Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNTED STATES BANUPTCY COURT FOR THE DISTRCT OF DELAWAR
fure:
W. R. GRACE & CO., et aI.,
Debtors.
) ) )
Chapter 11

Case No. 01-01139 (JKF)
Jointly Administered

) )
)

W. R. GRACE & CO., et al.

Plaintiffs,
v.

) ) ) ) )
) ) )

Adversary No. A -01-771

MAGART CHAKAN, et al.,
AN JOHN DOES 1-1000,
Defendants

Re: Docket

Nos.: 511

) ) )
)

MOTION FOR LEAVE TO APPEAL ORDER ENJOINING ACTIONS AGAINST BNSF

(CORRCTED) OPPOSITION OF W.R. GRACE & CO. TO LIBBY CLAINTS'

The "Libby Claimants" once again seek to appeal an interlocutory order from the
Banptcy Court enjoining certain actions that have the potential to hinder the estate's orderly
emergence from Chapter 11, particularly at this critical moment where Grace is moving

towards

plan confiation and resolution of these Chapter 11 cases. The Libby Claimants' request to

appeal the fujunction Order should be denied. First, the Libby Claimants' torted reading of
the relevant statutory provisions does not change the fact that preliminar injunctions issued by

the Banptcy Court are not appealable as a matter of right. Second, an interlocutory appeal of
the injunction is not proper because the criteria for a proper interlocutory appeal have not been

met. The Libby Claimants have not demonstrated the existence of exceptional circumstances
sufficient to justify such an appeaL. There is no substantial ground for a difference of opinion as

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to a controlling question of law. Nor would the immediate appeal of the order materially
advance the ultimate termination of the bankptcy case.

BACKGROUN
On April

2, 2001 (the "Petition Date"), the Debtors, W.R. Grace & Co. and its affiliated

companies (collectively, "Debtors" or "Grace"), filed their voluntary petitions for relief under

A temporary restraining order was entered on the Petition Date enJoining the

commencement or prosecution of asbestos actions against the Affiiated Entities. On May 3,
2001, the Bankptcy Court issued a preliminary injunction barng the prosecution of currently

pending actions against the Affiliated Entities. On Januar 22, 2002, the Court expanded the
scope of the preliminary injunction to include certain additional Affiliated Entities and to

reinstate the bar against commencement of new actions against Affiiated Entities arising from

alleged exposure to asbestos whether indirectly or directly caused by the Debtors (the
"fujuhction").2
A. . The Expansion of the Preliminary Injunction to Include BNSF.

Burlington Northern & Santa Fe Railroad ("BNSF") has been named as a defendant in
over 1 00 suits involving over 600 plaintiffs (collectivelý the "Libby Claimants") with personal

4/2/0 I Verified CompL for Declaratory Injunctive Relief (Adv. Pro. D.I. I).
2

l/22/02 Order Granting Modified Prelimnary Inj., (Adv. Pro. D.L 87).

2
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injur claims alleging some kind of exposure to asbestos and involving' the Debtors' former

Montana vermiculite ore mining operations (the "Montana Actions").

Between 1938 and 1995, BNSF and its predecessor entered into varous agreements with

Grace and its predecessors (collectively, the "Agreements") relating to the Debtors' mining
operations in Libby, Montana. As par of the Agreements, BNSF granted permission to Grace to
use certain BNSF property or granted a right of way for the Debtors to conduct certain operations

across or on BNSF property. Grace mined vermiculite ore from the Libby mine, which was then

transported principally by raiL. The vermiculite ore was transported from the mine to a loading

dock, utilizing the Libby suspension bridge and conveyor belt. Grace then loaded the ore onto

railroad cars for transport to varous facilties, ultimately for distrbution and sale. BNSF
employees attched loaded railroad cars carying vermiculite ore from the Libby mine to their
trains and BNSF's trains carred the vermiculite ore to various destinations. Under certin ofthe
Agreements, Grace agreed to indemnify and hold BNSF harmless for any liability on àccount of
injur or death of one or more persons resultig from the constrction, repair, maintenance or

operating of the 'loading dock, conveyor belt or bridge whether caused by the negligence of

BNSF, its agents, employees or otherwise.

Grace also agreed to obtain insurance for BNSF. BNSF has alleged that Grace both
obtained separte i.nsurance policies for BNSF and/or named BNSF as an additional insured

under Grace's policies, including policies which Grace subsequently may have settled prior to

the Petition Date.3 As part of those settlements, the fusurers paid Grace certin amounts in

3

Grace denies that BNSF was named as an additional insured under any of its settled policies.

3
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exchange for Grace's agreement to indemnify and hold the fusurers harless from any suits

arising under the settled policies in the future.

On March 26, 2007, Grace fied a motion to expand the Preliminar Injunction to

encompass the Montaa Actions.4 The Libby Claimants opposed that motion.5 On May 21,

2007 the Banptcy Court heard arguments on the BNSF fujunction Motion. The Banptcy
Court indicated that while the fujunction Motions were under advisement, the status quo should
be maintained and the temporary stay previously entered on January 17, 2006 should effectively
be continued. On August 29,2007, the Banptcy Court entered its Amended Order Regarding

Motions to Expand Preliminar fujunction (the "Stay Order"), which provided the following:

the fujunction Motions, all actions commenced against the State of Montana and/or BNSF that arise out of alleged exposure to asbestos indirectly or directly caused by the Debtors (the "Montaa

ORDERED that pending the Court's ruling on

Actions"), shall be temporarily stayed pending the Cour's ruling on the
Injunction Motions.
(Adv. Pro. D.I. 466). On April

11, 2008, the Bankptcy Court issued its memoradum opinion

expanding the injunction to cover the Montana Actions (the "Injunction Order").6

The Libby Claimants are represented primarily by two firms, McGarey, Heberling,
Sullivan & McGarvey and Lewis, Slovak and Kovavich. The lawsuits against BNSF are not the

Libby Claimants' first attempt to collect monies from third-paries as a result of injuries

allegedly caused by exposure to materials harvested from the Libby Mine. fudeed, it was the

,Libby Claimants' effort to recover against Grace's insurer Maryland Casualty Company
4
5

3/26/07 Debtors' Mot. to Expand the Prelim. Inj. to Include Actions Against BNSF (Adv. Pro. D.I. 398).
4/13/07 Opp'n of Libby Claimants to Debtors' Mot. to Expand the Prelim. in. to Include Actions Against BNSF (Adv. Pro. D.L 417).
41l4/08 Mem. Op. (Adv. Pro. D.L498).

6

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("MCC") that lead directly to the Third Circuit's Gerard decision -_ affirming the propriety of
the Banptcy Court's injunction. See Gerard v. WR. Grace & Co., 115 Fed. Appx. 565 (3rd
Cir. 2004). A similar attempt by the Libby Claimants to recover against the former owners of

the Libby mine, the Montana Vermiculite Company, were also enjoined by the Banptcy
Court. WR. Grace & Co. v. Chakarian (In re WR. Grace & Co.), 315 B.R. 353 (Bank. D. DeL.

2004).

ARGUMENT I. THE INJUCTION ORDER IS NOT APPEALABLE AS OF RIGHT.

The Libby Claimants' attempt to circumvent 28 U.S.C. § 158(a)(3) by assertng that
"(t)he Order is an

injunction, and as such, is immediately reviewable by this Cour pursuant to 28

U.S.C. § 158(a)(l) or 28 U.S.C.§ 1292(a)(1)'." Libby Claimants' Br. at 6 (èmphasis added). The

Libby Claimants' jurisdictional analysis is flawed from the outset. First, Section 158(a), not

Section 1292(a)(1) governs appeals of bankptcy cour orders to the distrct courts. Second,

injunctions are not final orders and, thus, may not be appealed as of right under Section
158(a)(I). The Inunction Order may be appealed only by leave of

this Court under § 158(a)(3).7
A. Appeals of Bankruptcy Court Orders to the District Courts Are Governed by

28 U.S.C. § 158(a).

This is now the third time that the Libby Claimants have argued to this Cour that 28

U.S.C. § 1292(a)(1) grants them a right to appeal an order entered by the Bankptcy Cour.
7

The Libby Claimants' arguent that orders regarding injunctions are appealable as of right is contrdicted by

their objection to Grace's request for leave to appeal the Banptcy Cour's denial of Grace's request to expand the injunction to include the Libby Claimants' claims against the state of Montana (the ''Montaa
Injunction Denial Order"). See 412l/08 Opposition of Libby Claimants to Motion of W.R Grace for Leave to

Appeal Order Denyig Injunction, at 8-9 (Adv. Pro. D.I. 505). There, the Libby Claimants argue that the
Montana Injunction Denial Order is interlocutory and can only be appealed by leave under Section 158(a)(3).
See id. The Libby Claimants cannot have it both ways. Either both the granting of inunctions and denials of

injunctions are appealable as a matter of right or neither are. And of coure neither are appealable as a matter of right for the reasons discussed above.

