Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1:08-cv-00246-RLB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
IN RE: W. R. Grace & Co.
et at.

R. Grace & Co. et the State of Montana

at.

and

Civil Action No. 08- 246 (RLB)

Appellants
Bankruptcy Case No. 01- 1139
Adversary Case No. 01- 771

Libby Claimants,

Appeal No. 08-

Appellee.

LIBBY CLAIMANTS' EMERGENCY MOTION TO PENDING APPEAL
DISSOLVE STAY

Claimants injured by exposure to

' operations in Lincoln

County, Montana (the " Libby

Claimants

l hereby move this Court to dissolve the stay granted

by the Bankruptcy Court pending the appeal to this Court by the Debtors (collectively, " Grace

and the State of Montana (the " State ) of the Bankruptcy Court' s order denying Grace s request
to enjoin the Libby Claimants ' separate and independent tort claims against the State (the " State
Litigation
) for lack of subject matter

Denial Order

)? The

appeal (the " Stay

3 should be immediately dissolved because the standards for a stay pending
is not

appeal have not been met; specifically, the

likely to prevail on the merits of appeal " and improperly concluded that harm to the State from
1 As identified in the Amended and Restated Verified Statement of Cohn Whitesell & Goldberg LLP and Landis Rath & Cobb LLP Pursuant to Fed. R. Bankr. P. 2019 (Bankr. Case D. I. 17337) filed in the bankruptcy case (Case No. 01- 01139 (JFK)), as it may be amended and restated from time to time.

2 The Denial Order is comprised of the following: Order

Injunction to Include Actions Against the State of Opinion (Adversary Proc. D. I. 419), both entered on April 16 , 2007 and (ii) Order Denying Motions to Reconsider (Adversary Proc. D. I. 484) and Memorandum Opinion (Adversary Proc. D. I. 483), both entered on March 31 , 2008. 3 A copy of the Bankruptcy Court order granting the Stay is attached as Exhibit A (the " Stay Order

' Motion to Expand the I. 420) and

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not granting a stay outweighed the continuing harm to sick and dying Libby
being barred from pursuing the State Litigation. Under the guise
, the

Bankruptcy Court has left in place an injunction of the State Litigation that has already lasted 30

months despite this Court having twice expressed concern over its indefinite duration absent a

determination that Grace is actually entitled to the injunction.
has twice determined that it lacks jurisdiction to enter the injunction , it is long past time for the
stay to be terminated once and for all.
Furthermore , the stay pending appeal obtained by the State is improper

no appeal pending. The Denial Order is an

has joined its request , but has not

, leave to appeal-nor

In the

absence of an appeal , there can be no stay pending appeal.

In support ofthis Motion , the Libby Claimants state:

Back2round
The suffering of the people of Libby, Montana due to asbestos disease from exposure to

Libby asbestos
chronicled.
S Through the Center for

CARD Clinic ) in Libby,

Montana , Dr. Alan C. Whitehouse and Dr. C. Brad Black have diagnosed at least 1 500 patients
with asbestos related disease due to

Montana. 6

200 of these 1

500 patients. 7

Since

CARD Clinic opened in 2000 , more than 65 patients have died of cancer or respiratory failure

4 The standard for granting an interlocutory appeal has not been met.

See Opposition of Libby Claimants to Motion ofW. R. Grace for Leave to Appeal Order Denying Injunction dated April 21 , 2008 (Adversary Proc. D. I. 505). 5 (Adversary Proc. D. I. 417 , p.3. 6( , Ex. C , ~2.
7(

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related to asbestos disease. 8 Most of those deaths have occurred since Grace filed its Chapter
case on April 2 ,

2001. 9

Currently

, and over

100 patients are severely limited , with short life expectancy.
care. 11

lO Most of these require 24 hour

But the devastating disease in Libby, said to be 10 times more deadly than more common
types of asbestosis ,

was not caused by Grace alone. The State also engaged in

injuring the people of Libby.

Orr v. State of

, 106 P. 3d

100 (Mont.
the State had

Montana Supreme Court held that under the state s Industrial Hygiene Act
statutory duties to the public and persons confronted with workplace hazards
11 0 ,

Orr , 106 P. 3d at

~ 40 , and that " the State had discretion to determine what information to gather , but once
. at 1 08

that information was gathered , it had no discretion about whether to distribute it."
25. The

(IJt appears that the record is bereft of any actions taken by the State to
. at 110 , ~ 37.

warn the miners or the Libby townspeople oftheir plight."

Libby Claimants continue to suffer and die , without medical coverage for end stage care.
The Grace Libby Medical Program does not pay for nursing home care or 24- hour home care for

patients with asbestos disease. The affidavits of

hour home

care , and of those who are currently performing it , show enormous suffering and terrible stress.
For the Libby Claimants ,

especially those on oxygen , these services are critical

unable to care for themselves , leaving exhausted family members to bear the burden , with no
help from Grace.

8(

9 Since the Chapter 11 filing, 41 clients of the firm
Montana have died of asbestos related disease. ( 10 ( , Ex. C , ~7.
11 (

, ~7.

, Ex. D , ~4.

12

I. 363 , Ex. A-

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Grace has not only failed to provide the care that the Libby Claimants need and deserve

but has sought to prevent them from obtaining
and other recognized wrongdoers with no special relationship to Grace or its Chapter
Grace s attempt to extend to the State the preliminary injunction that Grace obtained early on its

bankruptcy case to enjoin asbestos-related claims against insurers and other affiliates of Grace

(the " Preliminary Injunction

) goes

Injunction , and far beyond the typical case where the debtor in a mass tort case seeks to enjoin
suits against its insurers

Rather ,

in direct

contradiction to the consistent teachings of the Third

In re Combustion

Engineering. Inc. , 391 F. 3d 190 (3d Cir. 2004)- Grace seeks to shield a non- debtor party from

on- going litigation that cannot , as a matter of law , have a direct impact on Grace s estate. In

Combustion Engineering and two

, the Third

bankruptcy court did not have jurisdiction to enjoin litigation among non- debtor parties merely

because the defendant claimed a right of

State does here. The

, controlling Third

Circuit precedent in the Denial Order , ruling that " related- to subject matter jurisdiction does not
exist for the purpose of expanding the injunction to include the (State LitigationJ,,,
same reason , the Bankruptcy Court ruled that Grace and the State are
not

13 And for the

likely to succeed on

appeal.14 Yet the Bankruptcy Court granted the stay pending appeal anyway.

