gooding [email protected] John Andrew Goodridge [email protected], [email protected];[email protected] Michael Wayne Grant [email protected] Richard Grayson Grant [email protected], [email protected] Alan Mark Grochal [email protected] Elizabeth N. Hahn [email protected], [email protected] Gregory Forrest Hahn [email protected], [email protected]

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Julian Ari Hammond [email protected], [email protected] Wallace M Handler [email protected], [email protected] William J. Hanlon [email protected] Adam Craig Harris [email protected] Brian Hauck [email protected] Jeffrey M. Hawkinson [email protected], [email protected] Michael J. Hebenstreit [email protected], [email protected];[email protected];[email protected] Amanda Marie Hendren [email protected] Claude Michael Higgins [email protected] Michael W. Hile [email protected], [email protected] Sean M Hirschten [email protected] Robert M. Hirsh [email protected] John C. Hoard [email protected], [email protected];[email protected];[email protected] Curt Derek Hochbein [email protected], [email protected];[email protected];[email protected] Jeffrey A Hokanson [email protected], [email protected] Steven Howard Holinstat [email protected] Diana Hooley [email protected] Thomas Ross Hooper [email protected] George Wade Hopper [email protected], [email protected] Andrew E. Houha [email protected] Andrew W. Hull [email protected], [email protected] James C Jacobsen [email protected], [email protected] Christine K. Jacobson [email protected], [email protected] Jay Jaffe [email protected], [email protected] David Januszewski [email protected] Benjamin F Johns [email protected], [email protected] Russell Ray Johnson [email protected] Kenneth C. Jones [email protected] Anthony R. Jost [email protected], [email protected];[email protected] David J. Jurkiewicz [email protected], [email protected];[email protected];[email protected];[email protected] Timothy Q. Karcher [email protected] Alan Katz [email protected] Richard B. Kaufman [email protected] Carly Kessler [email protected] John M. Ketcham [email protected], [email protected] Taejin Kim [email protected] Edward M King [email protected], [email protected];[email protected] Roy F. Kiplinger [email protected], [email protected] Jackson Taylor Kirklin [email protected], [email protected] James A. Knauer [email protected], [email protected] Kevin Dale Koons [email protected]

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Harris J. Koroglu [email protected], [email protected] Lawrence Joel Kotler [email protected] Robert R Kracht [email protected] Andrew L. Kraemer [email protected], [email protected] David R. Krebs [email protected], [email protected] Jerrold Scott Kulback [email protected] Jay R LaBarge [email protected] Darryl S Laddin [email protected] Michael J. Langlois [email protected], [email protected] Vilda Samuel Laurin [email protected] Jordan A Lavinsky [email protected] Todd Evan Leatherman [email protected] David S Lefere [email protected], [email protected] Anthony Darrell Lehman [email protected] Martha R. Lehman [email protected], [email protected];[email protected];[email protected] Gary H Leibowitz [email protected], [email protected];[email protected] Donald D Levenhagen [email protected] Elizabeth Marie Little [email protected] Edward J LoBello [email protected] Melinda Hoover MacAnally [email protected], [email protected];[email protected] Christopher John Madaio [email protected] John A. Majors [email protected], [email protected] Steven A. Malcoun [email protected] Jonathan Marshall [email protected] Thomas Marvin Martin [email protected] Jeff J. Marwil [email protected], [email protected];[email protected];[email protected] Richard J Mason [email protected] C. Ed Massey [email protected], [email protected] Ann Wilkinson Matthews [email protected] Rachel Jaffe Mauceri [email protected] Michael Wesley McBride [email protected], [email protected] Michael K. McCrory [email protected], [email protected] Maureen Elin McOwen [email protected] Harley K Means [email protected], [email protected];[email protected];[email protected] Toby Merrill [email protected], [email protected] Robert W. Miller [email protected] Sherry Millman [email protected] Jason Milstone [email protected] Thomas E Mixdorf [email protected], [email protected] Evgeny Grigori Mogilevsky [email protected], [email protected] James P Moloy [email protected],