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Once again, the Libby Claimants avoid discussing the clear text of Section 1

292(a)(l). hi

relevant statutory text not quoted by the Libby Claimants, 28 U.S.C. § 1292(a)(1) grants "the

court of appeals" jurisdiction over certain appeals from "(i)nterlocutory orders of the distrct
court of the United States." That is the begining and the end of the matter: This Court, even

when sitting in an appellate capacity in bankptcy, is not one of the "courts of appeals," and the
Banptcy Court is not one of the "distrct courts of

the United States."

As this Court has recognized previously, its jurisdiction over the Libby Claimants'

appeals of expansions of the injunction is governed not by 28 U.S.C. § 1292, but instead by 28
U.S.C. § 158:

MR. LANDAU: I do think that the first question before you really is, you know, what is your basis for hearig this appeal, and the other side has suggested that it's
1292, which is the basis--

THE COURT: No, I don't agree with that at alL.

MR. LANAU: Okay
THE COURT: So, you don't have to argue that.

MR. LANAU: Okay. Fair enough.
THE COURT: I don't

read it--

MR. LANAU: So, then we are really in the world of 158, and you do have
authority under 158(a)(3) to hear -- to exercise jurisdiction over interlocutory
( orders J.
THE

COURT: Yes.

4/25/06 Hr'g Tr. (Dist. Crt. App. D.I. 27) at 12:1-15; see also 28 U.S.C. § 158(a).8

8

See generally Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 252 (1992) ("Banptcy appeals are governed

for the most part by § 158," except when taken from a distrct cour to a cour of appeals, in which case § 1292
also applies); In re Resorts Int'l, Inc., 372 F.3d 154, 160 (3d Cir. 2004) ("The Distrct Cour had

jursdiction to review the Banptcy Cour's order under 28 U.S.c. § 158. We (the cour of appeals) have jursdiction under 28 U.S.c. § 1292(b)."); Landon v. Hunt, 977 F.2d 829, 830 (3d Cir. 1992) ("The distrct cour jursdiction is
from 28 U.S.c. § 158(a). Our (cour of appeals) jursdiction is from 28 U.S.C. § i

58(d), and 28 U.S.C. §§ 1291
(Continued. . .)

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Despite the Cour's prior ruling, the Libby Claimants persist in arguing that whether you

look to § 1292 or § 158, the result is the same -- an injunction may be appealed as a matter of
right. Tellngly, however, § 158(a) does not contain a provision analogous to § 1292(a)(1),

which grants the cour of appeals jursdiction over interlocutory appeals from distrct cour
orders grting injunctions. Rather, with the exception of appeals from interlocutory orders

under § 1121(d)-not applicable here-§ 158(a) grants distrct court jursdiction over
interlocutory orders of the bankptcy courts only "with leave of the (distrct) court." See, e.g.,
In re Enron Corp., 316 B.R. 767, 770 (S.D.N.Y. 2004) ("This Court may not consider this appeal

unless (1) the order being appealed from is final or (2) the Cour grants leave to appeal an
interlocutory order."). In other words, there is no appeal as of right to the distrct court under

§ 158(a) from a bankptcy court order granting an injunction, whereas there is an appeal as of
right to the court of appeals under § 1292( a)

(1 ) from a distrct cour order granting an

injunction.9
The Libby Claimants base their contrar position entirely on two cases: (1) In re

Professional Insurance Management, 285 F.3d 268 (3d Cir. 2002), and (2) In re Reliance

Acceptance Group, Inc., 235 RR. 548, 553 (D. Del 1999). Neither case provides any basis for
this Cour to ignore the plain language of the relevant statutes.

Professional Insurance: The Third Circuit in Professional. Insurance held that a
banptcy cour tuover order is final and hence appealable as of right. See 285 F.3d at 28082. hi a footnote, the court then stated that "the Distrct Court, sitting as an appellate court, was
and 1292."); In re Pruitt, 910 F.2d 1160, 1164 (3d Cir. 1990) ("Appeals from orders of a bankptcy judge are governed by 28 U.S.C. § 158(a).")
9

See, e.g., In re Kassover, 343 F.3d 91, 95 (2d Cir. 2003) ("Congress has expressly vested discretion in distrct
cour to decline to hear (an) appeal" from a bankptcy cour order granting an injunction); In re Quigley Co.. 323 B.R. 70, 76-79 (S.D.N.Y. 2005) (denying leave to appeal an injunction under § 158(a)(3)).

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authoried to hear the appeal from the Bankptcy Cour as an appealable injunctive order under
28 U.S.C. § 1292(a)." Id. at 282 n.16. Because the Court had already concluded that the order

was final, that statement is manifestly dicta, and unsupported dicta at that: the Third Circuit

provided no authority for its startling and anti-textual suggestion that 28 U.S.C. § 1292(a)
independently governs appeals from banptcy courts to distrct court. Under settled Third

Circuit law, of course, such unexarrined dicta is not controllng.10 fudeed, to follow the dicta

from the footnote in Professional Insurance would be to reject the long line of Third Circuit
cases, noted above, recognizing that appeals from the bankptcy court to the distrct cour are

governed by § 158(a), while banptcy appeals from the distrct court to the court of

appeals are

governed by §§ 158(d), 1291, and 1292.
Reliance Acceptance: The Delaware Distrct Cour in Reliance Acceptance, for its part,

began by acknowledging that "28 U.S.C. § 158(a) governs the (distrct) court's jurisdiction to
review orders of the bankptcy court." 235 B.R. at 553. The court then cited § 158(c)(2),
which provides that "(a)n appeal under subsection (a) ... of

this section shall be taken in the same

maner as appeals in civil proceedings generally are taken to the courts of appeals from the
distrct cours...." Id. The latter provision, the cour suggested, implicitly incoiporates

§ 1292(a) into § 158, apparently

on the theory that the "manner"of taking an appeal from the

distrct cour to the court of appeals includes the grounds for takng such an appeaL. That

suggestion, for which the cour provided no support, is meritless. The "maner" for taking an
appeal refers to the procedures for taking an appeal, not the grounds for taking an appeaL. Were
10 See, e.g., Patel v. Sun Co., 141 F.3d 447,462 n.lI (3d Cir. 1998) ("As dictum, there are many reasons why we

should not give it weight here: (I) it may not have been as fully considered as it would have been if it were

essential to the outcome; (2) sloughg it off in a new opinon wil not affect the analytc Strctue of the
original opinion; and (3) the dictum may lack refinement because it was not honed through the fires of an
adversar presentation. ").

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the law otherwise, then § 158(a) would be superfluous because the bankptcy statute would
simply incorporate wholesale the grounds for appealability set forth in 28 U.S.C. §§ 1291 and
1292.11

For this reason, distrct court look to 28 U.S.c. § 1292(b) for guidance in deciding

whether to grant leave to appeal an interlocutory order under 28 U.S.c. § 158(a)(3). See, e.g.,
Enron, 316 B.R. at 771; In re DeL. & Hudson Ry. Co., 96 B.R. 469, 473 (D. DeL. 1989).

Needless to say, such "guidance" would be unecessary if § 1292 by its own terms
independently governed appeals from the bankptcy court to the distrct cour. "It would make

litte sense for the bankptcy appeal statute to group preliminar injunctions with other
interlocutory orders but intend for 'leave to appeal' these injunctions to be granted as of right

simply because Section 1292 treats interlocutory injunctions differently from other

,interlocutory

orders." Quigley, 323 B.R. at 76-77. Indeed, where a distrct court declines, in the exercise of
its discretion, to hear an appeal of a banptcy court order granting or denying an injunction,

that decision is not appealable to the court of appeals. See, e.g., Kassover, 343 F.3d at 93-96.
B. The Order Is Not a Final Order Appealable as of

158(a)(1).

Right Under 28 U.S.C. §

In a new twist, the Libby Claimants now argue that injunctions are final orders
appealable as of right under § 1

58(a)(1). To the extent that the single case relied upon by the

Libby Claimants for this proposition, In re Excel Innovations, Inc. 502 F.3d 1086, 1092 (9th Cir.
2007), can be interpreted as providing that injunctions are necessarly final orders, that case is

contr to Third Circuit authority. As the Third Circuit has held, "(w)hether an order is 'final'

(

II The Libby Claimants' reliance on In re Midstate Mortgage, 2006 WL 3308585 (D.N.J. Nov. 6, 2006) is

misplaced for the same reason. Midstate Mortgage simply echoes Reliance Acceptance's flawed logic in reaching the same conclusion.

