Free Appendix - District Court of Delaware - Delaware

Case 1:07-cv-00004-ER Document 13 Filed 07/10/2007 Page 1 of 3
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In Re: ARMSTRONG WORLD INDUSTRIES, INC., etal.
SEA-PAC SALES COMPANY, Civil Action N0. 07-4
Appellant Bankruptcy Case N0. 00-04471
t : Appeal N0. 06-77
( ARMSTRONG WORLD INDUSTRIES,
INC., :
Appellee
SUPPLEMENTAL AUTHORITIES IN SUPPORT OF APPELLANT’S OPENING
BRIEF
EcKERT SEAMANS CHERIN & MELLoTt, LLC
Karen Lee Turner (No. 4332)
Michael G. Busenkell (N0 3933)
300 Delaware Avenue, Suite 1360
Wilmington, DE 19801
(302) 425-0430
-ancl—
KARR TUTTLE CAMPBELL
Michael M. I-Ieinberg
Diana K. Carey
1201 Third Avenue, Suite 2900
Seattle, Washington 98102
(206) 223-1313
-and—
Roxana & VAN KAMPEN PLLC
Al Van Kampen
1001 Fourth Avenue, Suite 4050
Seattle, Washington 98154
(206) 386-7353
Attorneys for Sea—Pac Sales Company

Case 1:07-cv-00004-ER Document 13 Filed 07/10/2007 Page 2 of 3
COMES NOW the Appellant, Sea—Pac Sales Company, by and through its undersigned
counsel, Eckert Seamans Cherin & Mellott, LLC, and respectfully submits the Supplemental
Authorities in support of Appellant’s Opening Brief filed on February 5, 2007.
SUPPLEMENTAL AUTHORITIES
Third Circuit Court of Appeal
Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 219 (April 6, 2007) (Where an
y allegation of waiver, delay or a like defense is based on noncompliance with a contractual
I condition precedent to arbitration, the arbitrator not the court should decide the merits of these
defenses)
Other Circuit Courts of Appeal
Whiting-Turner Contracting C0. v. Electric Machinery Enterprises, Inc. (In re Electric
Machinery Enterprises, Inc.), 479 F.3d 791, 798-99 (11th Cir. Feb. 23, 2007) (holding that
debtor’s action to recover funds held by creditor in constructive trust for debtor was a non-
core proceeding, which the debtor was required to arbitrate under parties agreement because,
bankruptcy court has no discretion to deny enforcement of arbitration clause in non—core
proceeding; and further holding, that even if it were a core proceeding, arbitration would be
compelled because a bankruptcy court only has discretion to deny enforcement of the arbitration
agreement where it actually makes a sufficient finding that enforcing an arbitration agreement
would inherently conflict with the Bankruptcy Code).
United States District Courts
Goldman, Sacks & Co. v. Frankel, 2007 U.S. Dist. LEXIS 36674 at *9-10 (May 17,
2007) (holding that although the parties agreement specified New York law controlled whether
the claims petitioner sought to arbitrate under an otherwise applicable arbitration clause were
barred by the state statute of limitations, the Federal Arbitration Act controlled, and it was for
the arbitrators to decide whether petitioner’s claims were time barred, not the court).
Motors Insurance Corp. v. Pasco, Inc., 2007 U.S. Dist. LEXIS 3993 at *28 ((N.D.
Ohio January 19, 2007) (holding where there is a waiver or laches claim that a party has
unnecessarily delayed in asserting its right to arbitrate, it is for the arbitrator to decide the
timeliness of the claims asserted in the arbitration).
Bankruptcy Courts
_ In re Jacqueline B. Cooley, 2007 Bankr. LEXIS 513 at *18—22 (N .13. Ala. Feb. 14,
2007) (granting motion by creditor to compel arbitration under the FAA of debtor’s
counterclaim to creditor’s proof of claim based on Truth in Lending Act and holding that
notwithstanding the fact it was a core proceeding, bankruptcy court had no discretion to deny
enforcement of the arbitration clause in the loan documents citing inter alia Mintze v. Am.
Gen. Fin. Serv., Inc. (In re Minlze), 434 F.3d 222, 229 (3d Cir. 2006)).
In re Dixon, 2007 Bankr. LEXIS 783 at *10 (Bankr. M.D. Ala. Mar. 5,
2007) (granting motion by creditor to compel arbitration under the FAA of debtor’s complaint

Case 1:07-cv-00004-ER Document 13 Filed 07/10/2007 Page 3 of 3
under Truth in Lending Act based on arbitration clause in loan agreement and holding court
had no discretion under Elec. Mach. Enter. , supra to deny arbitration of non—core matter).
In re Johnny Wayne Dawsey, 2007 Bankr. LEXIS 1381 at *10-11 (Bankr. M.D. Ala.
Apr. 16, 2007) (granting motion by creditor to compel arbitration under the FAA of debtor’s
complaint under Truth in Lending Act based on arbitration clause in loan agreement).
In re Warren R. Fries, 2007 Bankr. LEXIS 1230 at *2 (Banlcr. Md. May 16, 2007)
i (holding that creditor’s motion to stay debtor’s objection to creditor’s claim pending arbitration
would be granted based on arbitration clause in construction contract notwithstanding fact that
A debtor’s objection to the creditor’s claim was a core proceeding).
A WHEREFORE, Appellant Sea—Pac Sales Company respectfully requests the Court’s
consideration of the Supplemental Authorities in support of Appellant’s Opening Brief.
Respectfully submitted,
Ectcaur Si2AMAns Cuerun & MELLOTT, LLC
(NO. 4332)
Michael G. Busenkell (No 3933)
300 Delaware Avenue, Suite 1360
Wilmington, DE 19801
(302) 425—0430

Case 1:07-cv-00004-EF1 Document 13-2 Filed 07/10/2007 Page 1 of 1
CERTIFICATE OF SERVICE
I, Michael G. Busenkell, certify that on this 10* day of July, 2007 I caused a
true and correct copy of the foregoing Supplemental Authorities in Support of Appellant’s
Opening Brief to be served via First Class Mail, postage pre—paid upon the following:
i Mark D. Collins, Esquire Stephen Karatakin, Esquire
Jason M. Madron, Esquire Debra A. Dandeneau, Esquire
Richards, Layton & Finger, P.A. Weil, Gotshal & Manges, LLP
One Rodney Square 767 Fifth Avenue
P.O. Box 551 New York, NY 10153
Wilmington, DE 19899
Louis J. Rouleau, Esquire
Womble Carlyle Sandridge & Rice, PLLC
1401 Eye Street NW
Seventh floor
Washington, DC 20005

i l tii. .
Michael GZJBusenkell (No 3933)
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