I. 419 , 420). , 2007 , 366 B. R. 295 , 302 (Bankr. D. Del. 2007). (In re W. R. Grace & Co.
14 Stay

13

W. R. Grace & Co.

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Procedural Historv

On April 2 , 2001 (the " Petition Date ), Grace filed petitions for relief under Chapter

of the Code. On
Preliminary Injunction.
2001
16 and

, Grace filed an adversary

inter alia

the

lS The Bankruptcy Court entered a temporary restraining order on April
, 2001 entered the Preliminary Injunction sought by Grace.
17 On January

2002 , the Bankruptcy Court entered an order modifying the Preliminary Injunction to expand

its scope to include certain additional affiliates of Grace.

Prior to and after the Petition Date , the Libby Claimants commenced the State Litigation

in the Montana District Courts for Lincoln, Cascade , and Lewis and Clark Counties against the
State.

19 The State Litigation proceeded uninterrupted by and without involvement of Grace until

August 22 ,

2005 , more than four years after

filed a motion2l (the " State Injunction Motion ) to expand the Preliminary Injunction to include

the State Litigation. The Libby
joined in by the PI Committee representing all asbestos personal injury claimants.
On December 19 ,

2005 , the Bankruptcy Court held a

Motion

?4 At the

15

I. 359 , ~ 3.
(rd

16 (
17

18 19

I. 87. I. 363 , p. 5.

20 (

21 Debtors ' Motion to Expand the

22 Opposition of Libby Claimants to Debtors ' Motion to Expand the
Against the State of Montana. (Adversary Proc. D. I. 363.
23 Joinder of the Official

(Adversary Proc. D. I. 359.

Debtors ' Motion to Expand the Preliminary Injunction to Include Actions Against the State of Montana. (Adversary ' Reply in Support of Their Motion to Expand the Proc. D. L 365. ) Grace Preliminary Injunction to Include Actions Against the State of Montana. (Adversary Proc. D. I. 367. 24 (Bankr. Case D. I. 11473.

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State Injunction Motion under advisement.

2s In response

, the State asked the Bankruptcy Court

to " stay the Libby Claimants from taking
Litigation) until the (Bankruptcy) Court renders a decision on (the State Injunction Motion).

The Bankruptcy Court indicated that it
sought the Libby Claimants ' agreement to such a stay
indication of the time period within which the

?7 Asked by the Libby

, the

Bankruptcy Court suggested it could be more than a year.

28 Having previously entered into a

voluntary stay in a separate matter wherein the Bankruptcy Court took ten months to render its
decision
29 the

stay. 30 The Bankruptcy Court then orally entered a stay,

31

written order on January 17 2006.

The Libby Claimants appealed to this Court.

33 The Libby Claimants

Bankruptcy Court' s order was reviewable as a preliminary injunction , regardless of whether it

was denominated as such by the Bankruptcy Court , because it provided for a stay
beyond the time permissible under Fed. R. Civ. P. 65(b).

34 On May 10 2006 , after briefing and

oral argument , this Court determined:

The Court believes , generally, that the conditions necessary for the Court to entertain this interlocutory appeal are not present in this case. However
the Court thinks the indefinite nature of the Bankruptcy Court' s stay order
25 ( 26 (

, p. 199:21.)

27 (
28 (

29 In a similar contested proceeding concerning Grace s attempt to further expand the Preliminary Injunction to cover Montana Vermiculite Company, the Bankruptcy Court asked the Libby Claimants if they would continue a voluntary stay pending its ruling on Grace s motion. The Libby Claimants acceded request. The decision was not rendered until 10 months later. (Adversary Proc. D. I. 298 and 299. 30 (Bankr. Case D. I. 11473 , p.203:131 (

, pp. 200:21-25 , p. 201:7- 11.) , p. 202:15-25.

and 201:1-

, p. 203:8. 32 (Adversary Proc. D. I. 376. 33 (Adversary Proc. D. I. 373 , 378.
34 Brief of

, D. I.

5.

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jurisdiction under 28 U. C. ~ addressing the indefiniteness of the Bankruptcy Court' s stay order. A time
frame in which the Bankruptcy Court

may present an exceptional

, the Court exercises

Debtors ' motion to expand the against the State of Montana would be appropriate in light of the indefinite stay order presently in place. However , the Bankruptcy Court is , in the first instance , best suited to determine that time frame.

R. Grace v. Libby Claimants (In re W. R.

Grace & Co.

, 2006 WL 1313190 ,

*1 (D. Del.

2006). 3S Accordingly, this Court remanded the matter to the Bankruptcy Court so that it could

advise the parties of a specific date on or
Debtors ' motion to expand the preliminary injunction.
The Bankruptcy Court ignored this Court' s directive and never provided the parties with

a date upon which it would decide the State Injunction Motion. More than
Court' s ruling (and 16

ruled in the Denial Order on April 16 , 2007 , that "related- to subject matter jurisdiction does not
exist for the purpose of expanding the injunction to include the (State Litigation).

In response to the Denial Order , on April 26 , 2007 , Grace

36 and the State 37 filed

to reconsider (collectively, the " Motions for Reconsideration
Claimants

). On

, 2007 , the Libby

38 and the PI Committee 39 filed oppositions

May 21 , 2007 , the Bankruptcy Court heard oral argument on the Motions for Reconsideration

35 (Dist. Crt. Case , D. I. 26. 36 Debtors ' Motion to Alter and Amend the Court' s Order Denying Its Request to Expand the Preliminary Injunction to Include Actions Against the State of Montana. (Adversary Proc. D. I. 427.

37 State of Montana s Motion for Reconsideration of Court' s Opinion and Order Denying Debtors ' Motion for Expansion of Preliminary Injunction Entered on April 16 , 2007. (Adversary Proc. D. I. 426. 38 Libby Claimants ' Objection to Motions Filed by Debtors and State of Montana to

Debtors ' Motion to Expand the Preliminary Injunction to Include Actions Against the State of Montana. (Adversary Proc. D. I. 442.
39 Opposition of the Official

' and the State of

Montana s Motions to Reconsider the Court' s Decision Denying a Stay of Litigation Against Montana. (Adversary Proc. D. I. 443.

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along with yet another motion

BNSF Injunction Motion ) by Grace
' actions

Preliminary Injunction to include the

Company40

("

BNSF"

, the Bankruptcy Court announced that

it would take the matters under advisement and orally entered yet another temporary stay of the
State Litigation pending its rulings.

On July 23 ,

2007 , at a subsequent hearing on issuance

Bankruptcy Court responded to the Libby Claimants ' argument that it lacked jurisdiction to enter

such a stay: " I think it's still
attempt to get an opinion out very promptly. I'm calling this a temporary stay.
the Bankruptcy Court' s
directive , Grace prepared a form of order to

42 Pursuant to

Court' s rulings , which was submitted to the Bankruptcy Court under a certification of counsel on
August 6 , 2007.