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depends on its effect." Marcus v. Twp. of Abington, 38 F.3d 1367, 1370 (3d Cir. 1994). Here,
the Order did not resolve any issues in the Montana Actions, it only delays litigation until these

Chapter 11 cases are confirmed. The Third Circuit repeatedly has held that orders staying
litigation are not final appealable orders because they merely delay proceedings in the suit. See,

e.g., CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc., 381 F.3d 131 (3d Cir. 2004), Marcu, 38
F.3d at 1370; Schall v. Joyce, 885 F.2d 101, 104 (3d Cir. 1989); Cheyney State College Faculty
v. Hufstedler, 703 F.2d 732, 735 (3d Cir. 1983); see also Hoots v. Pennsylvania, 587 F.2d 1340,

1346-47 (3d Cir. 1978) (noting that mere delay does not render an order final for puroses of
appeal). While these cases are not banptcy cases, the same reasoning applies here: The

fujunction Order is not final because the effect of the order is merely the delay oflitigation.

n. THERE is NO BASIS TO GRANT AN APPEAL OF THIS INTERLOCUTORY ORDER. Although the expansion of the injunction is interlocutory and not appealable as a matter

of right under 28 U.S.C. § 158(a)(1), distrct court have discretion to grant paries leave to
appeal from "interlocutory orders and decrees." 28 U.S.C. § 158(a)(3). When determining

whether to grant leave to appeal an interlocutory order, courts within the Third Circuit employ
the standards set forth in 28 U.S.C. § 1292(b) governing interlocutory appeals from distrct
cours to the circuit courts of appeals. See In re Edison Bros. Stores, Inc., 1996 WL 363806, *3

(D. DeL. June 27, 1996). Interlocutory review is only proper where the appellant can
demonstrate two things:

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· First, the appellant must demonstrte that there is a controlling question of law upon
which there is substantial grounds for difference of opinion and that an immediate
appeal wil advance the termination of

the litigation. Id.12

· Second, even if the above showing can be made, the appellant must establish
exceptional circumstances justifyng a departre from the basic policy of postponing review until after entr of a final judgment. See id. ("Although the concept of finality

is accorded some measure of flexibility in the context of § 158(a)(l) appeals,
apparently the same standard does not apply in the context of § 1

interlocutory appeals. Thus, an appellant must establish that 'exceptional 58(a)(3)
circumstances justify a depare from the basic policy of postponing review until after the entr of final judgment. "') (quoting In re Del. & Hudson Ry. Co., 96 RR. 469,472-73 (D. DeL. 1989)); Dal-Tile Intern., Inc. v. Color Tile, Inc., 203 B.R. 554,

557 (D. DeL. 1996) ("Additionally, a court wil entertain an appeal under section
1292(b) only when an appellant demonstrates that 'exceptional circumstances justify departe from the basic policy of postponing review until after the entr of final
judgment. ").

fu this case, the Libby Claimants have failed to demonstrate that there are grounds for
interlocutory review. First, there is no substantial grounds for a difference of opinion as to any

controllng question of law. Second, the allowance of an immediate appeal would not aid, and

would in fact hinder, the ultimate termination of the banptcy. Third, the Libby Claimants
have failed to demonstrate any exceptional circumstaces that would justify the allowance of an
interlocutory appeal of

the fujunction Order.

A. There Is No Substantial Grounds For A Difference Of Opinion As To A
Controllng Question Of Law.

The Libby Claimants have identified two controllng questions of law for which they

contend that there are "substantial grounds for a difference of opinion from the Bankptcy

12 This test is traditionally articulated in thee par. See In re Edison Bros. Stores, 1996 WL 363806, *3 ("An
interlocutory appeal will be granted only when the order at issue (I) involves a controlling question oflawas to which there is (2) substantial ground for difference of opinion and (3) when an immediate appeal from the order

may materially advance the ultimate termnation of the litigation.") As there is no dispute that controlling
there are substantial grounds for a differenceaddress the two prongs of an immediate appeal will matenally of opinion and whether the test that are at issue (i.e., whether
advance the ultimate termnation of questions of law are involved, Grace will only

the litigation.).

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Cour's holding in the (Injunction) Order." Libby Claimants' Br. at 25. The Íust is the

Banptcy Cour's finding that it had subject-matter jurisdiction over the Montaa Actions.
The second is the Bankptcy Cour's finding that the expansion of the fujunction to include the

Montana Action was proper. However, there is no substantial grounds for a difference of
opinion as to either issue.
1. Contractual Indemnification Agreements Give Rise To Related To

Jurisdiction And There Is No Disagreement About That Issue In The Third Circuit.
Controlling law in the Third Circuit is unequivocal that a bankptcy cour may exercise

"related to" jursdiction over a case involving a third pary where there is a contractual indemnity

between the third party and the debtor. This was precisely the issue the Third Circuit addressed
in its Gerard decision.

13

In Gerard, the Libby Claimants requested that the Court's § 105 injunction be modified
to allow them to pursue an alleged direct cause of action against Grace's insurance carer, MCC,

.for its role in the design of the dust control system for the Libby mine. The Third Circuit found

that the Bankptcy Court's refusal to modify the injunction was proper for several reasons.
First, and foremost, as there were contractual indemnity provisions between MCC and Grace,
"the prospect of indemnification by Grace made inclusion of a stay of suits against MCC
appropriate." Gerard, 115 Fed. Appx. at 568. Second, in order for

the case against MCC to

proceed, "discovery from Grace would be needed." /d. at 569. Third, "Grace's absence (from

13 In the Montaa Denial Order, the Banptcy Court attempted to limit Gerard to intances where there is a
to demonstrate on

contractual indemnty obligation. Although the Bankptcy Cour was in error on the issue (as the Debtors seek appeal), even if such a distinction were appropriate, it would not apply here because this case

involves numerous contrctual indemnifications.

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the cases against MCC) would disadvantage both MCC and Grace as a practical and legal
matter." ¡d.

The same rationale justifyng the expansion of the injunction that applied in Gerard
applies here. First, Grace has multiple contractual obligations to indemnify BNSF that may be
implicated.

14 Thus, there is a "prospect of indemnification" based on the contracts between

Grace and BNSF. Second, in order for the case against BNSF to proceed, both the Libby
Claimants and BNSF would need to obtain discovery from Grace. Third, Grace's absence from

the cases against BNSF would disadvantage both Grace and BNSF as a practical and legal
matter. See Mem. Op. at 27-29 ("If the actions proceed without Debtors, Debtors wil not have
an opportnity to defend their conduct or products '" Additionally, forcing the Debtors to now

paricipate in the Montaa Actions to prevent these adverse consequences (indemnity, collateral
estoppel, and record taint) wil encumber the estates with additional

litigation burdens."). It is clear that Gerard, which involved nearly identical factual circumstances, is law of the case and

must be followed. See Fagan v. City of Vineland, 22 F.3d 1283 (3rd Cir. 1994).15 And,
critically, none of the cases that the Libby Claimants cite are to the contrary.

14 Grace does not concede and specifically denies that BNSF has valid contractual indemnification rights against

Grace for the causes of action alleged in the Montana Actions.
15

The fact that the Third Circuit Opinon is marked as "Not precedential" does not make it any less relevant or controlling in this case. According to the Thid Circuit's internal operating Procedure 5.3, an opinion marked as
"not precedential" is so designated because it "appears to have value only to the trial cour or the paries. . ."

The "not precedential" designation is clearly not intended to suggest that the opinon is not "law of the case" in the precise case in which it was decided and where the cour and the pares are the same. Moreover, the Libby Claimants' contention that there are different paries is a red herrng. Whle it is tre that the Libby Claimants

have chosen to pursue a different nomial defendant, the partes involved in seeking and contesting the
expansion of the Injunction (i.e., the Libby Claimants and Grace) have participated each time this issue has
come up relating to the varous Montaa actions brought by the Libby Claimants against, MCC, Montana
Vermculite Company, the state of

Montana, and, now, BNSF.