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[email protected];[email protected] Ronald J. Moore [email protected] Hal F Morris [email protected] Michael David Morris [email protected] Kevin Alonzo Morrissey [email protected], [email protected];[email protected];[email protected] Whitney L Mosby [email protected], [email protected] C Daniel Motsinger [email protected], [email protected];[email protected];[email protected] Lee Duck Moylan [email protected], [email protected] Joseph L. Mulvey [email protected], [email protected] Abraham Murphy [email protected] Justin Scott Murray [email protected] Alissa M. Nann [email protected], [email protected] Henry Seiji Newman [email protected] Kevin M. Newman [email protected], [email protected] Cassandra A. Nielsen [email protected], [email protected],[email protected];[email protected] Ryan Charles Nixon [email protected] Isaac Nutovic [email protected] Michael O'Donnell [email protected] Gregory Ostendorf [email protected], [email protected] Weston Erick Overturf [email protected], [email protected];[email protected] Pamela A. Paige [email protected], [email protected] Kenneth Pasquale [email protected] Eric Pendergraft [email protected], [email protected];[email protected] Danielle Ann Pham [email protected] Jack A Raisner [email protected], [email protected];[email protected] Jonathan Hjalmer Reischl [email protected] Michael Rella [email protected] Caroline Ellona Richardson [email protected], [email protected] James Leigh Richmond [email protected] Mai Lan Gabrielle Rodgers [email protected], [email protected] John M. Rogers [email protected], [email protected];[email protected];[email protected] Melissa M. Root [email protected], [email protected] David A. Rosenthal [email protected] James E Rossow [email protected], [email protected];[email protected];[email protected] Rene Sara Roupinian [email protected], [email protected];[email protected];[email protected];[email protected];[email protected] Victoria Fay Roytenberg [email protected], [email protected] Steven Eric Runyan [email protected]

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Craig Damon Rust [email protected], [email protected] Karl T Ryan [email protected], [email protected] Joseph Michael Sanders [email protected] Thomas C Scherer [email protected], [email protected] James R. Schrier [email protected], [email protected];[email protected] Ronald James Schutz [email protected] H. Jeffrey Schwartz [email protected] Courtney Michelle Scott [email protected] Joseph E Shickich [email protected], [email protected] Randall R Shouse [email protected], [email protected] William E Smith [email protected], [email protected] Lauren C. Sorrell [email protected], [email protected];[email protected] Berry Dan Spears [email protected] Catherine L. Steege [email protected], [email protected];[email protected] LaChelle D Stepp [email protected], [email protected] Jason V Stitt [email protected] Sharon Stolte [email protected] Jesse Ellsworth Summers [email protected], [email protected] Jonathan David Sundheimer [email protected] Nathan L Swehla [email protected] Nancy K. Swift [email protected], [email protected] Andrew W.J. Tarr [email protected] Eric Jay Taube [email protected], [email protected];[email protected] Meredith R. Theisen [email protected], [email protected];[email protected] Meredith R. Theisen [email protected], [email protected];[email protected] Jessica L Titler [email protected] David Tocco [email protected], [email protected] Todd Christian Toral [email protected], [email protected] Ronald M. Tucker [email protected], [email protected],[email protected] Christopher Turner [email protected], [email protected] U.S. Trustee [email protected] Michael Ungar [email protected] Lauren Valkenaar [email protected] Sally E Veghte [email protected], [email protected] Rachel Claire Verbeke [email protected] Aimee Vidaurri [email protected] Amy L VonDielingen [email protected] Amy E Vulpio [email protected] Carolyn Graff Wade [email protected] Louis Hanner Watson [email protected] Jeffrey R. Waxman [email protected], [email protected];[email protected] Christine M.H. Wellons [email protected]

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Philip A. Whistler [email protected], [email protected] Bradley Winston [email protected], [email protected] Brandon Michael Wise [email protected] Cathleen Dianne Wyatt [email protected], [email protected] Joseph Yar [email protected], [email protected];[email protected] James T Young [email protected], [email protected];[email protected];[email protected] James E. Zoccola [email protected]

I further certify that on January 28, 2019, pursuant to Section IV.C.3(c) of the Case Management Procedures, a copy of the foregoing Notice of Unredacted Settlement Agreement and Mutual Release Between the Trustee and Deloitte & Touche LLP was emailed to the following:

Arlington ISD/Richardson ISD: Eboney Cobb at [email protected] CEC Red Run, LLC: Alan M. Grochal at [email protected] SWRE Deal V Building, LLC: Paul Weiser at [email protected] Tarrant County/Dallas County: Elizabeth Weller at [email protected] Northwest Natural Gas Company: Ashlee Minty at [email protected] Solar Drive Business, LLC: Chris W. Halling at [email protected] Market-Turk Company: Jordan A. Lavinsky at [email protected] Taxing Authority for Harris County, Texas: John P. Dillman at [email protected] Texas Comptroller of Public Accounts: Rachel Obaldo at [email protected] Clear Creek Independent School District: Carl O. Sandin at [email protected] Synchrony Bank: Recovery Management Systems Corporation at [email protected] Bexar County: Don Stecker at [email protected] SWRE Deal V Building, LLC: Nancy K. Swift at [email protected] TN Dept. of Revenue: Michael Willey at [email protected] Florida Department of Education: Benman D. Szeto at [email protected] Last Second Media, Inc.: T. Todd Egland at [email protected] Hung Duong: Kevin Schwin at [email protected] Travis County: Kay D. Brock at [email protected] Able Building Maintenance: Scott D. Fink at [email protected] Marathon Ventures, LLC: Daniel M. Karger at [email protected] Oklahoma County Treasurer: Tammy Jones at [email protected] JM Partners LLC: John Marshall at [email protected] Deloitte & Touche LLP: Christopher S. Turner at [email protected]

/s/ Meredith R. Theisen Meredith R. Theisen

g:\wp80\trustee\caruso\itt educational - 86723901\drafts\notice unredacted settlement agreement.docx

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CONFIDENTIAL

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This SETTLEMENT AGREEMENT AND MUTUAL RELEASE (“Settlement

Agreement” or “Agreement”), which is subject to approval by the Bankruptcy Court (defined

below) pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy

Rules”), is entered into as of the 19th day of December, 2018, between and among:

(a) Deborah J. Caruso, solely in her capacity as the chapter 7 trustee of the

bankruptcy estates of ITT Educational Services, Inc., ESI Service Corp., and Daniel Webster

College, Inc., and not individually (“Trustee”); and

(b) Deloitte & Touche LLP (“D&T”).

The Trustee and D&T shall collectively be referred to in this Settlement Agreement as the

“Settling Parties.”

PREAMBLE

WHEREAS, on September 16, 2016 (“Petition Date”), ITT Educational Services, Inc.,

ESI Service Corp., and Daniel Webster College, Inc. (collectively, “ITT” or “Debtors”) each

filed a voluntary bankruptcy petition under chapter 7 of Title 11 of the United States Code

(“Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of

Indiana, Indianapolis Division (“Bankruptcy Court”), thereby commencing bankruptcy cases

which are now jointly administered under Case No. 16-07207-JMC (“Bankruptcy Case”).

WHEREAS, the Trustee was appointed interim trustee under section 701 of the

Bankruptcy Code in each of the Debtors’ bankruptcy cases on the Petition Date, and in

accordance with section 702(d) of the Bankruptcy Code, became the permanent trustee in the

Bankruptcy Case on November 1, 2016 following the conclusion of the meeting of creditors

held pursuant to section 341(a) of the Bankruptcy Code. Pursuant to section 323(a) of the

Bankruptcy Code, the Trustee is currently the representative of the Debtors’ bankruptcy

Exhibit A Page 1 of 18

Case 16-07207-JMC-7A Doc 3182-1 Filed 01/28/19 EOD 01/28/19 15:42:02 Pg 1 of 18

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estates.

WHEREAS, the Trustee asserts that it has claims against D&T arising from the

services D&T provided to ITT between 2014 and 2016.

WHEREAS, D&T denies all allegations of wrongdoing, violations of law, or any other

basis for liability arising out of the conduct, statements, acts, or omissions alleged, or that

could have been alleged, in any action against it.

WHEREAS, the Settling Parties intend to fully, finally and forever resolve, discharge

and settle any and all claims relating to ITT (as more particularly described in Paragraphs 9-12

below), that were or could have been asserted between the Settling Parties, to avoid litigation.

NOW THEREFORE, for good and valuable consideration of the covenants and

agreements contained in this Settlement Agreement, the adequacy of which is hereby

acknowledged, the Setting Parties agree as follows:

DEFINITIONS

1. As used in this Agreement, the following capitalized terms have the meanings

specified below:

(a) “Estate Releasors” means the Debtors, their estates, and the Trustee,

their subsidiaries and affiliates, their predecessors, successors and assigns, and any other

person or entity that claims or might claim through, on behalf of, or for the benefit of any of

the foregoing, whether directly or derivatively.