43 On August 29

, 2007 , the Bankruptcy Court

Libby Claimants ' actions against the State and BNSF , pending the Bankruptcy Court' s rulings on

the Motions for Reconsideration and the BNSF Injunction Motion.
On August 30 ,

2007 , the Libby Claimants appealed that second stay order to this Court.
s and the

On January 22 , 2008 , this Court

State s Motions to Dismiss the appeal in order to give the Bankruptcy Court additional time to

decide the motions but went on to order that

40 Along

, the Great Northern Railway Company, the Burlington Northern Railroad Company, and The Burlington Northern & Santa Fe Railway Company. 41 (Bankr. Case D. I. 15948 , p. 94:1.) 42 (Id. at p. 97- 98:24- , 1. 43 (Adversary Proc. D. I. 465. 44 (Adversary Proc. D. I. 466. 45 (Adversary Proc. D. I. 467.

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If the Bankruptcy Court has not made a decision on the BNSF Injunction th of April Motion and Debtors ' Motion for
2008 , the parties may refile. consider the issue on the underlying merits.
R. Grace v. Libby Claimants

R. Grace & Co.

, 2008 WL 205310 ,

*3 (D. Del.

2008).
On March 31 ,

2008 , the Bankruptcy Court denied the Motions for Reconsideration on the

same ground as before: the Bankruptcy Court lacks subject matter jurisdiction over the
Litigation.

On April 9 ,

2008 , the State filed a

Stay

Motion ), repeating the arguments it made in its motion for reconsideration. 47 Grace did not join

the Stay Motion and did not file its own motion for a stay
standing to invoke the specter of harm to the
, the State

s motivation in this

matter-to ward off as long as possible the day when it must stand trial in its own
breaching its duties to the people of

crystal clear that the standard for subject matter jurisdiction

party

litigation on the bankruptcy estate , not on the litigation defendant , the Bankruptcy Court ruled
that although the State " is not likely to prevail on the merits of appeal " the Stay was necessary
because of the potential harm

to the State

if it were

without benefit of the Debtors as a party and without being able to obtain discovery
Debtors because of the automatic stay. "
Stay Order

further continued the 30-month stay of the

continuing harm to the Libby Claimants and despite having ruled twice that it lacked jurisdiction
to do so.

46 (Dist. Crt. Case No. 07- 609 , D. I. 15. 47 State of Montana s Motion for

s Order Denying

Montana s Motion for Reconsideration (Docket No. 486).

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ARGUMENT
The Stay should be

appeal have not been met; specifically, the

is not

likely to prevail on the merits of appeal " and improperly concluded that harm to the State from

not granting a stay outweighed the continuing harm to sick and dying Libby
being barred from pursuing the State Litigation. Furthermore , the Stay is improper because there
is no appeal pending at this time.

The Bankruptcy Court Failed to Correctly Apply the Standard for
Issuance of a Stay Pendin2 ADDeal

Fed. R. Bankr. P. 8005
protect the rights of all

motion for
In re

extraordinary remedy and requires a

Lickman , 301 B. R. 739 (Bankr. M. D. Fla. 2003). The Court of Appeals for the Third Circuit

held that the standard for a stay pending appeal is substantially the same as that for
injunctive relief.

See Republic of Philippines v.

, 949 F. 2d 653 , 658

(3d Cir. 1991). Thus , courts in the Third Circuit and
four- part test for an injunction when

pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.

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see also The Pitt News v.

, 215 F. 3d 354 ,

365 (3d Cir.

preliminary injunctions only if movant
injunction). In this case ,

the State cannot meet any of the factors and , in any event , the Stay

certainly does not meet the requirement of Fed. R. Bankr. P. 8005 that the rights of the Libby
Claimants be protected.
No Likelihood of Success

on ADDeal

In the Stay Order , the Bankruptcy Court concludes that the State is " unlikely to prevail on
the merits on appeal " because the Denial Order

precedent " expressed in

Pacor. Inc. v. Higgins , 743 F.2d 984 (3d Cir. 1984),

In re Federal- Mogul

Global. Inc. 300 F. 3d 368 (3d Cir.

cert denied sub nom Daimler Chrysler Corp. v.
, 537 U.S. 1148
Stay Order at

Official

In re Combustion

Engineering. Inc. , 391 F. 3d 190 (3d Cir. 2004). "

The Bankruptcy Court' s

holding in the Denial Order

jurisdiction to enjoin the
Engineering
is unassailable.

Pacor Federal- Mogul , and

Combustion

Pacor is the seminal case that established the test for determining

whether litigation between third parties meets the bankruptcy jurisdictional test , under 28 U.S.
~ 1334 , of being " related to " a bankruptcy case:

(T)he test for determining
bankruptcy is whether the outcome of that proceeding could conceivably
have any effect on the estate being administered in bankruptcy. .
action is related to

rights ,

liabilities ,

options or freedom

negatively) and in any way impacts upon the handling and administration

of the bankruptcy estate.

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Pacor , 743 F.2d at 994. Applying this standard , the Third Circuit held that related-to jurisdiction
did not

extend to personal injury

debtor parties even though the non-

debtor defendant claimed a right of indemnity or contribution from the debtor:

At best , (the personal injury lawsuit) is a mere precursor to the potential third party claim for debtor) Pacor (debtor) Manville. Yet the would in no way bind Manville , in that it could not determine any rights liabilities , or course of action of the debtor. Since Manville is not a party to the (the personal injury lawsuit), it could not be bound by res judicata or collateral estoppel.
. at 995. Accordingly, the Third Circuit concluded:
there would be no automatic creation of liability

against Manville on

account of a judgment against Pacor. Pacor is not a contractual guarantor
of Manville , nor has Manville agreed to indemnify Pacor ,

and thus a

judgment in the

automatic liability on the
Manville s possible liability would be
party impleader action.

. There would

administration of the estate , until such time as Pacor may choose to pursue its third party claim.
. at 995- 96 (emphasis added). Since the Chapter

automatically

by the litigation , the litigation could
jurisdictional purposes , under 28 U. C. ~ 1334) the debtor
s Chapter 11 case.

Pacor has been expressly approved by the United States Supreme

Celotex Corp.

v. Edwards , 514 U.S. 300 , 308 (1995). And the Third Circuit has confirmed and

Pacor

in two
Federal- Mogul

profile decisions:

Federal- Mogul

and

Combustion

additionally established that under the

Pacor test ,

even an

contractual indemnification against the debtor (in contrast with the common- law indemnification
sought in

Pacor)

was

to
, as in

indemnification could be asserted by the

Pacor , liability of the

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debtor would not
indemnification.