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The Libby Claimants cite three cases in an effort to undermine Gerard's binding effect.
Two of those cases, In re Federal-Mogul and In re Combustion Engineering simply do not apply
to this case, because in neither Federal Mogul nor Combustion Engineering was there a
contractual indemnification obligation between the third party and the debtor. And, the third

case cited by the Libby Claimants, Pacor, Inc. v. Higgins, 743 F.2d 984 (3rd Cir. 1984), is
perfectly consistent with Gerard.

fu Pacor, the Third Circuit found that the Bankptcy Court did not have "related to"
jursdiction where there was a potential common law indemnification claim against the Debtor
but where there was neither a contractual indemnity

between the third part and the debtor nor

was there a proof of claim fied against the debtor by the third part. See Pacor, 743 F.2d at

995-96 Indeed, the Pacor cour expressly addressed the situation where there is a contractual
right of indemnification. Id. at 995. Under that scenaro, the court acknowledged that because
an adverse judgment would necessarily affect the estate, the exercise of related-to jurisdiction

would be appropriate. /d. ("(I)t is clear that the action between the landlord and MacMilan
could and would affect the estate in banptcy. By virte of the indemnification agreement ... a
judgment in favor of the landlord on the guarantee action would automatically result in

indemnification liabilty against Brentano's."). By admitting that the exercise of related-to
jurisdiction is proper where there is are contractual indemnifications at issue, Pacor is in

complete harmony with Gerard and does not create substantial grounds for a difference of
opinion.
2. There Is No Disagreement Over The Law Controllng The Court's
Decision To Issue The Injunction.

With respect to the issue of whether the Bankptcy Court's expansion of the fujunction
to include the Montana Actions was appropriate, the Libby Claimants do not contend that the

14
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Court applied the incorrect legal standard or that there is any confusion or difference of opinion

as to the proper standard to be applied. Rather, the Libby Claimants argue that "the Banptcy
Court wrongly concluded that the requirements for the issuance of an injunction were

established." Libby Claimants' Br. at 22. Thus, the Libby Claimants simply argue that the
Banptcy Court incorrectly applied the standard for the issuance of a § 105 injunction to the
facts of this case. However, it is Well established that errors in the application of the law to the

facts of a case do not constitute "( s )ubstantial grounds for difference of opinion." See Berhend v.
Com

cast Corp., 2007 WL 2702347, *2 (B.n. Pa. Sept. 11, 2007) (holding that "(s)ubstatial

grounds for difference of opinion (on a controllng question of law) exist when there is genuine
doubt or conflicting precedent as to the correct legal standard") (quoting Glaberson v. Comcast
Corp., 2006 WL 3762028, *13 (E.D. Pa. Dec. 19,2006); Premick v. Dick's Sporting Goods, Inc.,

2007 WL 588992, *2 w.n. Pa. Feb. 20, 2007) ("Distrct courts in this circuit have held that
although a question appears to be a controllng question of law, questions about a court's

application of facts of the case to established legal standards are not controlling questions of
law for puiposes of

section 1292(b).") (emphasis added).

B. The Immediate Appeal Of The Injunction Wil Not Materially Advance The

Ultimate Termination Of Grace's Bankruptcy.

Nor have the Libby Claimants established that the immediate appeal of the injunction
wil materially advance the ultimate termination of the Bankptcy. See In re Edison Bros.
Stores, 1996 WL 363806, *3. Here, it is clear that allowing this appeal to go forward would

not materially advance the termination of the banptcy case. To the contrar, the Banptcy

Cour found that allowing the Montaa Actions to proceed "would fuher delay the
reorganization process and implicate estate property." Mem. Opinion at 30. This would
paricularly prejudice Grace at this critical juncture as it endeavors to formulate a consensual

15
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plan of reorganization with an eye towards emerging from Chapter I I in the first quarter of
2009. The Libby Claimants do not even attempt to argue otherwse -_ nor could they. And their

failure to establish that the granting of the appeal wil foster the conclusion of the bankptcy is
dispositive of the issue before the Court.
C. No Exceptional Circumstances Exist That Warrant An Immediate AppeaL.

As there is no substantial grounds for differ~nce of opinion as to a controllng question of
law and the immediate appeal of the issue wil not materially advance the termination of the

banptcy, the Court need go no further in denying the Libby Claimants' request for leave.

However, the Appeal also should be denied under 28 U.S.C. § 158 because the Libby Claimants
have not -- and cannot -- demonstrate that exceptional circumstances exist justifying an appeal of

the fujunction Order. The Libby Claimants argue that there are two exceptional circumstances
that warrant interlocutory review: I) that the Distrct Court failed to follow Third Circuit

precedent in finding that there was "related to" jurisdiction sufficient to justify extending the

preliminary injunction; and (2) that the Court erred in deciding the issue on its merits. Libby

Claimants' Br. at 12. However, it is clear that a mere allegation of error canot constitute an
exceptional circumstace sufficient to warrant interlocutory review -- otherwise, each and every

decision of a lower court that a party disagreed with would be susceptible to appellate review.

See Vaughn v. Flowserve Corp., 2006 WL 3231417, *2 (D. N.J. Nov. 8,2006) ("A motion for
certification should not be grted merely because a par disagrees with the ruling of

the (lower

cour) judge.") (quoting Max Daetwler Corp. v. Meyer, 575 F. Supp. 280, 282 (B.D. Pa.
1983)).16

16 The Libby Claimants' arguent that "an appeal from an order grting a prelimiar injunction inherently represents an exceptional circumstace" (Libby Claimants' Br. at 12) is baseless. Rather than cite any authority
(Continued. ..)

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The Libby Claimants concede that the only real prejudice they suffer for the granting of

the injunction is a delay in their prosecution of claims against BNSF. But, they also insist that
they wil be able to pursue those claims once Grace's plan takes effect. See Libby Claimants'

Br. at 25-26. Furher, they have not established any prejudice from any delay that rises to the
level of "exceptional circumstances." fudeed, every injunction or stay results in delay for the
pary subject to the injunction or the stay and the fact of such delay is not sufficient to give rise
to a right of appeaL.

This argument simply underscores the fact that -- at this junctue, with the conclusion of

Grace's Chapter 11 cases only months away -- there is no material prejudice to the Libby
Claimants that would result from the denial of leave to appeaL. Given the recent developments
that have set the stage for Grace to promptly move forward towards plan confirmation and

emerge from Chapter 11, the circumstances here present even less urgency than the last two
times the Libby Claimants unsuccessfully sought leave to appeaL. Moreover, the continued

litigation of this issue can only serve to undermine the development of a consensual plan of
reorganization.

CONCLUSION

Under the circumstances presented, an interlocutory appeal of the Court's decision to
grant the injunction is both unnecessary and improper, paricularly at this stage òf the bankptcy

proceedings. There are no exceptional circumstances warting such appellate review, nor are
there substantial grounds for a difference of opinion related to controlling questions of law. And,

lastly, allowing the Libby Claimants' appeal will not serve to expedite the conclusion of the
for this novel proposition, the Libby Claimants cite to their own erroneous arguent that such orders are
appelable to this Cour as of right. Although the Libby Claimants would like injunctions to be automatically
appealable to the district cour, that simply is not what Section I

58(a) provides

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banptcy litigation but, rather, would further delay it. Accordingly, the Debtors respectfully
request that this Cour decline to grant the Libby Claimants' leave to appeal this interlocutory
order under 28 U.S.C. § 1

58(a)(3).

Dated: May 8, 2008

KIAN & ELLIS LLP
David M. Bernick, P.C. Janet S. Baer Salvatore F. Bianca 200 East Randolph Drive Chicago, Ilinois 60601
Telephone: (312) 861-2000

Facsimile: (312) 861-2200
- and -

PACHULSKI STANG ZIEHL & JONES LLP

La r Davis Jones (Bar No. 2436)

Ja s E. O'Neil (Bar No. 4042) Timothy P. Cairns (Bar No. 4228) Kathleen P. Makowski (Bar No. 3648) 919 North Market Street, 17th Floor P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courer

19801) Telephone: (302) 652-4100

Facsimile: (302) 652-4400
Co-Counsel for the Debtors and Debtors in Possession

18
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IN THE UNTED STATES BANUPTCY COURT
FOR THE DISTRICT OF DELAWAR

In re:
W. R. GRACE & CO., et il

Debtors.

) ) ) ) )
)

Chapter 1 1

Case No. 01 - 1139 (JK)
(Jointly Administered)

W. R. GRACE & CO., et aI.,
Plaintiffs,
v.

)
) )
Adversary

No. A-01-771

) ) )
)

MARGARET CHARI, et aI.,
AN JOHN DOES 1 -1000,
Defendants.