(b) “Estate Releasees” means the Debtors, their estates, the Trustee, and

Deborah J. Caruso, and any and all of their past, present and future partners, directors, boards

and board members, principals, officers, officials, members, employees, subsidiaries, parents,

affiliates, divisions, joint venturers, subcontractors, subrogees, offices, controlled entities and

persons, predecessors, successors, assignors, assigns, transferees, heirs, executors, attorneys,



CONFIDENTIAL

3

shareholders, owners, investors, accountants, auditors, advisors, trustees, administrators,

fiduciaries, consultants, representatives, insurers, co-insurers, reinsurers, and agents, solely in

their respective capacities as such.

(c) “Deloitte Releasees” means D&T, Deloitte LLP, Deloitte Consulting

LLP, Deloitte Financial Advisory Services LLP, Deloitte Transactions and Business Analytics

LLP, Deloitte Tax LLP, Deloitte Services LP, and Deloitte USA LLP (together, the “Deloitte

US Entities”) and any and all of the Deloitte US Entities’ past, present and future partners,

directors, boards and board members, principals, officers, officials, members, employees,

subsidiaries, parents, affiliates, divisions, joint venturers, subcontractors, subrogees, offices,

controlled entities and persons, predecessors, successors, assignors, assigns, transferees, heirs,

executors, attorneys, shareholders, owners, investors, accountants, auditors, advisors, trustees,

administrators, fiduciaries, consultants, representatives, insurers, co-insurers, reinsurers, and

agents, solely in their respective capacities as such.

(d) “Deloitte Releasors” means the Deloitte US Entities, their subsidiaries

and affiliates, their predecessors, successors and assigns, and any other person or entity that

claims or might claim through, on behalf of, or for the benefit of any of the foregoing, whether

directly or derivatively.

(e) “Settlement Amount” means eleven million five hundred thousand U.S.

dollars ($11,500,000.00).

(f) “Settlement Effective Date” is the date upon which an order of the

Bankruptcy Court approving this Agreement becomes final and non-appealable. Pursuant to

Rule 8002 of the Bankruptcy Rules, the Settling Parties agree that, absent any appeal, the order

will become final and non-appealable 14 days after it is entered.



CONFIDENTIAL

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TERMS

2. This Settlement Agreement represents a negotiated settlement of disputed

claims. The execution of this Settlement Agreement and the negotiations, discussions and

communications in connection with this Settlement Agreement shall not be construed as

admissions or concessions by the Settling Parties as to any liability or wrongdoing, or as to the

merits or lack of merits of any claim or defense. Further, the Settling Parties expressly agree

that they are entering into this Agreement solely to eliminate the uncertainties, burdens and

expenses of litigation and that this Settlement Agreement shall in no event be construed as, or

deemed to be, evidence of an admission or concession by D&T or the Debtors, their estates or

the Trustee with respect to any claim of any fault, liability, wrongdoing or damage whatsoever.

3. As a condition precedent to execution of this Agreement, the Trustee shall

provide D&T with any reasonable and necessary documentation that D&T may request for tax

purposes.

4. Within two (2) business days following execution of the Settlement Agreement

by all signatories, the Trustee shall file a motion with the Bankruptcy Court seeking approval

of this Agreement pursuant to Bankruptcy Rule 9019 (the “Rule 9019 Motion”). In the event

the Rule 9019 Motion is not approved by a final and non-appealable order by the Bankruptcy

Court, this Agreement shall be void ab initio and the Settling Parties shall be restored to their

respective positions as of the date of this Agreement with all of their respective claims and

defenses preserved as they existed on that date.

5. Within ten (10) business days of the Settlement Effective Date, D&T shall send

the Settlement Amount by electronic funds transfer to the Debtors’ bankruptcy estates’ account

(the “Fund”) as directed by the Trustee.



CONFIDENTIAL

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6. Within two (2) business days of receiving the Settlement Amount into the Fund

in accordance with Paragraph 5 of this Settlement Agreement, the Trustee shall file a Joint

Stipulation of Dismissal with prejudice in the form attached as Exhibit A to this Agreement,

pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), made applicable pursuant to

Bankruptcy Rule 7041, dismissing all claims against D&T with prejudice in the action

captioned Deborah J. Caruso, the chapter 7 trustee for the bankruptcy estates of ITT

Educational Services, Inc., ESI Service Corp., and Daniel Webster College, Inc. v. Deloitte &

Touch LLP, Adversary Proceeding No. 18-50276 in the Bankruptcy Case (“Avoidance

Action”). D&T consents to the Trustee’s filing of the Joint Stipulation of Dismissal in the

form attached as Exhibit A in the Avoidance Action.

