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

Case 1 :05-cv-00041-JHB Document 22 Filed 06/O9/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re:
FEDERAL MOGUL ET AL.,
Debtors.
COOPER INDUSTRIES,
Appellant,
v. CIVIL ACTION NO. 05-41 JHR
Bankruptcy Case 01-10578
FEDERAL MOGUL GLOBAL ET AL.,
Appellees.
APPELLANT COOPER INDUSTRIES, LLC'S MOTION FOR
PROCEDURAL ORDER AUTHORIZING THE FILING OF
SUPPLEMENTAL BRIEF CONCERNING
BANKRUPTCY CODE SECTION 509jb)j2)
Appellant Cooper Industries, LLC (successor by merger to Cooper Industries, Inc.)
("Cooper") hereby submits its motion to file the attached Supplemental Brief of Cooper
Industries, LLC Concerning Bankruptcy Code Section 509(b)(2) (the "Supplemental Brief"). In
support hereof, Cooper states as follows:
l. At the oral argument held with respect to this appeal on June 6, 2005, the appellee
debtors (the "Appellees") in this case based nearly the entirety of its argument against Cooper's
right to subrogate itself to the asbestos tort plaintiffs, through Pneumo Abex Corporation
("Pneumo"), on an entirely new theory. ln particular. the Appellees claimed that section
509(b)(2) ofthe Bankruptcy Code precluded Pneumo (through whom Cooper is claiming rights)
from subrogating itself to the rights of the asbestos ton plaintiffs. The Appellees had never
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Case 1:05-cv-00041-JHR Document 22 Filed 06/O9/2005 Page 2 of 3
raised this theory in the Bankruptcy Court, or in the briefs filed in this Court. Although Cooper
addressed, at the oral argument, why the Appellees' new theory did not apply, that explanation
was necessarily truncated due to the surprise nature of the circumstances in which the new theory
arose.
2. Because the Appellees had not previously raised this theory, this Court could
easily elect not to consider it in this appeal for the reasons Cooper has previously articulated in
Cooper Industries, LLC‘s Motion to Strike Portions of Appellees' Brief That (I) Are Not
Supported By the Appellate Record and/or (Il) Assert Arguments Not Raised in the Bankruptcy
Court Below, which is pending at Docket Number 12. However, if the Court elects to consider
this new theory, it is only fair to allow Cooper to respond to it more fully.
3. Cooper therefore requests the Court's permission to tile the Supplemental Brief, a
copy of which is attached as A. Cooper believes that the Supplemental Brief will benefit
the Court in understanding precisely why section 509(b)(2) of the Bankruptcy Code does not
operate to preclude any of the subrogation rights being asserted.
[Remainder of page intentionally left blank.]
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Case 1:05-cv-00041-JHR Document 22 Filed 06/O9/2005 Page 3 of 3
WHEREFORE, Cooper respectfully requests that the Court (a) enter an order, in
substantially the form annexed hereto as Exhibit Q, authorizing Cooper to tile the Supplemental
Brief annexed hereto as Exhibit A; and (b) grant Cooper such other and further relief to which it
is justly entitled.
DATED; June 9, 2005 Respectfully submitted,
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
if /7T .
Stephe . Miller DE Bar No. 2610)
222 Delaware Avenue
Wilmington, DE 19801
Telephone: (302) 888-6853
Telecopy: (302) 571-1750
Email: smillergaimorrisjamescom
AND
GIBSON, DUNN & CRUTCHER LLP
Michael A. Rosenthal
Aaron G. York
2100 McKinney Avenue, Suite 1 100
Dallas, Texas 75201
Telephone: (214) 698-3100
Telecopyz (214) 698-3400
Email: mrosenthal(cDgibsondunncom
Email: ayorkgaigibsondunncom
Email: jcoffey(u)gibsondunn.com
Attorneys for Cooper Industries, LLC
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