) ) ) )

CERTIFICATE OF SERVICE
I, James E. O'Neil, hereby certify that on the Sth day of April, 200S, I caused a

copy ofthe following documents to be served on theindividuals on the attached service list in
the maner indicated:

(CORRCTED) OPPOSITION OF W. R. GRACE & CO. TO LIBBY CLAINTS' MOTION FOR LEAVE TO APPEAL ORDER ENJOINING

ACTIONS AGAIST BNSF.

-b

91100-001\DOCS_DE:137266.1

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w. R. Grace 2002 Service List Case No. 01-1139 (JK)
Doc. No. 22588 037 - Hand Delivery 004 - Foreign First Class Mail 206 - First Class Mail

Hand Delivery )

Willam H. Sudell, Jr., Esquie Eric D. Schwar, Esquire Morrs, Nichols Arsht & Tunell
1201 N. Market Street P.O. Box 1347
Wilmgton, DE 19899

(Counsel to Debtors and Debtors in Possession) Laura Davis Jones, Esquire James E. O'Neil, Esquire Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor

Hand Delivery

(Counsel to The Chase Manattan Ban)
Mark D. Collins, Esquire Deborah E. Spivack, Esquire
Richards, Layton & Finger, P.A.

P.O. Box 8705
Wilmngton, DE 19899-8705

Hand Delivery (Copy Service)
Parcels, Inc.

One Rodney Square P.O. Box 551 Wilmington, DE 19899
Hand Delivery

Vito i. DiMaio 10th & King Streets Wilmington, DE 19801
Hand Delivery (Counsel to DIP Lender) Steven M. Yoder, Esquire
The Bayard Fir

(Counsel to Marland Casualty) Jeffrey C. Wisler, Esquire Michelle McMahon, Esquire
Connolly Bove Lodge & Hutz LLP 1220 Market Street, ioth Floor

Wilmington, DE 19899
Hand Delivery (Counsel to Ingersoll-Rand Fluid Products and State of Montana) Francis A. Monaco, Jr., Esquire Womble Carlye Sandridge & Rice LLC
222 Delaware Avenue, 15th Floor

222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899
Hand Delivery (Counsel to Asbestos PI Committee) Marla Eskin, Esquire

Wilmington, DE 19801
Hand Delivery
(Counsel to Asbestos PD Committee)

Mark Hudord, Esquire Campbell & Levine, LLC 800 N. King Street #300 Wilmington, DE 19801

Michael B. Joseph, Esquire Theodore J. Tacconell, Esquire
Ferr & Joseph, P.A.

824 Market Street, Suite 904 P.O. Box 1351 Wilmington, DE 19899

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Hand Delivery ) Mark S. Chehi Skadden, Ars, Slate, Meagher & Flom LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899-0636
Hand Delivery

Hand Delivery (Counsel for Reaud, Morgan & Quinn, Inc. and Envionmental Litigation Group, PC)
Kathleen Miler, Esquire

)
Joseph Grey, Esquire

Smith, Katzenstein & Furlow LLP 800 Delaware A venue, 7th Floor P.O. Box 410 Wilmington, DE 19899
Hand Delivery

Stevens & Lee 1 105 N. Market Street, Suite 700 Wilmington, DE 19801-1270
Hand Delivery (Counsel to Official Committee of
Unsecured Creditors)

(Counsel to Centu Indemnty Company)
Curis Crowther, Esquire

Whte and Willams LLP 824 North Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19801
Hand Delivery (Counsel to ;First Union Leasing) John D. Demmy, Esquire
Stevens & Lee, P.c.

Michael R. Lastowski, Esquire
Duane, Morrs & Heckscher LLP

1 100 Nort Market Street, Suite 1200 Wilmington, DE 19801-1246
Hand

Delivery

) Laurie SeIber Silverstein, Esquire Potter Anderson & Corroon LLP
13 1 3 N. Market Street, 6th Floor

1105 N. Market Street, Suite 700 Wilmington, DE 19801-1270
Hand Delivery (Counsel to Mark Hann and HanMar . Associates, Fireman's Fund Insurance. Co.)
Thomas G. Whalen, Esquire

P.O. Box 951 Wilmington, DE 19899
Hand Delivery (United States Trustee) David Klauder, Esquire . Office of the United States Trustee 844 Kig Street, Suite 23 i 1
Wilnington, DE 19801

Stevens & Lee, P.C. 1 105 N. Market Street, 7th Floor Wilmington, DE 19801
Hand Delivery (Counsel to Equity Committee)
Teresa K.D. Curer, Esquire

Klett Rooney Lieber & Schorling
1 000 West Street, Suite 1410

Hand Delivery (Counsel for General Electrc Corporation) Todd C. Schiltz, Esquire Wolf, Block, Schorr and Solis-Cohen LLP Wilmington Trust Center 1100 N. Market Street
Suite 1001

P.O. Box 1397 Wilmington, DE 19899-1397

Wilmington, DE 19801

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Hand Delivery (Counsel to Union Tan Car Company) Rachel B. Mersky, Esquire Monzack and Monaco, P.A.
1201 N. Orange Street, Suite 400

Hand Delivery (Counsel to Prudential and Motley Rice LLC)

Wilmington, DE 19801
Hand Delivery (Counsel to Royal Insurance) Megan N. Harper, Esquire Bifferato, Bifferato & Gentilotti 1308 Delaware Avenue P.O. Box 2165 Wilmington, DE 19899
Hand Delivery (Counsel to The Delaware Division of Revenue)

Laure S. Polleck, Esquire Jaspan Schlesinger Hoffan, LLP
913 N. Market Street
Floor 12
.

Wilmington, DE 19801
Hand Delivery (Counsel for David T. Austem)

John C. Phillps, Jr., Esquire Phillps, Goldman & Spence, P.A. 1200 North Broom Street Wilmngton, DE 19806
Hand Delivery (Counsel to Libby Claimants) Adam G. Landis, Esquire
Kerr K. Mumford, Esquire

Allson E. Reardon
Delaware Division of

Revenue

820 N. French Street
8th Floor
Wilmngton, DE 19801

Landis Rath & Cobb LLP 919 Market Street, Suite 1600 Wilmington, DE 19801
Hand Delivery (Counsel to Brayton Purcell, LLP)

Hand Delivery (Counsel to the Libby Mine Claimants) Steven K. Kortanek, Esquire

Klehr, Harrson, Harvey, Branburg &
Ellers, LLP

Danel K. Hogan, Esquire The Hogan Firm
13 11 Delaware Avenue

919 Market Street, Suite 1000 Wilmington, DE 19801
Hand Delivery
(L.A. Unified School Distrct)

Wilmington, DE 19806
Hand Delivery (Counsel to Allstate Insurance Company) James S. Yoder, Esquire Whte and Wiliams LLP 824 Market Street, Suite 902
Wilmngton, DE 19899-0709

Wiliam F. Taylor, Jr., Esquire McCarer & English, LLP

Mellon Ban Center
919 Market Street, Suite 1800 Wilmington, Delaware 19899

Hand Delivery (Counsel to Everest Reinsurance Company and Mt. McKinley Insurance Company) Brian L. KasprZak, Esquire Marks, O'Neil, O'Brien and Courey, P.C. 913 North Market Street Suite 800 Wilmington, DE 19801

Case 1:08-mc-00090-RLB

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Hand Delivery
(Counsel to Amenca Employers Insurace Co, Employers

Hand Delivery (Counsel to State of Californa, Dept. of
General Svcs)

Commercial Union nIa OneBeacon Amenca Insurance
Co and Unigard Insurce Co)

David P. Primack, Esquire Biddle & Reath LLP 1100 Nort Market Street Suite 1000 Wilmington, DE 19801-1254
Drinker

Tobey M. Daluz, Esquire Leslie C. Heilman, Esquire Ballard Spah Ardrews & Ingersoll, LLP
919 N. Market Street, 12th Floor

Wilmington, DE 19801
Hand Delivery (Counsel to Sealed Air Corporation) Mark S. Chehi, Esquire Skadden, Ars, Slate, Meagher & Flom LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899-0636

Hand Delivery (Counsel to U.S. Fire Insurance Company) Ian Connor Bifferato, Esquire

Joseph K. Kour, Esquire Bifferato, Gentilotti & Biden 1308 Delaware Avenue P.O. Box 2165 Wilmington, DE 19899
Hand Delivery Anderson Memorial Hospital) (Counsel to Chrstopher D. Loizides, Esquire Loizides & Associates

Foreign First Class Mail
Derrck C. Tay
(Canadian Counsel to Debtor)