7. The Trustee expressly acknowledges that she is responsible for the payment of

any applicable taxes related to receipt of the Settlement Amount and that D&T shall have no

responsibility whatsoever for such taxes.

8. This Settlement Agreement shall be final and binding on the Settling Parties

upon its execution, subject to approval of the Agreement by the Bankruptcy Court in a final

and non-appealable order.

9. Effective upon (a) the Settlement Effective Date and (b) receipt of the

Settlement Amount in accordance with Paragraph 5 of this Settlement Agreement, the Estate

Releasors hereby release and forever discharge the Deloitte Releasees, and each of them

individually, to the fullest extent that the law permits their release, of and from any and all

claims, suits, actions, causes of action, damages (including, without limitation, compensatory,

punitive, exemplary, rescissory, direct, consequential or special damages, and restitution and

disgorgement), demands, rights, debts, penalties, costs, expenses, fees, injunctive relief,

attorneys’ fees, expert or consulting fees, prejudgment interest, indemnities, duties, liabilities,



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6

losses, or obligations of every nature and description whatsoever, known or unknown, whether

or not concealed or hidden, fixed or contingent, direct or indirect, anticipated or unanticipated,

asserted or that could have been asserted by or on behalf of the Estate Releasors, whether

legal, contractual, rescissory, statutory, or equitable in nature, whether arising under federal,

state, common or foreign law, that now exist or have ever existed from the beginning of time

until the date of this Agreement that are based upon, arise from, or are related to ITT or to any

services D&T provided to ITT (“Estate Released Claims”). The release granted in this

Paragraph 9 shall in no event preclude the Debtors, their estates or the Trustee, in any action

where a third party asserts a claim against the Debtors, their estates or the Trustee concerning

ITT, from asserting, through a defense of comparative fault, that any Deloitte Releasee bears a

proportionate share of fault for damages alleged against the Debtors, their estates or the

Trustee, provided however, that nothing in this Paragraph 9 shall allow the Debtors, their

estates or the Trustee to assert any claim against the Deloitte Releasees that has been released

pursuant to this Settlement Agreement. Further, the release granted in this Paragraph 9 shall in

no event preclude the Debtors, their estates or the Trustee, in any action where a Deloitte

Releasee brings a claim against the Debtors, their estates or the Trustee, from asserting claims

or counterclaims against that Deloitte Releasee.

10. Effective upon (a) the Settlement Effective Date and (b) the filing by the

Trustee of a Joint Stipulation with prejudice in accordance with Paragraph 6 of this Settlement

Agreement, the Deloitte Releasors hereby release and forever discharge the Estate Releasees,

and each of them individually, to the fullest extent that the law permits their release, of and

from any and all claims, suits, actions, causes of action, damages (including, without

limitation, compensatory, punitive, exemplary, rescissory, direct, consequential or special

damages, and restitution and disgorgement), demands, rights, debts, penalties, costs, expenses,



CONFIDENTIAL

7

fees, injunctive relief, attorneys’ fees, expert or consulting fees, prejudgment interest,

indemnities, duties, liabilities, losses, or obligations of every nature and description

whatsoever, known or unknown, whether or not concealed or hidden, fixed or contingent,

direct or indirect, anticipated or unanticipated, asserted or that could have been asserted by or

on behalf of the Deloitte Releasors, whether legal, contractual, recissory, statutory, or

equitable in nature, whether arising under federal, state, common or foreign law, that now exist

or have ever existed from the beginning of time until the date of this Agreement that are based

upon, arise from, or are related to ITT or to any services D&T provided to ITT (“Deloitte

Released Claims”). The release granted in this Paragraph 10 shall in no event preclude D&T,

in any action where D&T is sued by a third party concerning ITT, from asserting, through a

defense of comparative fault, that any Estate Releasee bears a proportionate share of fault for

damages alleged against D&T in such litigation, provided however, that nothing in this

Paragraph 10 shall allow D&T to assert any claim against the Estate Releasees that has been

released pursuant to this Settlement Agreement. Further, the release granted in this Paragraph

10 shall in no event preclude D&T, in any action where an Estate Releasee brings a claim

against D&T, from asserting claims or counterclaims against that Estate Releasee.

