WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue Gary T ...

WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 Gary T. Holtzer Robert Lemons Robert S. Berezin Attorneys for Reorganized Westinghouse Electric Company LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No. 17-10751 (MEW) : Debtors.1 : (Jointly Administered) --------------------------------------------------------x

REPLY IN SUPPORT OF MOTION OF REORGANIZED WESTINGHOUSE ELECTRIC COMPANY LLC FOR AN ORDER ENFORCING THE PLAN

INJUNCTION AND CONFIRMATION ORDER AND FOR RELATED RELIEF

1 On September 25, 2018, the Bankruptcy Court entered the Order (I) Consolidating the Administration of Certain Remaining Matters at the Lead Case; (II) Entering a Final Decree Closing Certain Affiliate Cases; and (III) Granting Related Relief, closing certain of the chapter 11 cases (ECF No. 3956). The reorganized debtors in the remaining chapter 11 cases, along with the last four digits of each reorganized debtor’s federal tax identification number are: Westinghouse Electric Company LLC (0933), Stone & Webster Services LLC (5448), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), and WECTEC Staffing Services LLC (4135). The reorganized debtors’ principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066.

17-10751-mew Doc 4616 Filed 05/11/21 Entered 05/11/21 11:51:52 Main Document Pg 1 of 16

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Docket #4616 Date Filed: 05/11/2021

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................2

I. The Events Giving Rise to EMD’s Claim—as Asserted in Both the Original and Amended Complaints—Occurred Before the August 2018 Effective Date. .......................2

A. EMD’s Claim for Actual Breach Arose Before the Effective Date. ........................2

B. EMD’s Claim for Anticipatory Breach Arose Before the Effective Date. ..............3

C. EMD’s Claim for Breach of the Covenant of Good Faith and Fair Dealing Arose Before the Effective Date. ........................................................................................5

II. EMD Cannot Circumvent the Plan Injunction By Asserting Pre-Effective Date Claims as Continuing Breaches. ...........................................................................................................6

CONCLUSION ................................................................................................................................9


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TABLE OF AUTHORITIES

Page(s)

Cases

Arriva Pharms., Inc. v. Lezdey (In re Arriva Pharms., Inc.), 456 B.R. 419 (Bankr. N.D. Cal.) .... 7

Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87 (2d Cir. 1997) ................................. 8

Farahzad v. Laws. Title Ins. Co., No. 10-CV-6010 JS AKT, 2012 WL 4344325 (E.D.N.Y. Sept. 21, 2012) ..................................................................................................................................... 8

Ga. Ports Auth. v. Diamond Mfg. Co. (In re Diamond Mfg. Co.), 164 B.R. 189 (Bankr. S.D. Ga. 1994) ........................................................................................................................................... 8

In re Cellnet Data Sys., Inc., 313 B.R. 604, 608–10 (Bankr. D. Del. 2004) .................................. 7

In re Relativity Fashion, LLC, No. 15-11989, 2016 WL 3212493 (Bankr. S.D.N.Y. June 1, 2016) .................................................................................................................................................... 8

Ostreicher v. Lincoln Nat’l Life Ins. Co., No. 17-6904, 2019 WL 7194478 (E.D.N.Y. Dec. 26, 2019) ........................................................................................................................................... 8


THE HONORABLE MICHAEL E. WILES, UNITED STATES BANKRUPTCY JUDGE:

Reorganized Westinghouse Electric Company, LLC (“WEC”), hereby respectfully

submits this reply in support of the Motion of WEC for an Order Enforcing the Plan Injunction

and Confirmation Order and for Related Relief (ECF No. 4606) (the “Motion”), and in response

to Curtiss-Wright Electro-Mechanical Corp.’s (“EMD”) Objection to the Motion (ECF No. 4614)

(the “Objection”).