Legal Ars Bldg. 1225 King Street, Suite 800
Wilmgotn, DE 19801

Hand Delivery (Counsel to PacifiCorp) Richard S. Cobb, Esquire Megan N. Harer, Esquire Landis Rath & Cobb LLP 919 Market Street, Suite 600 Wilmington, DE 19801
Hand Delivery (Counsel to CNA Financial Corporation)
Carella P. Keener, Esquire

Ogilvy Renault LLP Suite 3800 Royal Ban Plaza, South Tower 200 Bay Street P.O. Box 84 Toronto, Ontaro M5J 2Z4 CANADA

Foreign First Class Mail
(Counsel to Canadian ZAI Claimants) Yves Lauzon, Esquire Michel Belanger, Esquire LAUZON BELANGER, INC..
286 Saint-Paul West, Suite 100

Montréal (Québec) H2Y 2A3

Foreign First Class Mail
(Counsel to Her Majesty the Queen in Right of Canada as represented by The Attorney General of Canada) Jacqueline Dais-Visca, Senior Counsel Business Law Section The Exchange Tower King Street West 3400

Rosenthal, Monhait, Gross & Goddess, P.A. 919 Market Street, Suite 1401 P.O. Box 1070 Wilmington, DE 19899-1070

C.P.36
Toronto, Ontario M5X lK6

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Foreign First Class Man
) Gordon A. Davies Chief Legal Offcer Nortel 195 The West Mall Toronto, Ontaro

First Class Mail
(Offcial Committee of

Unsecured

Creditors)
Lewis Krger, Esquire

Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038-4982

M9C 5Kl

First Class Mail
(Official Committee of

First Class Mail
(Counsel to Zonolite Attic Litigation Plaintiffs and Gama Holding, NY)

Property Damage

Claimants)
Scott L. Baena, Esquire

Wiliam D. Sullvan, Esquire
4 E. 8th Street, Suite 400 Wilmington, DE 19801

First Class Mail
(Counsel to Debtor)
David B. Bernck, P.C.

Bilzin Sumberg Dunn Baena Price & Axelrod LLP First Union Financial Center 200 South Biscayne Blvd, Suite 2500 Miami, FL 33131

First Class Mail
Committee) (Counsel to Equity Philip Bentley, Esquire

Janet S. Baer, Esquire

Kikland & Ells
200 East Randolph Drive
Chicago, IL 60601

Doug Manal
Kramer Levin Naftalis &

Franel LLP

1 1 77 Avenue of the Americas

First Class Mail
(W. R. Grace & Co.)

New York, NY 10036

Mark Shelnitz W.R. Grace and Co. 7500 Grace Drive Columbia, MD 21044

First Class Mail (Counsel to Sealed Air Corporation)
D. J. Baker, Esquire Skadden, Ars, Slate, Meagher & Flom LLP Four Times Square

First Class Mail
(Counsel to Asbestos PI Committee) Elihu Inselbuch, Esquire Rita Tobin, Esquire
Caplin & Drysdale, Charered 375 Park Avenue, 35th Floor New York, NY 10152-3500

New York,NY 10036
First Class Mail
) Todd Meyers, Esquire

Kilpatrick Stockton
1 100 Peachtree Street

Suite 2800

Atlanta, GA 30309

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First Class Man ) Reorganzation
Offce of

First Class Mail
) Jon L. Heberling, Esquire McGarey, Heberling, Sullivan & McGarey PC 745 South Main Street Kalispel, MT 59901

Securties & Exchange Commssion

Suite 1000
3475 Lenox Road, N.E.

Atlanta, GA 30326-1232

First Class Mail
) Internal Revenue Service
Att: Insolvency
31 Hopkins Plaza, Room 1 150

First Class Mail
(Counsel to DIP Lender) David S. Heller, Esquire Latham & Watkins Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606

Baltimore, MD 21201

First Class Mail
)

Michael A. Berman
Securties & Exchange Commission

First Class Mail
) Charles E. Boulbol, Esquire
26 Broadway, 17th Floor

.Offce of General Counsel-Banptcy 100 F Street, NE Washington, DC 20549

New York, NY 10004

First Class Mail
) Secretar of State

First Class Mail
)

Division of Corporations
Franchise Tax

Ira S. Greene, Esquire Hogan & Harson LLP 875 Third Avenue
New Y ork,NY 10022-6225

P.O. Box 7040 Dover, DE 19903

First Class Mail
) James D. Freeman, Esquire U.S. Deparent of Justice Environmental Enforcement Section 1961 Stout Street
Floor 8

First Class Mail )
James A. Sylvester, Esquire
Intercat, Inc.

2399 Highway 34 #CL

Manasquan, NJ 08736-1500
First

Class Mail

Denver, CO 80294-1961

)

Steven J. Johnson, Esquire Gibson, Dun & Crutcher LLP 1881 Page Mil Road Palo Alto, CA 94304-1125

Case 1:08-mc-00090-RLB

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First Class Mail )
Charlotte Klenke, Esquire Schneider National, Inc. P.O. Box 2545 3101 S. Packerland Green Bay, WI 54306

First Class Mail
(Counsel to Asbestos Claimants) Michael J. Haners, Esquie Silber Pearlman LLP 3102 Oak Lawn Ave., Ste. 400 Dallas, TX 75219-6403

First Class Mail
)

First Class Mail

David S. Rosenbloom, Esquire
Jeffey E. Stone, Esquire

Banptcy Adminstration
IOS Capital, Inc.
1738 Bass Road

)

Lewis S. Rosenbloom, Esquire McDermott, Wil & Emery 227 West Monroe Street Chicago, IL 60606-5096

P.O. Box 13708 Macon, (11\ 31208-3708

First Class Mail
(Attorneys for PPG Industres, Inc.)

First Class Mail
)

Charles L. Fine, Assistant General Counsel Brad Rogers, Esquire Office of the General Counsel Pension Benefit Guaranty Corp l200K. Street, N. W.
Washigton, D.C. 20005-4026

Wiliam M. Aukamp, Esquire Archer & Greiner 300 Delaware Avenue, Suite 1370 Wilmington, DE 19801

First Class Mail
)

First Class Mail
)
Pamela Zily

Alan R. Brayton, Esquire Brayton & Purcell 222 Rush Landing Road Novato, CA 94945

Richard Shinder
Bar Korn
The Blackstone GrouE
345 Park Avenue, 30 Floor
New York, NY

First Class Mail
) Jonathan W. Young Wildman, Harold, Allen & Dixon 225 West Wacker Drive, Suite 3000
Chicago,IL 60606-1229

10154

First Class Mail )
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)

Wiliam H. Patrck Heller, Draper, Hayden, Patrck & Horn,
L.L.C. 650 Poydras Street, Suite 2500 New Orleans, LA 70130-6103

Russell W. Budd Alan B. Rich Baron & Budd, P.C. 3102 Oak Lawn Avenue, P.O. Box 8705 Dallas, TX 75219

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First Class Mail
) Shelby A. Jordan, Esquire
Nathanel Peter Holzer. Esquire

Jordan, Hyden, Womble & Culbreth, P.C. 500 N. Shoreline Blvd., Suite 900 Corpus Chrsti, TX 78471

First Class Mail ) The Gibson Law Firm, PLLC 447 Nortpark Drive Ridgeland, MS 39157

First Class Mail
)
The Mils Corporation

First Class Mail
)

Ontaro Mils LP

Paul M. Baisier, Esquire SEYFARTH SHAW
1545 Peachtree Street

Legal Deparent
225 W. Washington Street Indianapolis, IN 46204-3435

Suite 700

Atlanta, GA 30309

First Class Mail
) T. Kellan Grant Wildman, Harrold, Allen & Dixon 225 West Wacker Drive, Suite 3000 Chicago, IL 60606-1229

First Class Mail
) Bernce Conn, Esquire

Robins, Kaplan, Miler & Ciresi LLP 2049 Centu Park East, Suite 3700 Los Angeles, CA 90067

First Class Mail
)

First Class Mail
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Cindy Schultz Ingersoll-Rand Fluid Products One Aro Center P.O. Box 151 Bryan, OH 43506

Steven R. Schlesinger, Esquire Jaspan Schlesinger Hoffian LLP 300 Garden City Plaza Garden City, NY 11530

First Class Mail
)

First Class Mail
)
Alan Kolod, Esquire

Moses & Singer LLP

Steven J. Kherkher, Esquire Laurence G. Tien, Esquire Wiliams Kherkher Har & Boundas, LLP
8441 Gulf

The Chrsler Building 405 Avenue New York, NY 10174-1299

Freeway, Suite #600

Houston, TX 77017

First Class Mail
)

First Class Mail
)

John P. Dillman, Esquire Linebarger Heard Goggan Blair Graham Peña & Sampson, LLP P.O. Box 3064 Houston, TX 77253-3064

Delta Chemical Corporation 2601 Canery Avenue Baltimore, MD 21226-1595

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First Class Mail
) Steven T. Hoort, Esquire Ropes & Gray One International Place Boston, MA 02110-2624

First Class Mail
) Katherine Whte Sealed Air Corporation 200 Riverfont Boulevard
Elmwood Park, NJ 07407

First Class Mail )
Peter Van N. Lockwood, Esquire Julie W. Davis, Esquire Trevor W. Swett, ill, Esquire Nathan D. Finch, Esquire Caplin & Drysdale, Charered
One Thomas Circle, N. W.