Pacor , 743 F. 2d at 994- 96. And

Combustion Engineering-which
, as in

attempt to enjoin litigation among third parties rather than

Pacor

and

Federal- Mogul

established that a bankruptcy must have jurisdiction over the third- party litigation , under the
Pacor test , in order to enjoin such

, these three major decisions of the Third

Circuit establish a clear test for whether the Bankruptcy Court has jurisdiction to enjoin the State
Litigation.

The Bankruptcy Court correctly held that the State Litigation does not meet this clear
standard for related- to jurisdiction. The State
Montana , not Grace. Any

and would require another lawsuit before they could have an impact on Grace
proceeding. In the contested matter relating
bound by any determination or order in the State Litigation.

s bankruptcy

s claim , Grace will not be

49 In sum , as the Bankruptcy Court

stated in the Denial Order , the position ofthe claims in the State Litigation
Pacor and Federal- Mogul. Before any effect on Debtors can be realized , the State of Montana must first be found
is nearly identical to the claims in

liable in state court
bankruptcy court.

48 Although not pertinent to the State Litigation , in which the State claims a right of indemnity under common law
rather than a contract ,
the debtor asserts no defense the Third Circuit has left unclear the issue of whether an indemnification agreement

to which

would be sufficient to establish related-to jurisdiction. On the one hand , the Court that an uncontested contractual indemnity from the debtor held by the defendant in non- debtor indicated in dictum Pacor , 743 F.2d at 995. On the other hand , the logic and rationale litigation could establish related-to jurisdiction. Combustion Engineering support the opposite result by establishing that a judgment of Pacor Federal- Mogul and against the defendant in the non- debtor litigation would not automatically result in liability of the bankruptcy estate since , as expressly stated by the Third Circuit , the debtor-protected by the automatic stay from any adverse effect debtor defendant' s indemnity claim on any basis of the non-bankruptcy litigation-would be free to Pacor , 743 F. 2d at 995; Federal- Mogul , 282 debtor parties. including issues already determined as between the nonB.R. at 309. 49 Apart from

, Montana law prohibits the State from litigating or establishing percentage of comparative fault) against Grace for either contribution or indemnity during the Plumb v. Fourth Judicial Dist. 27- 703 (1997); See generally Mont. Code Ann. 9 course of the State Litigation. Court , 927 P. 2d 1011 (Mont. 1996) (entry of findings against a non- party violates substantive due process).
a factual basis (i.

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Denial Order at p. 9.

the State (or
matter from

Pacor Federal- Mogul , and

Combustion Engineering .

Indeed ,

no such distinction

exists.

The Bankruptcy Court correctly decided the Denial Order and correctly concluded , in

considering the Stay Motion , that the State is " unlikely to prevail" in its appeal.
the Stay should not have been issued and this Court should dissolve it immediately.

Purvorted Harm to the State
Despite having recognized that

Pacor Federal- Mogul , and

Combustion Engineering

thwarted the State s ability to meet the first evaluating the second factor , the Bankruptcy Court

, in

Pacor is universally cited: the standard for subject matter jurisdiction concerns the effect ofthirdparty litigation

on the bankruptcy estate

not on the litigation defendant.

See Pacor , 743 F. 2d at

994- 96. In balancing the harms , the Bankruptcy Court found that the Stay is appropriate in light
of the potential harm to the State

if it were

without

benefit of the Debtors as a party and without being able to obtain discovery from the

because of the automatic stay.
under

Stay Order at p. 3.

Pacor.

Even if permitted to consider potential harm to the State , the concerns expressed by the
Bankruptcy Court are unfounded. True , as the Bankruptcy Court noted , absent the Stay, the
State would need to proceed with the State Litigation without Grace as a party.

situation faced by every defendant when a codefendant files for bankruptcy. Since the automatic

stay protects only the debtor from needing to defend the lawsuit, the litigation proceeds against

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the non- debtor parties. so In re Desa Holdings Corp. 353 B.R. 419 (Bankr. D. Del. 2006) (" It is a

tenet of bankruptcy law that the

Code apply only to debtors and do not prevent litigation from proceeding against non- debtors.

This happens every day of the week.
even putting aside the obvious point that

, then

Pacor and its progeny do not support the

jurisdiction on that basis , a stay issued by the Bankruptcy Court is most certainly not the answer.

Any such stay would need to be permanent , given that Grace will never be a party to the State

Litigation since the temporary protection afforded by the automatic stay will be
the permanent protection of a discharge from liability once Grace confirms its Chapter
11 U.S. C. ~ 1141(d). But any

because at that point
524(g), which indisputably does not permit an injunction against the State
U.S. C. ~ 524(g)(4)(ii), and
See
, 110

Combustion Engineering , 391 F. 3d at 234 (in an

injunction protecting third parties may issue except as expressly permitted by Section
In sum , staying the State Litigation does not address whatever alleged harm the State would bear
from Grace s absence as a codefendant ,

but merely delays the

Litigation will proceed on that basis.

With respect to the State s ability to obtain discovery from Grace , while the
stay of Section 362(a) contains an extensive list of actions from which the bankruptcy
protected , discovery in litigation among non- debtors is not among them.
routinely respond to such discovery.

See

28 U.S. C.

~ 959 , which generally requires a debtor in

50 Fed. R. Civ. P. 19(a),

, by its terms does not require joinder that would result

in depriving the court of jurisdiction. Once the Debtors filed for
jurisdiction of the court in the State Litigation.

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posseSSIOn to conduct

debtors.

The

Bankruptcy Court cited no authority for the proposition that the automatic stay protects Grace
from discovery in the State Litigation.

Nor does the record indicate that discovery will impose any meaningful burden on Grace.

There is no indication that testimony by current Grace
surprising, since

, as explained by the

, the State Litigation concerns

inspections that were initially conducted more than 50 years ago.

Orr v. State of Montana,

106

3d 100 ,

103 (Mont. 2004).

Grace Sl it is undisputed that the Grace documents relevant to the State Litigation are housed at a

repository in Boston , Massachusetts , set up to handle with ease all
Grace. The documents

, and have in the past been

litigation parties including the Libby Claimants.

authenticate documents ,

it

reorganization effort. Prior to Grace

s filing the State

, the State Litigation

proceeded uninterrupted by and without involvement of Grace for more than four years. There

was no harm then, and there is no harm now.