11. The Settling Parties expressly acknowledge that they may hereafter discover

facts in addition to or different from those that any of them or their counsel now knows or

believes to be true with respect to the subject matter of the claims released in Paragraphs 9-10

or otherwise. Nevertheless, upon execution of this Settlement Agreement and subject to the

terms of the Settlement Agreement, the Settling Parties shall have expressly, fully, finally, and

forever settled and released any and all claims as set forth in Paragraphs 9-10, whether known

or unknown, suspected or unsuspected, contingent or non-contingent, whether or not now

existing or coming into existence in the future, including, but not limited to, conduct that is



CONFIDENTIAL

8

negligent, reckless, intentional, with or without malice, or a breach of any duty, law, or rule,

without regard to the subsequent discovery or existence of such different or additional facts.

12. The Settling Parties agree that the releases granted in this Settlement

Agreement cover unknown claims. The Settling Parties expressly waive the provisions, rights

and benefits conferred by the law of any state or territory of the United States or principle of

common law which is similar, comparable or equivalent to California Civil Code § 1542,

which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Settling Parties acknowledge that the foregoing waiver was separately bargained for and a

key element of the Settlement Agreement of which this release is a part.

13. The Settling Parties and their respective attorneys agree that the Settlement

Amount shall be treated as confidential and shall not be offered into evidence by the Settling

Parties in any action, arbitration, or proceeding for any purpose whatsoever except to obtain

approval of the Settlement Agreement or as necessary to enforce the Settlement Agreement, or

disclosed, described, or characterized to any other person, entity, publication or member of the

media for any purpose, provided however, that each Settling Party may disclose the fact that a

settlement has been entered into on mutually agreeable terms. The Settlement Amount may be

disclosed as follows:

(a) in the Bankruptcy Court, federal district courts, and federal appellate courts

to the extent required to obtain approval of the Settlement Agreement. In

such instances, the Trustee shall seek to have the Settlement Amount filed

under seal indefinitely with it not being made available to any third party

without the consent of both of the Settling Parties. The Settlement Amount



CONFIDENTIAL

9

may be provided to the Bankruptcy Court, the United States Trustee’s

Office and any auditor serving under 28 U.S.C. § 586(f), on a confidential

basis, unless otherwise ordered by the Bankruptcy Court. In the event the

Bankruptcy Court or another court denies a request by the Trustee to have

the Settlement Amount filed under seal, the Trustee may proceed to

publicly file the Settlement Amount.

(b) in financial reports required to be filed by the Trustee with the Bankruptcy

Court.

(c) by the Settling Parties or either of them (i) as may be required by judicial

process, or order of a court, or as required by law; (ii) to the Settling

Parties’ insurance carriers; or (iii) to the Settling Parties’ attorneys or

accountants; and

(d) by D&T to D&T’s regulators.

Disclosure by the Settling Parties to the persons and entities included in subsection (c)(ii) and

(c)(iii) above shall be subject to agreement by the recipient to maintain confidentiality in

accordance with this Paragraph 13. In the event of disclosure to the persons and entities

included in subsection (c)(i), the Settling Party making such disclosure agrees that it will

notify the other Settling Party that such disclosure is being made, except if such notification is

not permitted by law; notify the person or entity to which the disclosure is made that the

Settling Parties have agreed to maintain the confidentiality of the Settlement Amount in

accordance with this Paragraph 13; and request that the person or entity to which the

disclosure is made maintain the confidentiality of the Settlement Amount. To the extent that

this Agreement is offered in evidence for the purpose of enforcing the Settlement Agreement,

the Settling Party offering such evidence shall file the Settlement Amount under seal unless



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10

otherwise ordered by a court. D&T acknowledges and agrees that the Trustee will include a

redacted copy of this Settlement Agreement with the Rule 9019 Motion, which will redact all

references to the Settlement Amount.

14. In the event of a request, subpoena or court order seeking access to the

Settlement Amount, the Settling Parties agree to the extent permitted by law or applicable

rules or regulations (a) that the Settling Party in receipt of the request, subpoena or court order

(the “subpoenaed party”) will promptly notify the non-subpoenaed party upon receipt of the

request, subpoena, or court order and provide the non-subpoenaed party a copy thereof, to

afford the non-subpoenaed party a reasonable opportunity to take action to prevent disclosure

of the Settlement Amount, and (b) that the subpoenaed party will cooperate reasonably in the

non-subpoenaed party’s efforts to protect disclosure of the Settlement Amount. This

Paragraph 14 shall not apply to permitted disclosures made pursuant to Subsections 13(a),

13(b), 13(c)(ii), 13(c)(iii), or 13(d), above.

