Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-00906-JPF Document 19-5 Filed O4/20/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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OFFICIAL COMMITTEE OF UNSECURED :
CREDITORS OF OWENS CORNING, et al., 1
and CREDIT SUISSE FIRST BOSTON, as 1
AGENT to the BANK GROUP :
App‘i’HmS° E case Ne. cA·04~906 (rrr)
V f Case No. CA—04—907 (JPF)
OFF ICIAL COMMITTEE OF ASBESTOS 5
CLAIMANTS OF OWENS CORNING, et al., 2
Appeliee. ?
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MOTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF
OWENS CORNING FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF PURSUANT
TO RULE 7.1.2 OF THE LOCAL RULES OF CIVIL PRACTICE AND PROCEDURE
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
The Official Committee of Unsecured Creditors (the "Co1n1nercial Committee"),
one of the appellants in the above—captioned appeal cases (the "Appeal"), to the extent necessary,
hereby requests leave (the "Request”) pursuant to Rule 7.1.2 of the Local Rules of Civil Practice
and Procedure of the United States District Court for the District of Delaware (the "Local
Rules”) tc file a supplemental brief (the "AppelIant’s Supplemental Brief"), attached hereto in
draft form as Exhibit A, which addresses the recent opinion issued by the Court of` Appeals for
the Third Circuit (the "Third Circuit") in In re Combustion Er1gineerz`ng, 39E E36 190 (3d Cir.
2004) (the "Combnstion Engineering Opinion"). In support of the Request, the Commercial
Committee respectfully represent as follows:

Case 1:04-cv-00906-JPF Document 19-5 Filed O4/20/2005 Page 2 of 3
l. On August 27, 2004, the Commercial Committee filed the Brief of
Appellant the Official Committee of Unsecured Creditors of Owens Corning on Appeal of
Structural Relief Order (Docket No. 9) (the "Appellant’s Brief ’).
2. On October 15, 2004, the Commercial Committee filed the Reply Brief of
Appellant Official Committee of Unsecured Creditors of Owens Corning on Appeal from
Structural Relief Order (Docket No. l8).
3. On December 2, 2004, the Third Circuit issued the Combustion Engineering
Opinion, which represents the first decision of the Court of Appeals analyzing and mling on the
substantive and procedural legality of a confirmed plan of reorganization in an "asbestos chapter
ll." Relevant to this appeal, the Third Circuit determined, inter oiio, that: (a) the divergent
economic interests among asbestos claimants in an insolvent chapter ll case does create a conflict;
(b) structural and representational integrity must be maintained in an asbestos chapter ll; and (c)
regardless of the problems "asbestos" may pose for the legal system, the law rnust be applied as it
exists.
4. Pursuant to Local Rule 7.1.2, "[n]o additional briefs, affidavits, or other
papers in support of or in opposition to the motion shall be tiled without prior approval of the
Court, except that tz party may cali to the Courts attention and briefly discuss pertinent cases
decided after or party ’sjinel brief is jiled or offer ore! orgninent." (emphasis added).
5. To the extent necessary, the Commercial Committee hereby seek leave of
the Court to file the Appellant’s Supplemental Brief in order to address the Combustion
Engineering Opinion.
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Case 1:04-cv-00906-JPF Document 19-5 Filed O4/20/2005 Page 3 of 3
WHEREFORE, to the extent necessary, the Commercial Committee respectfully
requests that the Court grant them leave to file a supplemental brief substantially in the form
attached as Exhibit A hereto and not to exceed twelve (12) pages, within ten (l0) days ofthe date
of entry of this order.
WHEREFORE, to the extent this Request is granted, the Court grants appellees
leave to tile a supplemental brief addressing the Combustion Engineering Opinion, not to exceed
twelve (12) pages, within ten (l0) days ofthe service ofthe Appellants Supplernental Brief
Dated: April 20, 2005
MORRIS, NICHOLS, ARSHT & TUNNELL
it it K ,
William H. Sudell, Jr. (No. 463)
Eric D. Scliwartz (No. 3l34)
Gregory T. Donilon (No. 4244)
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
(302) 658~9200
—and·
DAVIS, POLK & WARDWELL
Lowell Gordon Harnss
James I. McC1am1ny
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Co—Connse1 for the Official Committee of
Unsecured Creditors
SO ORDERED this day
of , 2005.
THE HONORABLE JOHN P. FULLAM
UNlTED STATES DISTRICT COURT JUDGE
euros
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