The Balancin2 of Harms Favors the Libbv Claimants
Notwithstanding the Bankruptcy Court' s indifference to the harm that years of delay in
pursuing the State Litigation causes to the Libby Claimants , that harm is

above , the Libby Claimants continue to suffer and die , without medical coverage for end stage

51 The Libby Claimants ' proof in the State Litigation regarding the Grace

exhibits and testimony obtained in pre- bankruptcy litigation with Grace. (Adversary proc. D. I. 363 , Ex Q, ~ 8. ) The ) Moreover, the Libby Claimants will not be serving discovery requests upon Grace for any State Litigation. State has already been provided with much of the discovery obtained by the Libby Claimants from Grace and the Grace repository. ( . at ~ 7.

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care. Even as

, the Grace Libby

Medical Program does not pay for nursing home care or 24- hour home care for

asbestos disease. Lack

hour care for the severely ill

enormous hardship for them and for the family members and other people who have assumed the
burden of providing such care.

from seeking a remedy from Grace while it attempts to reorganize , fairness and equity require
that they be permitted to obtain , through the tort system , compensation to cover end-stage care
from wrongdoers like the State. Considerations of justice require permitting the Libby Claimants

to pursue the State Litigation.

Contrary to the State s assertion in the Stay Motion , the recently announced settlement
between Grace and the

' Committee has no bearing on this

demonstrated above , Grace s Chapter 11 plan cannot have any effect on the

because the State is not an owner , manager , insurer or financier of Grace. (As more specifically

delineated in Section 524(g)(4)(ii) of the

, these are the categories of third

parties that may be affected by an injunction under a Chapter

) If it

turns out that Grace s plan will have some kind of adverse impact on the State , the State has a
completely satisfactory remedy: it can object to confirmation. The effect

the State is not a factor that should be
appeal in an adversary proceeding that has nothing to do with Grace s plan.
Public Interest

In the Stay Order the Bankruptcy Court finds that the public interest is served by staying
the State Litigation

public fisc " (the State of Montana

, presumably) will be

impacted if the Libby Claimants ' suits are ultimately
52 (Adversary Proc. D. I. 363 , Exs. A393. 001- 20298. doc

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decision of the Montana

against the State because the
townspeople of their plight."

to warn the miners or
at 11

Orr , 106 P . 3d

reference to the public interest , the personal views of a bankruptcy judge concerning the fiscal
affairs of the Montana state government cannot trump the reported decision of Montana s highest

court permitting the State Litigation to proceed regardless of the inevitable cost to Montana
taxpayers if the Libby Claimants obtain judgment.
Furthermore , federal policy supports " the
every action.
just

sDeedv and inexpensive determination of

Fed. R. Civ. P. 1 (emphasis added).

permitting injured persons to obtain the speediest possible recovery, especially when the plaintiff

is likely to die if the
(potential death of a party is

See Clinton v. Jones ,

520 U. S.

681 , 708 (1997)

There is no public interest in permitting the State of Montana , a non- debtor party, to hide behind
the protections of the Bankruptcy Code.

At the end but perhaps as part of its

, the Bankruptcy

Court expressed concern that " record taint" may impact the Grace estate if the State Litigation
were to proceed , adding:

We recognize that the fact of record taint affecting the Debtors in the event the state court actions proceed gives rise to the thought that we should have issued the injunction in favor of the State of Montana rather than denying it. However, we Pacor as expressed in our most recent Memorandum Opinion on this
are bound by

issue.

Stay Order at pp. 4- 5. Thus ,

the
Pacor the Third Circuit held that not

record taint" is not a legitimate concern , namely, that in

even the entry of judgment against a non- debtor party for injuries related to the debtor s asbestos

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let alone the creation of an
leading to such judgment , affected the debtor s bankruptcy estate.
related to " jurisdiction

s asbestos in the

, how

record taint" be

requiring a stay pending appeal?

The Bankruptcy Court itself supplied another reason why the creation of yet another trial

record involving Grace
Claimants ) claims

s asbestos should be a matter of

(The Libby

. will be addressed in the Debtors ' plan of
s Chapter 11 case ,

reorganization.

Stay Order at p. 4.

it has been

apparent that Grace would-in the
more trusts under Section 524(g) to provide payment on account of asbestos claims , including
those of the Libby Claimants , and would receive a discharge of liability for such claims. As the
Bankruptcy Court observed , a term sheet among Grace , the Asbestos Claimants ' Committee and

certain other parties providing for exactly this approach , and fixing the amounts that Grace will

transfer to the trust (which will be
liability), was announced on April 7.

s asbestos

See id . To be sure , many issues remain to be

before Grace emerges from

, and the Bankruptcy Court has a

optimistic predictions concerning how soon Grace will
Grace will at some point emerge from Chapter

53 Grace

s argument throughout these proceedings that its own conduct is in large part at issue in the State Litigation Pacor and Federal- Mogul. In Federal- Mogul , the debtor s conduct was party squarely at issue because the debtor had Federal- Mogul , 282 B.R. litigation. Nevertheless , the bankruptcy court lacked jurisdiction over the target litigation. Pacor , too , the debtor s conduct was at issue in the third-party litigation , which concerned asbestos products 301. In Pacor and Federal- Mogul faced the same detriment about which Grace manufactured by the debtor. The debtors in professes concern: in the litigation among non- debtor parties , witnesses might say things about the debtor without the debtor being present to cross-examine.
does not distinguish this situation from

54 "

, I for one can predict that between now and two years from now at least Grace is going to be not on my
(Bankr. Case D. I.

docket any longer in terms of plan confirmation. "

6266 , Tr. of 8/23/04 hearing at p. 41: 15- 17.

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including the Libby

parties other than Grace could in any way affect a future trial of the Libby
Grace , no such trial will ever take place because Grace s asbestos liabilities will be
under Chapter 11.

Finally, although even a well- founded concern about " record

taint" cannot confer

jurisdiction , Grace has failed to establish a valid basis for any such concerns in this case. While
in past Bankruptcy Court pleadings Grace points to a District Court decision in

Johns- Manville
, under oath or otherwise , by the agent

noting that " (0 )nce an

of a party, that admission stands for all time " that observation is inapposite here.
admissions Grace is concerned about have already been made. s conduct in
In addition to the

Libby has been tried

documents , photographs and other exhibits that were submitted to the courts during those trials

the plaintiffs
testimony of Earl Lovick , the assistant manager of the Libby mine for nearly 30 years , and now
deceased. S7 The evidentiary record of Grace
s misconduct in Libby already exists. Indeed ,

the

Montana Supreme Court has

s high standard for
s finding that

punitive damages see Mont. Code Ann. ~ 27- 221 (1997), and affirmed a jury
Grace committed intentional , reckless and/or malicious conduct.
PJd 778 (Mont. 2000).

Finstad v. W. R. Grace & Co. , 8

In sum , the Bankruptcy Court failed to correctly apply the standard for the
stay pending appeal. The State is " unlikely " to succeed in its appeal , the balance of the harms

55 (Adversary Proc. D. I. 359 , ~ 29 ,
QQmJ, 40 B. R. 219 , 225 (S.