(i) Any notice to D&T required under this provision shall be given in

writing to D&T at:

Deloitte LLP Office of General Counsel 1221 Avenue of the Americas New York, NY 10020 Attn: David Cohen, Deputy General Counsel

and

Latham & Watkins LLP 555 Eleventh St. NW Suite 1000 Washington, DC 20004-1304 Attn: Christopher S. Turner



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(ii) The notice to the Trustee required under this provision shall be given in

writing to the Trustee at:

Deborah J. Caruso, Esq. Rubin & Levin, P.C. 135 N. Pennsylvania St., Suite 1400 Indianapolis, IN 46204

and

McKool Smith PC One Bryant Park, 47th Floor New York, NY 10036 Attn: Kyle A. Lonergan

15. With the exception of the warranties and representations made in this

Settlement Agreement, by entering into this Settlement Agreement, the Settling Parties assume

the risk of any misrepresentation, concealment or mistake. If any Settling Party to this

Settlement Agreement subsequently discovers that any fact relied upon by it in entering into

this Agreement was untrue or concealed from that Settling Party, or that the Settling Party’s

understanding of the facts or of the law was incorrect, such Settling Party shall not be entitled

to any relief in connection therewith, including, without limitation, any alleged right or claim

to set aside or rescind this Settlement Agreement. This Settlement Agreement is intended to

be final and binding between and among the Settling Parties, subject to approval of the

Agreement by the Bankruptcy Court in a final and non-appealable order.

REPRESENTATIONS AND WARRANTIES

16. To induce one another to enter into this Settlement Agreement, each Settling

Party, and D&T’s authorized agent signing this Settlement Agreement, represents and warrants

that it has the full and absolute right, power, authority and ability to enter into this Settlement

Agreement, and all releases, representations, and warranties contained in this Settlement

Agreement, and to perform all of its obligations hereunder, subject in the case of the Trustee to



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12

obtaining approval of the Settlement Agreement by the Bankruptcy Court in a final and non-

appealable order.

17. Each Settling Party represents and warrants that: (a) her or its respective

attorneys have explained the meaning and effect of this Settlement Agreement; (b) she or it has

read and she or it understands this Settlement Agreement; (c) she or it has not relied upon any

other statements or representations regarding this matter other than those expressly stated

herein; and (d) she or it has signed this Settlement Agreement without duress, coercion, or

undue influence by anyone or anything.

18. The Trustee and D&T each warrant and represent that, as of the date of

execution of this Settlement Agreement, she or it has not assigned, subrogated or otherwise

transferred, and will not assign, subrogate or otherwise transfer, all or any part or interest of

the Estate Released Claims and the Deloitte Released Claims, respectively.

DEFAULT

19. Any failure by a Settling Party to comply with the terms and conditions of this

Settlement Agreement shall constitute a material breach of this Settlement Agreement, and the

non-compliant Settling Party will be considered in default of this Settlement Agreement.

20. In the event of a default by any of the Settling Parties of any of their respective

obligations, and upon the giving of ten (10) business days written notice of such default (and if

such default is not cured within that ten-business day time period), a Settling Party may, in its

discretion, institute an action before the Bankruptcy Court to enforce or interpret the terms of

this Settlement Agreement. The existence of any default by a Settling Party shall not authorize

the termination of this Settlement Agreement, and the Agreement shall remain fully binding on

all parties. A non-breaching Settling Party shall have all other rights and remedies available at

law.



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13

OTHER MATTERS

21. This Settlement Agreement shall be deemed drafted equally by each of the

Settling Parties. Its language shall be construed as a whole and according to its fair meaning.

Any presumption or principle that the language is to be construed against any Settling Party

shall not apply. The headings in this Settlement Agreement are for convenience and are not

intended to affect construction or interpretation.

22. The failure, or partial failure, of either of the Settling Parties to enforce at any

time any provision of this Settlement Agreement shall not be construed to be a waiver of such

provision, nor in any way affect the validity of this Settlement Agreement or any part thereof

or the right of any Settling Party thereafter to enforce each and every provision. No waiver of

any breach of this Settlement Agreement shall be held to constitute a waiver or any other

breach.