First Class Mail )
Joseph T. Kremer, Esquire
Lipsiptz, Green, Fahnger, Roll, Salisbury & Cambria, LLP 42 Delaware Avenue, Suite 300

Buffalo, NY 14202

Washington, DC 20005

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)

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) Peter A. Chapman 572 Fernwood Lane

Fairless Hils, PA 19030

Paul D. Henderson, Esquire Paul D. Henderson, P.C. 712 Division Avenue Orange, TX 77630

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) Paul M. Matheny
The Law Offices of

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Peter G. Angelos, P .C.

Robert Jacobs, Esquire Mara Rosoff Eskin
Jacobs & Cruplar, P.A.

5905 Hadord Rd. Baltimore, MD 21214

2 East 7th Street

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) Michael J. Urbis Jordan, Hyden, Womble & Culbreth, P.C.
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P.O. Box 1271 Wilmington, DE 19899

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Brownsvile, TX 78520

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Elizabeth S. Kardos, Esquire Gibbons P.C. One Gateway Center Newark, NJ 07102-5310

Mar A. Coventr
Sealed Air Corporation
200 Riverfont Blvd.

)

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Elmwood Park, NJ 07407-1033

Thomas J. Noonan, Jr. c/o R& S Liquidation Company 5 Lyons Mall PMB #530 Basking Ridge, NJ 07920-1928

Case 1:08-mc-00090-RLB

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First Class Mail (Counel to Public Service Electric and Gas
Company)

Wiliam E. Frese, Esquire
Att: Sheree L. Kelly, Esquie

First Class Mail (Counsel to Weathedord U.S. Inc., and
Weathedord International Inc.)

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Peter S. Goodman, Esquire Andrews & Kurh LLP
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York, NY 10017

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Unsecured Creditors) Wiliam S. Katchen, Esquire Duane Morrs LLP
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First Class Mail
)

Jonathan H. Alden, Esquire Assistant General Counsel 3900 Commonwealth Boulevard, MS 35

Suite 1200 Newark, NJ 07102-3889

Tallahassee, FL 32399-3000 .
First Class Mail
)

First Class Mail
(Tennessee Departent of

Conservation - Superfud)
Paul G. Sumers, Esquire
P.O. Box 20207

Environment and

TN Attorney General's Offce, Ban. Unit

Nashvile, TN 37202-0207

State Library of Ohio c/o Michelle T. Sutter Revenue Recovery Office of the Attorney General 150 East Gay Street, 23rdFloor Columbus, OR 43215

First Class Mail (Counsel to numerous asbestos claimants)
Scott Wert, Esquire

First Class Mail
)

Rosa Dominy

Foster & Sear, LLP 524 E. Lamar Blvd., Ste 200 Arlington, TX 76011

Banptcy Administration
IOS Capital, Inc.
1738 Bass Road

First Class Mail (Counsel to Berr & Berr)
C. Randall Bupp, Esquire

P.O. Box 13708 11acon, GA 31208-3708

First Class Mail
)
Greif, Inc.

Bardell, Straw & Cavin LLP 2000 Crow Canyon Place Suite 330 San Ramon, CA 94583

Attn: Credit Deparent 366 Greif Parkway
Delaware,OH 43015

First Class Mail
)
Anton Volovsek

P.O. Box 99
Kooskia, il 83539-0099

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 12 of 24

First Class Mail
(Counsel to SAP America, Inc.)
Stephane Nolan Deviney

First Class Mail
) Russell W. Savory Gotten, Wilson & Savory, PLLC
88 Union Avenue, 14th Floor

Brown & Connery, LLP 360 Haddon Avenue P.O. Box 539 Westmont, NJ 08108

Memphis, TN 38103

First Class Man
Margaret Ar Nolan, County Solicitor Camela Chapman, Senior Assistant County Solicitor Howard County Offce of Law George Howard Building
3430 Courhouse Drive, 3rd Floor

First Class Mail
) Credit Manager
Belz Enterprises

)

100 Peabody Place, Suite 1400

Memphis, TN 38103

First Class Mail
)

Ellcott City, MD 21043

First Class Mail
)
Dance Sims

James P. Ruggeri Scott A. ShaH Hogan & Haron L.L.P.
555 Thrteenth Street,.N. W.

P.O. Box 66658 Baton Rouge, LA 70896

Washington, D.C. 20004-1109

First Class Mail
)

First Class Mail
) M. Diane Jasinski, Esquire Michael D. Hess
Corporation CoUnsel of the City of

Danel H. Slate, Esquire Reed LLP 350 South Grand Avenue Los Angeles, CA 90071-3442
Hughes Hubbard &

York 100 Church Street, Room 6-127 New York, NY 10007

New

First Class Mail
)

First Class Mail
) Janet Napolitano Robert R. Hall Russell W. Savory 1275 West Washington Street Phoenix, AZ 85007-1278

Andrea L. Hazzard, Esquire Hughes Hubbard & Reed LLP One Battery Park Plaza New York, NY 10004-1482

First Class Mail
)

Authur Stein, Esquire 1041 W. Lacey Road P.O. Box 1070
Forked River, NJ 08731-6070

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 13 of 24

First Class Mail
) Robert H. Rosenbaum, Esquire M. Evan Meyers, Esquire Meyers, Rodbell & Rosenbaum, P.A. Berkshire Building 6801 Kenilwort Avenue, Suite 400 Riverdale, MD 20737-1385

First Class Mail

Bar Haran
Treasurer - Tax Collector
Att: Elizabeth Molina

)

1600 Pacific Highway, Room 162 San Diego, CA 92101

First Class Mail
) Colin D. Moore Provost & Umphrey Law Firm, L.L.P. 490 Park Street Beaumont, TX 77701

First Class Mail
)

David Aelvoet, Esquire Linebarger Goggan Blair Graham Pena & Sampson, LLP Travis Park Plaza Building 711 Navaro, Suite 300 San Antonio, TX 78205

First Class Mail
).

First Class Mail
)
Robert Cimino, Esquire

Anne Mare P. Kelley, Esquire
Dilwort Paxson, LLP
Libert View - Suite 700

Suffolk County Attorney
Attn: Diane Leonardo Beckman, Asst.

457 Haddonfield Road P.O. Box 2570
Cherr Hil, NJ 08034

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)

County H. Lee Dennison Building 1 00 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788-0099

Kevin Jares Deputy Attorney General 1515 Clay Street, 20th Floor

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(Counsel to Toyota Motor Credit) Robert T. Aulgur, Jr., Esquire P.O. Box 617 Odessa, DE 19730

Oakland, CA 94612-1413

First Class Mail
) Dorine V ork, Esquire Stibbe, P.C. 350 Park Avenue

First Class Mail
(Counsel to Dow Chemical Company, Hampshire Chemical Corporation and Union
Carbide Corporation)

New York, NY 10022

Kathleen Maxwell
Legal Deparment

First Class Mail )
Suexirda Prayaga 7365 MacLeod Lane Ofallon, MO 63366

The Dow Chemical Company 2030 Dow Center/Office 732 Midland, MI 48674

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 14 of 24

First Class Mail
)

Ane Mare P. Kelley, Esquire
Dilworth Paxson, LLP Liberty View - Suite 700 457 Haddonfeld Road
Cherr Hil, NJ 08002

First Class Man
) E. Katherine Wells, Esquire
South Carolina Deparent of

Health and

First Class Mail
(Counsel to General Electrc Capital

Envionmental Control 2600 Bull Street Columbia, SC 29201-1708

Corporation) Ronald S. Beacher, Esquire Pitney, Hardin, Kipp & Szuch LLP 7 Times Square New York, NY 10036-6524

First Class Mail
)
James M. Garer, Esquire

First Class Mail
) Attn: Diane Stewar Peoples First Community Ban P.O. Box 59950

Sher Garer Cahll Richter Klein & Hilbert, L.L.C. 909 Poydras Street Suite 2800 New Orleans, LA 70112-1033