PRELIMINARY STATEMENT

1. WEC demonstrated in its Motion that it exited the nuclear power plant

construction industry pursuant to orders leading up to, and culminating with, the Confirmation

Order.1 It further showed that, during the WEC’s Chapter 11 Cases, EMD never asserted that

WEC had breached the Letter Award, that the $0 cure amount was inadequate, or that WEC could

not provide adequate assurance of future performance. WEC also established that EMD’s $118

million breach of contract claim is based on WEC’s exit from the nuclear power plant construction

industry and therefore EMD is violating the Confirmation Order and Plan Injunction. It is clear

from the Objection that EMD is unable to dispute what is plain from the record. Instead, EMD

urges denial of WEC’s Motion on the grounds that its proposed amended complaint, attached as

Exhibit A to its Objection (the “Amended Complaint”), supposedly asserts only post-Effective

Date claims.

2. In fact, the Amended Complaint is more insidious than the one it would

replace. The Amended Complaint does not allege any grounds for breach of contract independent

of events arising during the bankruptcy. Rather, it remains squarely based on WEC’s exit from

1 Capitalized terms herein shall have the same meaning as in the Motion unless otherwise defined.


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the nuclear power plant construction industry – which supposedly made it impossible for WEC to

perform. EMD has simply deleted its admissions that this event occurred prior to the Effective

Date or clothed it in the present tense. For example, rather than allege that WEC could not perform

as soon as it exited from the nuclear power plant construction industry in 2017, see Compl. ¶ 21,

EMD now alleges that WEC “is not participating in the nuclear power plant construction industry”

and thus cannot possibly perform. Am. Compl. ¶ 24. In other words, EMD is asserting claims for

breach of contract based on circumstances – WEC’s exit from the nuclear power plant construction

industry – that merely continued after the Effective Date (i.e., WEC continued not to be in that

industry and thus allegedly continued to be unable to perform). Discharged and enjoined claims

arising prior to assumption of a contract (here, the Effective Date) cannot be asserted merely

because the circumstances giving rise to the claim continued after assumption. That EMD would

resort to such gamesmanship as an end-run around the Confirmation Order is precisely why

WEC’s Motion should be granted.

3. In light of the Amended Complaint, WEC submits with this Reply an

amended Proposed Order finding that EMD’s pending complaint and proposed Amended

Complaint are barred by the Confirmation Order and that enjoins EMD from asserting claims

based on WEC’s exit from the nuclear power plant construction industry prior to the Effective

Date, or its continued non-participation in that industry as of or after the Effective Date.

ARGUMENT

I. The Events Giving Rise to EMD’s Claim—as Asserted in Both the Original and Amended Complaints—Occurred Before the August 2018 Effective Date.

A. EMD’s Claim for Actual Breach Arose Before the Effective Date.

4. EMD asserts an actual breach claim against WEC, i.e., it failed to buy the

RCPs when it was time to do so under the Letter Award. As explained in the Motion, WEC’s duty


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to purchase the relevant RCPs from EMD is subject to the condition that WEC and Stone &

Webster, Inc. first enter into an EPC contract with a nuclear power plant owner. See Motion ¶ 6;

see also Letter Award (ECF No. 4607 Ex. 1) at 2. Even though this event has not yet occurred

(and EMD has not alleged that it has), EMD’s pending Complaint assumes WEC’s obligation to

buy the RCPs – and its breach for failing to do so – arose prior to the Effective Date. See Compl.

¶ 4 (“[N]early thirteen years since the Parties entered the Subcontract, [WEC] has only entered

into purchase orders with [EMD] for the supply of twenty-four (24) RCPs . . .”) (emphasis

supplied); id. ¶ 20 (“Although [WEC] committed to order thirty-two (32) RCPs . . . from [EMD]

in 2008, as of March 2021, [WEC] has only entered into purchase orders with [EMD] for the

supply of twenty-four (24) RCPs…). In its Amended Complaint, EMD deleted references to the

period before the Effective Date, and instead now alleges that WEC has not bought the RCPs since

assumption of the Letter Award (which was effective on the Effective Date). As discussed, EMD’s

breach claim continues to be based on WEC’s exit from the nuclear power plant construction

industry. To the extent EMD continues to base its claims on pre-Effective Date events, its actual

breach claims are barred.

B. EMD’s Claim for Anticipatory Breach Arose Before the Effective Date.

5. EMD alternatively alleges that, if WEC’s time for performance to purchase

the RCPs has not yet arisen, WEC’s exit from the nuclear power plant construction industry

constituted a repudiation of its obligation and that anticipatory breach arose in 2019 when a WEC

executive informed someone at EMD. Compl. ¶¶ 22, 33; Am. Compl. ¶¶ 25, 36.