23. This Settlement Agreement may be executed in several counterparts and, when

fully executed by the Settling Parties, each counterpart shall be deemed an original and shall

constitute one and the same instrument. Facsimile, photocopy or PDF signatures shall be valid

as originals.

24. This Settlement Agreement may not be altered, modified or amended except by

a writing signed by the Settling Parties.

25. This Settlement Agreement constitutes the sole and entire agreement between

the Settling Parties with respect to the matters covered in this Agreement.

26. Irrespective of the place of execution, the laws of the State of New York

(without reference to its conflicts of law principles) shall govern the validity of this Settlement

Agreement, the construction of its terms, and the interpretation of the rights and duties of the

Settling Parties. The Bankruptcy Court shall retain exclusive jurisdiction to enforce and



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14

interpret this Agreement, including after the Bankruptcy Case is dismissed, closed, or

converted to another chapter of the Bankruptcy Code.

27. If any provision of this Agreement should be held invalid, illegal or

unenforceable in any respect by the Bankruptcy Court or a district court or appellate court in

an appeal therefrom, then, to the fullest extent permitted by law, the Agreement shall be

amended to add a provision as similar in terms to such invalid, illegal or unenforceable

provision as may be possible that is legal, valid and enforceable.

28. This Agreement shall not be assignable by anyone without the express written

consent of all of the Settling Parties. This Agreement shall be binding upon and enforceable

by (a) the Settling Parties, (b) each of the Settling Parties’ respective trustees, beneficiaries,

heirs, descendants, executors, successors and permitted assigns, and (c) each of the Estate

Releasees and Deloitte Releasees.

29. The Settling Parties specifically disavow any intention to create rights in third

parties under or in relation to this Agreement, except as otherwise expressly provided herein.



EXHIBIT A



UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

IN RE: ) )

ITT EDUCATIONAL SERVICES, INC., et al.1 ) Case No. 16-07207-JMC-7A )

Debtors. ) Jointly Administered __________________________________________) DEBORAH J. CARUSO, the chapter 7 trustee for ) the bankruptcy estates of ITT Educational Services, ) Inc., ESI Service Corp., and Daniel Webster ) College, Inc., )

) Plaintiff, ) Adversary No. 18-50276

) vs. )

) DELOITTE & TOUCHE, LLP, )

) Defendant. )

JOINT STIPULATION OF DISMISSAL OF ADVERSARY PROCEEDING WITH PREJUDICE

The plaintiff, Deborah J. Caruso, the chapter 7 trustee in the above-referenced bankruptcy

case (the “Trustee”) and the defendant, Deloitte & Touche LLP (the “Defendant”), each by their

respective counsel, pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure,

made applicable in this adversary proceeding pursuant to Rule 7041 of the Federal Rules of

Bankruptcy Procedure, hereby stipulate to the dismissal of this adversary proceeding with

prejudice.

1 The debtors in these cases, along with the last four digits of their respective federal tax identification numbers are ITT Educational Services, Inc. [1311]; ESI Service Corp. [2117]; and Daniel Webster College, Inc. [5980].



2

Dated: ______________, 2019 Respectfully submitted,

/s/ /s/ Christopher S. Turner John C. Hoard

Christopher S. Turner (admitted pro hac vice) John C. Hoard (Atty. No. 8024-49) LATHAM & WATKINS LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 2004 Tel: (202) 637-2200 Fax: (202) 637-2201 Email: [email protected]

RUBIN & LEVIN, P.C. 135 N. Pennsylvania Street, Suite 1400 Indianapolis, Indiana 46204 Tel: (317) 634-0300 Fax: (317) 263-9411 Email: [email protected]

Attorneys for Deloitte & Touche LLP Attorneys for Deborah J. Caruso, Trustee

CERTIFICATE OF SERVICE

I hereby certify that on _______________, 2019, a copy of the foregoing Joint Stipulation of Dismissal of Adversary Proceeding with Prejudice was filed electronically. Notice of this filing will be sent to the following party/parties through the Court’s Electronic Case Filing System. Party/parties may access this filing through the Court’s system.

John C. Hoard [email protected], [email protected]; [email protected]; [email protected] Christopher Turner [email protected], [email protected] U.S. Trustee [email protected]

I further certify that on __________________, 2019, a copy of the foregoing Joint Stipulation of Dismissal of Adversary Proceeding with Prejudice was mailed by first-class U.S. Mail, postage prepaid and properly addressed, to the following:

None.

/s/ John C. Hoard



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