(citing

Johns- Manville Corp. v. Asbestos Litig. Group (In re Johns- Manville

56 (Adversary Proc. D. I. 363
57 (

Y. 1984)).

15.

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clearly favors the Libby Claimants , and there is no public
inevitable State Litigation. The Stay does not " protect the rights of all parties in interest" and
should be dissolved immediately.

II.

The Stay is ImDroDer Because there is No

The Denial Order is an interlocutory
but has not been granted , leave to appeal. As set forth

Claimants to Motion of W. R. Grace for Leave to Appeal Order Denying Injunction dated April

, 2008 , S8

interlocutory Denial Order , nor can it
appeal under 28 U.S. C. ~ 158(a)(3) have been met. In the absence of an appeal , there can be no
stay pending appeal.

In re Muecke , 2003 WL 22143257 , *2 (W.

D. Tex. 2003);

In re James

River Assocs. , 148 B. R. 790 , 798 (E. D. Va. 1992). The Stay is improper.

III.

ReQuestin2 the BankruDtcy Court to

Pursuant to Fed. R. Bankr. P. 8005 , the Libby Claimants hereby submit that a request to
the Bankruptcy Court to terminate the Stay would be futile.

, the

Libby Claimants assert that the Bankruptcy Court was wrong in issuing the
Claimants have already made these arguments to the Bankruptcy Court and believe a motion to

reconsider would be an ineffective use of time and
termination of the Stay, the Libby Claimants have filed the Motion with this Court.

58 (Adversary Proc. D.

I. 505.

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CONCLUSION
For the foregoing reasons , the Motion should be granted. The Stay should be
forthwith.
Dated: May 2 , 2008

LANDIS RA TH & COBB LLP

Wilmington , Delaware

dam G. Landis

Kerri K. Mumford (No. 4186) 919 Market Street , Suite 600 O. Box 2087 Wilmington , DE Telephone: (302) 467- 4400 Facsimile: (302) 467- 4450 Email: landis~lrc1aw. com mumford~lrclaw. com
- and -

Daniel C. Cohn Christopher M. Candon COHN WHITESELL & GOLDBERG LLP 101 Arch Street Boston , MA 02110 Telephone: (617) 951- 2505 Facsimile: (617) 951- 0679
Counsel for the Libby

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EXHIBIT A
(STAY ORDER)

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELA WARE
TN RF.

R. Grace & Co. , Inc. Debtors

et a/.

Bankruptcy

No.

01- 1139

Chapter 11

R. Grace &

Co.

Inc.,

et at.
Adversary No.

Plaintiffs
01- 771

Margaret Chakarian and John Does 1- 1000 et al. Defendants

Related to Document. No. 486,

State of Montana s Motion for Stay Pending Appeal in the District Court of this Court'
Order Dcnying Montana s Motion

for Reconsideration
MEMORANDUM ORDER GRANTING MOTION FOR STAY PENDING APPEAL
The issue berore court is whether to grant a stay pending appeal under Fed. R.Bankr.
8005.

The underlying state court action has been stayed for approximately 30 months. The

argument at the hearing of April 21 , 2008j Jbcused on whether this court has jurisdiction to
entertain the motion for stay because of our March 27, 2008, Order at Adversary Doc. No.

484

that we had no jurisdiction

to

issue an injunction in favor

of

the State

of

Montana under

c. ~ 10S.

s jurisdiction with respect

to

the 9105 injunction is the basis
to

of

the

order

that is subject to the appeal. We find that we have

entertain the

Fed. R.Bankr. P. 8005 motion for stay pending appeal. In addition , we have jurisdiction over the

parties in interest who have appeared here seeking the Rule 8005 requires that motions to stay pending appeal be presented to the bankruptcy

~'h"
DKT. NO.
OT. FilE

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judge in the first instance. Rule 8005 permits the
rulings as "

will protect the rights of all parties in interest."

In our Memorandum Opinion of MarcH 27 2008 , we found that a 9105 injunction in

favor of Montana could not issue for the reasons expressed in two opinions we issued on the
subject
see

Adversary Doc. Nos. 419 and 483, 1 and ,

although the standards for issuance of a

stay pending appeal under Rule 8005 are similar to those for issuance of an injunction , th~ focus
ora stay pending appeal is

of the action , the Rule 8005 stay is centered on staying the effect of this court' s order dcnying the
iI~junction, not on the merits of the tU'lderlying action. The Rule also is aimed at maintaining the

stalus quo pending an appeal so that the Tights of all parties

obtain a stay pending appeal thc movant , here the State of Montana , must (1) make a strong
showing of likelihood of success on the merits in the appeal , (2) that it wilt suffer irreparable
hann absent a stay, (3) that issuance of lhe stay
action and (4) that the stay is in the public interest.

in re Finova Group, Inc. 2007 WL 3238764

(D. Del. ,

Oct. 31 2007). The bankruptcy court
\I.

Morgan

Polaroid Corporation

2004 WI, 253477

(D.

De1. , Feb. 9 , 2004).

Here , we find that, based on the views of the Court of Appeals for the Third Circuit as
expressed in

Pacor, Inc. v. Higlflns 743 F. 2d 984 (3d Cir. I 984)j
368 (3d Cir. 2002), cert. denied sub nom. DujmlerChrysler

In re Federal- Mogul Glohal
OjJkial Committee

Inc.,

300 F. 3d

~f Asbestos Claimants 537 U. S. 1148 (2003), and

In re Comhustion Engineering, Inc. 391 F.3d

190 (3d Cir. 2004), the State of Montana is not likely to prevail on the merits on appeal.
I The

Case 1:08-cv-00246-RLB

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However , the hann to the parties that will result in the event that an appellate court determines

that the injunction should issue will be so severe if

s likelihood

of success on the merits is not the predominant factor to be considered under the unique
circumstances presented.

If an appellate court determines that
Men'lorand~lm Opinion and Order are incoITect

2008

, the injunction should issue in

Montana j s favor, absent a stay pending appeal Montana will be required to defend actions that it
otherwise would not have been required to defend at this time.

Furthennore , if the actions

proceed against Montana , the State would be forced to defend without benefit of Debtors as a

party and without being able to obtain discovery from the Debtors because of the automatic stay.