6. As demonstrated in the Motion, however, EMD had notice prior to the

Effective Date of WEC’s exit from the nuclear power plant construction industry as evidenced by

this Court’s docket, and EMD does not, and cannot, dispute these facts. For example, EMD

received Chapter 11 filings in which WEC described its exit from nuclear power plant construction


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industry. See Motion ¶¶ 7-8, 11-13, 17, 21-22, 31.2 More importantly, EMD had actual notice as

WEC sought and obtained approval to exit that industry: WEC rejected its EPC contracts for the

Vogtle and V.C. Summer AP1000 projects, executed an amendment to its Vogtle project purchase

order, and entered into a new Vogtle Services Agreement—through which it relinquished authority

over the plant’s construction. See Motion ¶¶ 10-19. EMD was served with notice of these actions,

and actively participated in Bankruptcy Court proceedings related to them. See Motion ¶¶ 10-29.

Additionally, WEC put its construction equipment and tools from the V.C. Summer and Vogtle

projects up for auction, noting that they were “not material to the Debtors’ ongoing business.” See

Auction Motion ¶¶ 10-11; see also Order Granting the Auction Motion (ECF No. 2107). Again,

EMD was served with notice. See Aff. of Serv. (ECF No. 2033). Finally, WEC’s Disclosure

Statement described its business under the Plan and sale to Brookfield, and in doing so showed

Stone & Webster, Inc. — WEC’s one-time nuclear power plant construction consortium partner

cited in the Letter Award — as providing “Non-Nuclear Solutions.” See Disclosure Statement at

14. EMD obviously was served with the Disclosure Statement and filed no plan objection. See

Aff. of Service (ECF No. 2802).

7. For these reasons, if, as EMD alleges, WEC’s exit from the nuclear power

plant construction industry constituted a repudiation of the Letter Award, then that repudiation and

anticipatory breach occurred prior to the Effective Date as part of WEC’s bankruptcy. EMD’s

allegation that someone at EMD learned about these events for the first time in 2019 from someone

2 As described in the Motion, WEC announced its intention to use the Chapter 11 process to reorganize around its profitable businesses and exit the nuclear power plant construction business in Bankruptcy filings including the First Day Declaration of Lisa J. Donahue (ECF No. 4) ¶¶ 6, 29; the Vogtle Services Motion (ECF No. 769) ¶¶ 1-2, 37, 42, 54; id. Ex. B (Vogtle Services Agreement) § 4.5; Declaration of Lisa J. Donahue in Support of the Vogtle Services Motion (ECF No. 770) ¶ 17; the Auction Motion (ECF No. 1956) ¶ 10; and the Disclosure Statement (ECF No. 2623) at 14, 19, 27.


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at WEC does not change when EMD’s claim arose. To the contrary, EMD as an organization was

aware of the events giving rise to the alleged repudiation long before 2019. Accordingly, the claim

for anticipatory breached occurred before the Effective Date.

C. EMD’s Claim for Breach of the Covenant of Good Faith and Fair Dealing Arose Before the Effective Date.

8. EMD alleges that WEC breached the duty of good faith and fair dealing

because WEC’s (or more precisely, Stone & Webster Inc.’s) exit from the nuclear power plant

construction industry allegedly made it impossible for WEC to perform under the 2008 Letter

Award. See Compl. ¶¶ 20, 33; Am. Compl. ¶¶ 23, 36. The supposed impossibility due to these

events clearly arose, along with this breach claim, before the Effective Date.3

9. WEC’s Motion demonstrated that its “exit” from the nuclear power plant

construction industry occurred before the Effective Date. See Motion ¶¶ 7-33. Indeed, in the

Complaint, EMD explicitly alleged that WEC exited that industry in 2017. See Compl. ¶ 21 (“[O]n

information and belief, [WEC] exited the nuclear power plant construction industry in or around

September 2017—eliminating any possible way for [WEC] to place an engineering, procurement

and construction (‘EPC’) subcontract with [EMD] associated with the Unnamed Project. In other

words, as of 2017, [WEC] knew that it would not purchase the final eight (8) RCPs associated

with the Unnamed Project under an EPC subcontract with [EMD]) (notwithstanding its contractual

commitments in the Subcontract).”) (emphasis supplied). And, EMD’s Amended Complaint does