First Class Mail
)

~anama City, FL 32412-0950
First

Wiliam H. Johnson, Esquire Nodolk Southern Corporation
Law Deparent Thee Commercial Place

Class Mail

)
Gina Baker Hantel, Esquire

Norfolk, VA 23510-9242

Attorney General Offce

Banptcy Division
State of Tennessee 425 5th Avenue North, Floor 2

First Class Mail (Counel to Wells Fargo Ban Minnesota,
National Association)
Pilsbur Winthrop LLP

Nashvile, TN 37243
First Class Mail
-)
Jeffey L. Glatzer, Esquire

1540 Broadway #9 New York, NY 10036-4039
First

Class Mail

Anderson, Kill & Olick, P.C. 1251 Avenue ofthe Americas New York, NY 10020-1182

(Counsel to Wells Fargo Ban Minnesota,
National Association)

Craig Barbarosh, Esquire
Pilsbur Winthrop LLP

First Class Mail
)
Att: Ted Weschler

650 Town Center Drive, Suite 550 Costa Mesa, CA 92626-7122

Penisula Capital Advisors, L.L.c. 404 East Main Street
Second Floor

Charlottesvile, VA 22902

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 15 of 24

First Class Mail

Distrct)

(Counsel to Aldine Independent School

First Class Man
(Counsel to The Texas Comptroller of Public Accounts)

Aldine Independent School Distrct

Jonathan C. Hantke, Esquire Pamela H. Walters, Esquire

Mark Browng, Esquire
Assistant Attorney General
c/o Sherr K. Simpson, Legal Assistant

14910 Aldine-Westfield Road

IIouston, T)( 77032

First Class Mail
) DAP Products, Inc. c/o Julien A. Hecht, Esquire 2400 Boston Street, Suite 200 Baltimore, MD 21224

Office ofthe Attorney General Banptcy & Collections Division P.O. Box 12548 Austin, TX 78711-2548

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(Counsel to Fireman's Fund Insurance Company)
Leonard P. Goldberger, Esquire

First Class Mail )
Steven B. Flancher, Esquire

Stevens & Lee, P.C. 1818 Market Street, 29th Floor

Philadelphia, PAl 9103-1702

Assistant Attorney General Deparent of Attorney General Revenue and Collections Division P.O. Box 30754 Lansing, MI 48909

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(Comptroller of of Public Accounts of

First Class Mail
(Counsel to Asbestos Claimants) Deirdre Woulfe Pacheco, Esquire Wi lentz, Goldman & Spitzer 90 Woodbridge Center Drive P.O. Box 10 Woodbridge, NJ 07095

Texas) Kay D. Brock, Esquie Bankptcy & Collections Division P.O. Box 12548 Austin, TX 78711-2548

the State

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(Counsel to Anderson Memorial Hospital) Daniel A. Speights, Esquire Speights & Runyan 200 Jackson Avenue, East P.O. Box 685 Hampton, SC 29924

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(Counsel to Occidental Permian Ltd.) John W. Havins, Esquire IIavins & Associates PC 1001 McKinney Street, Suite 500 Houston, TX 77002-6418

First Class Mail
) General Motors Acceptance Corporation P.O. Box 5055 Troy, MI 48007-5055

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 16 of 24

First Class Mail
) Donna J. Petrone, Esquire ExxonMobil Chemical Company

First Class Mail (Zonolite Attic Litigation Plaintiffs)
Robert M. Fishman, Esquire

Law Deparent - Banptcy
13501 KatyFreeway, Room Wl-562 IIouston, TJ( 77079-1398

First Class Mail
(Counsel to Potah Corp.)

Shaw Gussis Domanskis Fishman & Glantz 321 N. Clark Street Suite 800 Chicago, llinois 60610

David W. Wirt, Esquire Winston & Strawn 35 West Wacker Drive
Chicago, IL 60601

First Class Mail
(Counsel for Reaud, Morgan & Quinn, Inc. and Environmental Litigation Group, PC) Sander L. Esserman, Esquire Robert T. Brousseau, Esquire Van J. Hooker, Esquire
Stutzan Bromberg, Esserman & Plifka PC

First Class Mail ) Edward H. Tillnghast, III, Esquire Sheppard, Mulln, Richter & Hampton LLP Twenty-fourh Floor, 30 Rockefeller Plaza New York, NY 10112

First Class Mail
(Counsel to Marco Barbanti)
Darell W. Scott

The Scott Law Group 926 W. Sprague Ave., Suite 583
Spokane, VV 1\ 99201

2323 Bryan Street, Suite 2200 Dallas, TX 75201

First Class Mail
(Mssour Deparment of Missour Deparent of

First Class Mail
(Counsel to Huntsman Corporation)

Randall A. Rios
Floyd, Isgu, Rios & Wahrlich, P.C.

Banptcy Unit Gar L. Barar

Revenue) Revenue

700 Louisiana, Suite 4600 Houston, TX 77002

PO Box 475 Jefferson City, MO 65105-0475

First Class Mail
(Zonolite Attic Litigation Plaintiffs)
Elizabeth J. Cabraer, Esquire

First Class Mail
(peters, Smith & Company)
Mr. Charles C. Trascher il, Esquire

Lieff Cabraser, Heiman & Bernstein, LLP
Embacadero Center West, 30th Floor

Snellngs, Breard, Sartor, Inabnett &

275 Battery Street . San Francisco, CA 94111

Trascher, LLP PO Box 2055
Monroe, L1\ 71207

First Class Man
(Zonolite Attic Litigation Plaintiffs) Thomas M. Sobol, Esquire Hagens Berman LLP One Main Street, 4th Floor Cambridge, Massachusetts 02142

First Class Mail
(The Baupost Group LLC)

Gar M. Becker, Esquire Kramer Levi Naftalis & Franel LLP 1177 Avenue ofthe Americas New York, NY 10036

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 17 of 24

First Class Mail
(Attorney General ofP A(Commonwealth of Revenue) Chrstopher R. Momjian Senior Deputy Attorney General I.D. No. 057482
PA, Dept. of

First Class Mail
) Michael Selig
Westover Investments, L.L.C.

Offce of Attorney General

21 S. 12th Street, 3rd. Floor

555 Old Gar Road Charlottesvile, VA 22901

Philadelphia, PA 19107-3603

First Class Mail
(Hearside Residential Corp.) Allan H. Ickowitz, Esquire Nossaman, Guthner, Knox & Ellott, LLP
445 South Figueroa Street, 31 st Floor
Los Angeles,CA 90071

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Denise AKuh
Office of Attorney General 21 S. 12th Street, 3rd Floor Philadelphia, PA 19107-3603

)

First Class Mail
(Georgia Deparent of

First Class Mail
(Snack, Inc.) Gibson, Dun & Crutcher LLP
200 Park Avenue

Revenue )

New York, NY 10166

Oscar B. Fears, III Office ofthe Attorney General 40 Capitol Square, SW Atlanta, GA 30334

First Class Mail
(Snack, Inc.) Vahe Melkonian Newco Management Company, LLC
6320 Canoga Avenue, Suite 1430

First Class Mail
)

Woodland Hils, CA 91367

Philip J. Ward Victoria Radd Rollns Wiliams & Connolly LLP 725 Twelfth Street NW Washington, DC 20005

First Class Mail (W.C. Baker, E.E. Jaques, RH. Miler, M.R.
Fisher, S.R. Ormsbee, M. Rea and the Fisher Trust) Richard B. Specter, Esquire Corbett, Steelman & Specter 18200 Von Karan Avenue, Suite 900

First Class Mail
)

Margaret A Holland Deputy Attorney General New Jersey Attorney General's Offce Division of Law
RJ. Hughes Justice Complex

Irine, CA 92612
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(Counsel to AON Consulting, Inc.)
Bar D. Kleban, Esquire

P.O. Box 106 Trenton, NJ 08625

Eckert Seamans Cherin & Mellott, LLC Two Liberty Place
50 South 16th Street, 22nd Floor

Philadelphia, P A 19102

Case 1:08-mc-00090-RLB

Document 7-2

Filed 05/16/2008

Page 18 of 24

First Class Mail
) Rachel Jeane Lehr

First Class Mail
(Counsel to Kaneb Pipe Line Operating
Parership LP and Support Terminal

Deputy Attorney General Office of the Attorney General
RJ.Hughes Justice Complex

Services, Inc.)
Gerald G. Pecht, Esquire

P.O. Box 093 Trenton, NJ 08625

Fulbright & Jaworski, LLP

1301 McKiey, Suite 5100
Houston, TX 7701