Conversely, the harm which the Libby Claimants may suffer is not substantial because , although
they may have independent claims against the Statej the basis of the Libby Claimants ' primary

alleged wrong has been and continues to be focused on Debtors and Debtors ' opcrations which
generated asbestos dust in the Libby, Montana, area and led to the alleged personal injuries and
property damages for which Libby Claimants seek redress.
We note that

only statutory action direct claims against the State for, in essence alleged

violation of its independent duty to warn , and not claims that also implicate Debtors such as
aiding and abetting claims , may go forward at this time. All claims against the Debtors, or which

implicate them or their businesses , products , property, etc" are stayed pursuant to 9362. Any claims that implicate the Debtors or their businesses , products , property, etc. , are c1carly subjcct
to ~362 , must be addr~ssed in the plan , and may be channeled to a trust under ~524(g) or
otherwise addressed.

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Furthermore , the Libby Claimants are fsbestos creditors and are subject to the automatic

stay of 9362 as well as to the
which the Libby Claimants have attempted to bring actions throughout the pendency of this case.

Their claims against the Debtors , the alleged source or asserted Libby i1I5 , wi1l be addressed in
the Debtors ' plan ofreorgani~ation with respect to which, we note, significant progress has been

made recently as announced in court on April 7. 2 Another short delay pending appeal will not

cause substantial or untoward harm until the merits of the appeal are determined.

We also find that issuance of a stay pending appeal will not harm the public interest. In
tact , not issuing the stay will harm the public interest because permitting the suit to go forward is

an economic cost to be borne by its citizens and , if Montana suffers an adverse judgment , its
public fisc will be affcetcd.

Furthennore , although the parties have represented to the court that by statute there can
be no collateral estoppel effect against the Debtors through pursuit of the Montana state court
actions , the reality is that thcrc will be " record taint" in that witnesses win be

The impact could well adversely impact the estate inasmuch as Debtors ' products and conduct
will of necessity be put at issue in the state court actions.

We recognize that the fact of record taint affecting the Debtors in the event the state court actions proceed gives rise to the thought that we
State of Montana rather than denying it. However; we are bound by Pacor

us expressed in our

The State of Montana offcred to use a period of a stay pending to try to settle this disput~. The several months that this appeal could pend will providc an opportunity for those discussions, The court encourages the State and the Libby Claimants to engage in that endeavor.

Case 1:08-cv-00246-RLB

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most rccent Memorandum Opinion on this issue. In addition , Debtors may solve their own
liability issues , including contingent liabilities to the State of Montana , if any, through a plan.

For the foregoing reas\ms , it is
pending appeal is

ORDF.RED

that the State of Montana s motion for stay

GRANTED.
FURTHER ORDERED

It is

that counsel for the State of Montana shall immediately

serve a eopy of this Memorandum Order on all parties in interest who do not receive electronic
notice and shall fi1e a certificate of service forthwith.

~Jt~:t:
J;-dit

United States Bankruptcy Judge

h K. Fitzgerald

4\~~\~1"

Case 1:08-cv-00246-RLB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
IN RE: W. R. Grace & Co. et al.

R. Grace & Co. et al. and The State of Montana

Civil Action No. 08- 246 (RLB)

Appellants
Bankruptcy Case No. 01- 1139
Adversary Case No. 01- 771

Libby Claimants
Appellee.

Appeal No. 08-

AFFIDAVIT OF SERVICE
STATE OF DELAWARE
) SS

NEW CASTLE COUNTY

Cathy A. Adams , being duly sworn according to law, deposes and says that she is employed by the law firm of Landis Rath & Cobb LLP , attorneys for the Libby Claimants in the above-referenced cases , and on the 2nd day of May, 2008 , she caused a copy of the following:

LIBBY CLAIMANTS' EMERGENCY MOTION TO DISSOLVE STAY PENDING APPEAL
to be served upon the parties on the attached list via first class mail or in the manner as indicated.

L~ r;Q~~
Cathy A. A ams
SWORN TO AND SUBSCRIBED before me this 2nd day of May, 2008.

LIND
NOTARY PUBLIC STATE OF DELAWARE
My commission (woirp~ ,

Iune 20, 2011

393, OOI- 20247. DOC

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R. Grace & Co.,

et aL

v. Margaret Chakarian,

et aL,

and John Does 1- 1000 Adv. Pro. No. 01- 771

District Court 1:08-cv- 246
Service List

Mark Shelnitz R. Grace & Co. 7500 Grace Drive Columbia, MD 21044 (Debtors and Debtors in Possession)

David M. Bernick, P. Janet S. Baer, Esquire Lori Sinanyan , Esquire Kirkland & Ellis LLP 200 East Randolph Drive Chicago, IL (Counsel to W. R. Grace & Co. etal.)

HAND DELIVERY
Laura Davis Jones ,

Esquire

James E. O' Neill , Esquire Pachulski Stang Ziehl & Jones LLP 919 North Market Street , 17th Floor O. Box 8705 Wilmington, DE (Counsel to Debtors and Debtors in Possession)

Lewis Kruger, Esquire Kenneth Pasquale , Esquire

HAND DELIVERY
Michael R. Lastowski , Esquire Richard W. Riley, Esquire Duane Morris LLP 1100 North Market Street, Suite 1200 Wilmington, DE 19801- 1246 (Counsel to Official Committee of Unsecured Creditors)

Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY (Counsel to Official Committee of Unsecured Creditors)

HAND DELIVERY
Michael B. Joseph , Esquire Ferry, Joseph & Pearce , P. 824 Market Street, Suite 904 O. Box 1351 Wilmington, DE 19899 (Counsel to Official Committee of Asbestos Property Damage Claimants)

Scott L. Baena, Esquire Bilzin Sumberg Baena Price & Axelrod LLP First Union Financial Center 200 South Biscayne Blvd. , Suite 2500 Miami , FL 33131 (Counsel to Official Committee of Asbestos Property Damage Claimants)

HAND DELIVERY
Marla Rosoff Eskin, Esquire Mark T. Hurford, Esquire Campbell & Levine, LLC 800 North King Street, Suite 300 Wilmington, DE (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

Peter Van N. Lockwood, Esquire Nathan D. Finch, Esquire Caplin & Drysdale , Chartered One Thomas Circle , N. Washington, DC 20005 (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

Case 1:08-cv-00246-RLB

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Page 3 of 6

Elihu Inselbuch, Esquire Caplin & Drysdale, Chartered 375 Park Avenue , 35th Floor New York, NY 10152- 3500 (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

HAND DELIVERY
Frank 1. Perch, Esquire Office of the United States Trustee 844 King Street Suite 2311 Wilmington, DE (United States Trustee)

HAND DELIVERY
Teresa K.D. Currier, Esquire Buchanan Ingersoll & Rooney PC 1000 West Street, Suite 1410 Wilmington , DE (Counsel to Equity Committee)

Philip Bentley, Esquire Thomas M. Mayer, Esquire Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY (Counsel to Equity Committee)