3 EMD’s assertion is baseless on the merits. Indeed, EMD acknowledges that WEC purchased 24 RCPs prior to the filing of the Complaint. See Compl. ¶ 20; Am. Compl. ¶¶ 23, 28. Three of those 24 RCPs were sold in 2019 and 2020, after WEC’s exit from the nuclear power plant construction business and the Effective Date. See Motion n.6. The RCPs in question were manufactured under a V.C. Summer RCP PO for which the EPC contract had been rejected. See id. n.5.


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not contradict the pending Complaint in that regard; rather, it is merely silent about when WEC

exited the nuclear power plant construction industry.

10. As with all of EMD’s breach of contract theories, its breach of the duty of

good faith breach claim is barred under the Confirmation Order. Indeed, EMD did not object to

assumption of the Letter Award, did not object to the $0 cure amount, and did not contend that

WEC could not provide adequate assurance of future performance. It never alleged that WEC’s

exit from the nuclear power plant construction industry constituted a breach of the Letter Award,

much less that it was impossible for WEC to perform. EMD’s only response as to why it is now

first asserting a $118 million breach of contract claim is that it “was not aware of any monetary

deficiency under the Letter Award” at the time of assumption. Obj. ¶ 11. That is woefully

inadequate in the face of the Confirmation Order. Because EMD’s breach of the duty of good faith

claim is premised on a pre-Effective Date event, it is barred.

II. EMD Cannot Circumvent the Plan Injunction By Asserting Pre-Effective Date Claims as Continuing Breaches.

11. EMD attempts to circumvent the Confirmation Order in its Amended

Complaint by deleting references to WEC’s pre-Effective Date exit from the nuclear power plant

construction industry, and by referring to WEC’s ongoing lack of participation in that industry.4

Thus, EMD now asserts that WEC breached the Letter Award because, after the Effective Date,

WEC remained in the same state it was in prior to it – outside of the nuclear power plant

construction industry and still supposedly unable to perform. For the proposition that a creditor

4 EMD appears to be alleging that its anticipatory breach claim arose in 2019 and is not a continuing breach, but if its position changes, the same arguments described here apply. A redline comparison of the Complaint and Amended Complaint is attached as Exhibit 1 to the Declaration of Robert Berezin in Support of WEC’s Reply, filed contemporaneously herewith.


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can assert a breach of contract claim for the first time under an assumed contract so long as the

circumstances causing that breach continue after the contract is assumed, EMD cites nothing.

12. To the contrary, the consequences of failing to assert potential defaults

under an executory contract to be assumed under a Plan (such as the Letter Award) include that

the creditor is precluded from asserting breach claims based on the same, albeit continuing, breach.

See Arriva Pharms., Inc. v. Lezdey (In re Arriva Pharms., Inc.), 456 B.R. 419, 427 (Bankr. N.D.

Cal.) (granting summary judgment barring claims for alleged post-assumption breach of a drug

licensing agreement, which were based on: (1) the debtor’s continued post-assumption use of

patents which were improperly recorded in violation of the agreement; and (2) debtor’s continued

post-assumption failure to correct the improperly recorded patents. The court held that,

notwithstanding the post-assumption conduct, the claims arose before assumption because they

were “necessarily grounded on [the] alleged prior breach.”). Plaintiffs may not “lie in wait” by

failing to allege a default or breach prior to assumption, and then turn around and bring a claim

after assumption that is grounded in the same facts). Id.

13. Indeed, “[w]here the nonbankrupt party has knowledge of facts sufficient

to place the party on notice that a ‘potential’ pre-confirmation breach has occurred, res judicata

bars that party from later asserting a claim based upon the pre-petition breach.” In re Cellnet Data

Sys., Inc., 313 B.R. 604, 608-10 (Bankr. D. Del. 2004), supplemented, No. 00-00844(PJW), 2005

WL 1331257 (Bankr. D. Del. June 6, 2005) (holding that res judicata barred a breach of contract

claim where, as here, the plaintiff alleged that a material term of an executory contract which had

been assumed in Chapter 11 was that the debtor must execute another contract, but the debtor

failed to do so both before and after assumption. The plaintiff had not asserted a default or

otherwise objected to assumption or the proposed $0 cure, and the Court held that the assumption


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and assignment did not impose on the assignee “an ongoing obligation to remedy [debtor’s pre-

assignment] breach” after assumption and assignment, nor did the assignee’s own post-assumption

“failure to execute [the contract] constitute a continuing breach” that would give rise to a separate

post-assumption claim.). The Cellnet court noted that courts have “rejected the argument that

failure to correct a previous breach constitutes another breach.” Id. at 610; see also Ga. Ports

Auth. v. Diamond Mfg. Co. (In re Diamond Mfg. Co.), 164 B.R. 189, 198-203 (Bankr. S.D. Ga.

1994) (holding that landlord’s breach of contract suit seeking indemnity and cleanup costs for

pollution—which had occurred pre-petition in breach of the lease, and which continued after the

debtor’s assumption of the lease with notice of the breach—was barred because the landlord was

asserting a breach claim based on a default which arose before the discharge order).5

5 The holdings of these cases align with standards within the Second Circuit for res judicata in the context of a bankruptcy court’s confirmation order, which looks to whether “the causes of action were the same,” and “whether an independent judgment in a separate proceeding would ‘impair, destroy, challenge, or invalidate the enforceability or effectiveness’ of the reorganization plan.” Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87–88 (2d Cir. 1997). To determine whether the causes of action are “the same” for purposes of the preclusive effect of a confirmation order, courts “examine whether the same transaction, evidence, and factual issues are involved in both cases.” Id. at 89. “The critical question for res judicata purposes is whether the party could or should have asserted the claim in the earlier proceeding.” In re Relativity Fashion, LLC, No. 15-11989 (MEW), 2016 WL 3212493, at *9 (Bankr. S.D.N.Y. June 1, 2016), aff’d, 696 F. App’x 26 (2d Cir. 2017); accord Farahzad v. Laws. Title Ins. Co., No. 10-CV-6010 JS AKT, 2012 WL 4344325, at *4 (E.D.N.Y. Sept. 21, 2012) (claims are “the same” if they “could have or should have [been] raised before confirmation of a bankruptcy plan.”) (alteration in original). “If a party had adequate information about prospective claims prior to the commencement of the bankruptcy proceeding, that is evidence that it could have brought the action in the first instance.” In re Relativity Fashion, 2016 WL 3212493, at *9 (citing In re Arcapita Bank, B.S.C.(c), 520 B.R. 15, 21 (Bankr. S.D.N.Y.2014)). Additionally, Courts have found that a separate proceeding would “impair, destroy, challenge, or invalidate” the effectiveness of a Plan where the Plan “settles the amount, source and payment schedule of the obligation that is the subject of [the] lawsuit.” Corbett, 124 F.3d at 92; see also Ostreicher v. Lincoln Nat’l Life Ins. Co., No. 17CV6904NGGJO, 2019 WL 7194478, at *6 (E.D.N.Y. Dec. 26, 2019) (claims were precluded where “a finding in [the plaintiff’s] favor would . . . provid[e] Plaintiff means to collaterally attack the Bankruptcy Court’s disposition of the [contract] in the Plan”).


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14. Accordingly, EMD cannot assert a breach of contract claim – or claims for

anticipatory breach or breach of the duty of good faith – based on WEC’s exit from the nuclear

power plant construction industry or its continued non-participation in it.

CONCLUSION

15. WHEREFORE, for the reasons set forth in the Motion and herein, and

pursuant to sections 105(a), 524(a)(2), and 1141(d)(1) of the Bankruptcy Code, Bankruptcy Rule

3020(d), Sections 9.1, 9.2, 11.1, and 11.9 of the Plan and paragraphs LL, NN, 9, 14, 15, 25, 34, 45

and 54 of the Confirmation Order, WEC respectfully requests that this Court issue an order finding

that EMD’s pending Complaint and proposed Amended Complaint are barred by the Confirmation

Order and that enjoins EMD from asserting claims based on WEC’s exit from the nuclear power

plant construction industry prior to the Effective Date, or its continued non-participation in that

industry as of or after the Effective Date. A revised proposed form of order granting the relief

requested herein is annexed hereto as Exhibit A (the “Revised Proposed Order”).