John e. Phillips , Jr. , Esquire Phillips , Goldman & Spence , P. 1200 North Broom Street Wilmington, DE (Counsel to David T. Austern, Future Claimants Representative)

Richard H. Wyron, Esquire Orrick , Herrington & Sutcliffe , LLP 3050 K Street, NW Suite 300 Washington, DC 20007 (Counsel to David T. Austern, Future Claimants Representative)

HAND DELIVERY
Edward B. Rosenthal , Esquire Rosenthal , Monhait, & Goddess , P. 919 Market Street Mellon Bank Center, Suite 1401 Wilmington, DE (Counsel to Continental Casualty Company)
Brian H. Mukherjee , Esquire Goodwin Procter LLP Exchange Place Boston, MA 02109 (Counsel to CNA Financial Corporation)

HAND DELIVERY
Elizabeth DeCristofaro , Esquire Ford Marrin Esposito Witmeyer & GIeser, L.L.P. Wall Street Plaza, 23rd Floor New York, NY 10005- 1875 (Counsel to Continental Casualty Company)

Ian Connor Bifferato, Esquire Garvan F. McDaniel , Esquire Chad J. Toms , Esquire Bifferato Gentilotti LLC 800 North King Street, First Floor Wilmington, DE (Counsel to Royal Indenmity Company)

Case 1:08-cv-00246-RLB

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Carl 1. Pernicone , Esquire Wilson, Elser, Moskowitz , Edelman & Dicker LLP
150 East 42nd Street

Daniel e. Cohn, Esquire

New York, NY 10017-5639 (Counsel to Royal Indenmity Company)

Cohn Whitesell & Goldberg LLP 101 Arch Street Boston, MA 02110 (Counsel to Libby Plaintiffs)

HAND DELIVERY
Evelyn 1. Meltzer , Esquire Pepper Hamilton LLP Hercules Plaza, Suite 5100 1313 Market Street
PO Box 1709

Wilmington , DE 19899- 1709 (Counsel to BNSF Railway Company)

Edward C. Toole , Jr. , Esquire Anne Marie Aaronson, Esquire Pepper Hamilton LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, P A (Counsel to BNSF Railway Company)

HAND DELIVERY
Mark J. Phillips , Esquire Jeffreye. Wisler , Esquire Connolly Bove Lodge & Hutz LLP
The N emours Building

Edward J. Longosz, II , Esquire
Laura G. Stover,

Esquire

1007 N. Orange Street

O. Box 2207 Wilmington, DE (Counsel to Maryland Casualty Company)

Eckert Seamans Cherin & Mellott, LLC 1747 Pennsylvania Avenue , N. , Suite 1200 Washington, DC 20006 (Counsel to Maryland Casualty Company)

HAND DELIVERY
Steven M. Yoder, Esquire The Bayard Firm 222 Delaware A venue , Suite 900 O. Box 25130 Wilmington , DE (Counsel to DIP Lender)
1. Douglas Bacon, Esquire Latham & Watkins LLP Sears Tower, Suite 5800 Chicago , IL 60606 (Counsel to DIP Lender)

HAND DELIVERY
David S. Rosenbloom , Esquire McDermott, Will & Emery 227 West Momoe Street Chicago , IL 60606- 5096 (Counsel to National Medical Care, Inc.
David E. Wilks , Esquire Buchanan Ingersoll PC The Nemours Building 1007 N. Orange Street, Suite 1110 Wilmington, DE (Counsel to Gamma Holding, NY)

Case 1:08-cv-00246-RLB

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HAND DELIVERY
Kathleen M. Miller, Esquire Smith , Katzenstein & Furlow LLP The Corporate Plaza 800 Delaware Avenue Wilmington, DE (Counsel to the Allen Plaintiffs)
Gary Smolker

Alice Smolker 4720 Lincoln Blvd. , Suite 280 Marina del Rey, CA 90292- 6977

HAND DELIVERY
Steven K. Kortanek, Esquire Klehr Harrison Harvey Branzburg & Ellers LLP 919 Market St. , Suite 1000 Wilmington, DE (Counsel to Carol Gerard)

Brian Parker, Esquire 36 South Charles Street
Charles Center South

Suite 2200 Baltimore , MD 21201 (Counsel to Carol Gerard)

HAND DELIVERY
Thomas D. Walsh, Esquire McCarter & English, LLP 919 Market St. , Suite 1800 Wilmington, DE (Counsel to James and Julie Holland)

Michael S. Etkin , Esquire Lowenstein Sandler P. 65 Livingston Avenue Roseland , NJ 07068 (Counsel to Keri Evans)

David K. Foust, Esquire 3030 W. Grand Boulevard
th Floor

HAND DELIVERY
Francis A. Monaco, Jr. , Esquire Kevin 1. Mangan, Esquire Womble Carlyle Sandridge & Rice, PLLC
222 Delaware Avenue , Ste. 1501

Detroit, MI 48202 (Counsel to the State of Michigan, Department of Corrections)

Wilmington, DE (Counsel to the State of Montana)

HAND DELIVERY
Mark D. Collins , Esquire Deborah E. Spivack , Esquire

HAND DELIVERY
Bernard G. Conaway, Esquire Fox Rothschild LLP 919 Market Street, Suite 1300 Wilmington , DE (Counsel to the Lanier Law Firm Asbestos Claimants)

Richards , Layton & Finger, P. One Rodney Square 920 N. King Street O. Box 551 Wilmington, DE (Counsel to The Chase Manhattan Bank)

Case 1:08-cv-00246-RLB
HAND DELIVERY
Daniel B. Butz, Esquire Gregory T. Donilon, Esquire William H. Sudell , Jr. , Esquire Morris , Nichols , Arsht & Tunnell 1201 N. Market Street O. Box 1347 Wilmington, DE (Counsel to The Scotts Co.

Document 5-3

Filed 05/02/2008

Page 6 of 6

Robert 1. Sidman , Esquire Tiffany Strelow Cobb , Esquire Vorys , Sater, Seymour and Pease LLP 52 East Gay Street O. Box 1008 Columbus , OH 43216 (Counsel to The Scotts Co.

HAND DELIVERY
Greenberg Traurig, LLP The Nemours Building 1007 North Orange Street, Suite1200 Wilmington , DE (Counsel to ExxonMobile)

HAND DELIVERY
Ellen W. Slights Assistant U. S. Attorney
The N emours Building

1007 Orange Street, Suite 700 Wilmington, DE

Dale R. Cockrell ,

Esquire

Christensen, Moore , Cockrell , Cummings & Axelberg, P. e. O. Box 7370 Kalispell , MT 59904 (Counsel to the State of Montana)