Dated: May 11, 2021 New York, New York

/s/ Robert S. Berezin WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 Gary T. Holtzer Robert Lemons Robert S. Berezin Attorneys for Reorganized Westinghouse Electric Company LLC


Exhibit A

Revised Proposed Order


UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No. 17-10751 (MEW) : Debtors.1 : (Jointly Administered) --------------------------------------------------------x

[PROPOSED] ORDER ENFORCING PLAN INJUNCTION AND CONFIRMATION ORDER AND GRANTING RELATED RELIEF

Upon the Motion of Reorganized Westinghouse Electric Company LLC for Order

Enforcing Plan Injunction and Confirmation Order and for Related Relief (ECF No. 4606) (the

“Motion”), filed by reorganized Westinghouse Electric Company LLC (“WEC”) pursuant to

sections 105(a) 524(a)(2), and 1141(d)(1) of title 11 of the United States Code (the ”Bankruptcy

Code”), Rule 3020(d) of the Federal Rules of Bankruptcy Procedures (the “Bankruptcy Rules”),

sections 9.2, 11.1, 11.9 and 13 of the Modified Second Amended Joint Chapter 11 Plan of

Reorganization (ECF No. 2986) (the “Plan”), and paragraphs LL, NN, 9, 14, 15, 25, 34, 45 and

54 of this Court’s Findings of Fact, Conclusions of Law, and Order Confirming the Plan (ECF

No. 2988) (the “Confirmation Order”); and the Court having jurisdiction to consider the Motion

and the relief requested therein in accordance with 28 U.S.C. §§ 157 and 1334, the Amended

Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.), section 13 of the Plan

1 On September 25, 2018, the Bankruptcy Court entered the Order (I) Consolidating the Administration of Certain Remaining Matters at the Lead Case; (II) Entering a Final Decree Closing Certain Affiliate Cases; and (III) Granting Related Relief, closing certain of the chapter 11 cases (ECF No. 3956). The reorganized debtors in the remaining chapter 11 cases, along with the last four digits of each reorganized debtor’s federal tax identification number are: Westinghouse Electric Company LLC (0933), Stone & Webster Services LLC (5448), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), and WECTEC Staffing Services LLC (4135). The reorganized debtors’ principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066.


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and paragraph 48 of the Confirmation Order; and consideration of the Motion and the relief

requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper

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

having been provided in accordance with the Order Pursuant to 11 U.S.C. § 105(a) and Fed. R.

Bankr. P. 1015(c) and 9007 Implementing Certain Notice and Case Management Procedures; and

a hearing having been held on May 13, 2021 at 10:00 a.m. (Eastern Time) to consider the relief

requested in the Motion; and the Court having found and determined that the legal and factual

bases set forth in the Motion establish just cause for the relief granted herein; and after due

deliberation and sufficient cause appearing therefor,

IT IS HEREBY ORDERED THAT:

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

2. Curtiss-Wright Electro-Mechanical Corporation (“EMD”)’s Complaint in

Curtiss-Wright Electro-Mechanical Corp. v. Westinghouse Electric Company, LLC, No. 2:21-cv-

00390-NR, in the District Court for the Western District of Pennsylvania (the “Pennsylvania

Action”), and its proposed Amended Complaint (ECF No. 4614-1) describe claims that arose prior

to the Effective Date and therefore they are precluded under the Confirmation Order.

3. The Confirmation Order discharged EMD’s breach of contract claims based

on the Debtors’ exit from the nuclear power plant construction industry prior to the Effective Date,

and on WEC’s continued non-participation in that industry as of or after the Effective Date.

4. Pursuant to Section 11.9 of the Plan and paragraphs 14 and 15 of the

Confirmation Order, EMD is hereby enjoined from asserting claims as described in paragraph 3.

5. EMD shall dismiss or amend its Complaint in the Pennsylvania Action

within fourteen (14) days from the lifting of the stay in the Pennsylvania Action.


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6. The Court shall retain jurisdiction to hear and determine all matters arising

from or related to the implementation, interpretation, and/or enforcement of this Order.

Dated: , 2021 New York, New York

THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE


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