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UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

In re Chapter 11

BESTWALL LLC,1 Case No. 17-31795 (LTB)

Debtor.

REPLY IN SUPPORT OF MOTION OF THE DEBTOR

FOR RECONSIDERATION OF THE ORDER APPROVING
THE APPLICATION OF THE OFFICIAL COMMITTEE OF ASBESTOS
CLAIMANTS AUTHORIZING THE RETENTION AND EMPLOYMENT
OF SPECIAL LITIGATION COUNSEL FOR MEDICAL SCIENCE MATTERS

The above-captioned debtor and debtor-in-possession (the "Debtor") submits this

Reply (a) in support of the Motion of the Debtor for Reconsideration of the Order Approving

the Application of the Official Committee of Asbestos Claimants Authorizing the Retention and

Employment of Special Litigation Counsel for Medical Science Matters [Docket No. 441]

(the "Motion to Reconsider"),2 and (b) in response to The Official Committee of Asbestos

Claimants' Objection to the Motion to Reconsider the Order Approving the Retention and

Employment of Special Litigation Counsel for Medical Science Matters [Docket No. 445]

(the "Objection").3

1
The last four digits of the Debtor's taxpayer identification number are 5815. The Debtor's address is
100 Peachtree Street, N.W., Atlanta, Georgia 30303.
2
Capitalized terms not otherwise defined herein have the meanings given to them in the Motion to
Reconsider.
3
The representative of future asbestos claimants (the "FCR") filed the Statement of the Future Claimants'
Representative in Support of Official Committee of Asbestos Claimants' Retention and Employment of
Special Litigation Counsel for Medical Science Matters [Docket No. 447]. This statement expresses the
support of the FCR for the retention of the Retained Firms (as defined below), but does not raise any
additional arguments.

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Preliminary Statement

1. Through a series of discussions between counsel to the Official Committee

of Asbestos Claimants (the "ACC") and counsel for the Debtor, the Debtor and the ACC have

been able to resolve certain of the Debtor's concerns, albeit not the Debtor's primary concern,

with respect to the ACC's Application to retain four law firms (collectively, the "Retained

Firms")4 as special counsel for medical science matters in connection with a potential estimation

hearing (generally, the "Special Counsel"). The revised form of order attached as Exhibit A to

the Objection (the "Revised Order") reflects these agreed resolutions, including (a) elimination of

the retention of the Retained Firms under section 328 of the Bankruptcy Code;5 (b) clarification

that the Retained Firms will not seek additional compensation on account of "substantial

contribution" to the Debtor's chapter 11 case (the "Chapter 11 Case");6 and (c) the replacement of

nunc pro tunc retention of the Retained Firms to April 1, 2018 with a later retention effective

date of May 15, 2018.7

2. Unfortunately, the Debtor's primary issue—the clear redundancy, and the

associated added expense, of the ACC hiring four firms to fill a single role in connection with a

potential estimation proceeding—remains unresolved and unaddressed. Although the Debtor

does not dispute that the ACC is entitled to be well represented by qualified counsel for medical

science issues, the ACC's request to retain four different law firms to provide the same set of

4
The Retained Firms are: (a) Kazan, McClain, Satterley & Greenwood, a Professional Law Corporation
("Kazan McClain"); (b) Maune Raichle Hartley French & Mudd, LLC ("Maune Raichle"); (c) Ruckdeschel
Law Firm, LLC ("Ruckdeschel Law"); and (d) Weitz & Luxenberg PC ("Weitz & Luxenberg").
Application, at 1. Maune Raichle, Kazan McClain and Weitz & Luxenberg all serve on the ACC on behalf
of their respective asbestos plaintiff clients, and Kazan McClain is also a co-chair of the ACC.
5
Objection, at 3 n.5; Revised Order, ¶ 3.
6
Revised Order, ¶ 5 (the Retained Firms "will not seek substantial contribution claims").
7
Objection, ¶ 27; Revised Order, ¶ 2.

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services is highly unusual and wasteful of estate resources, and is particularly unjustified given

that each of the Retained Firms is highly experienced in medical science issues, including with

respect to the Debtor and its predecessors.8

3. The ACC has not demonstrated, either to the Debtor or in its filings, that it

has an actual need to engage four firms to provide the same services. Despite requests from

the Debtor, the ACC has not defined separate roles for each firm or developed any protocol to

ensure that the Retained Firms do not duplicate services. Instead, the ACC has indicated that all

four firms will perform the same services to ensure that each firm will be in a position to step in

at the estimation hearing if one or more of the other firms becomes unavailable at that time.

Such clear duplication of services is a waste of estate resources and is unnecessary. As

the Debtor indicated in its Motion to Reconsider, it is supportive of the ACC retaining up to two

firms to provide assistance to the ACC in medical science matters; authorizing two additional

engagements at this point to address future scheduling issues that may never arise is not

appropriate and not in the best interests of the Debtor or its estate.

Reply

The ACC Has Not Demonstrated That

Retention of Four Firms for the Same Role Is Necessary

4. Although the Objection offers new explanations for the retention of four

firms as Special Counsel, including by urging that the lawyers at the four firms collectively be

viewed as a single team, neither the Objection nor the Application addresses the duplication

8
The ACC suggests that it is at a disadvantage because the Debtor has "ready-made" candidates to address
the medical science issues likely to come up in an estimation trial, and the ACC does not. Objection, ¶ 4.
This point is not well grounded in fact. As described in more detail in the Declarations filed with the
Application, each of the five attorneys the ACC has chosen to lead the Special Counsel engagement is
intimately familiar with the medical science facts and issues that arise in cases against the Debtor's
predecessor, the former Georgia-Pacific LLC ("Old GP"), and each has been involved in numerous cases
against Old GP. See infra nn. 9, 10.

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inherent in a four-firm legal team or otherwise demonstrates why the retention of all four firms in

fact is necessary or appropriate.

5. As an initial matter, and contrary to statements in the Objection, each of

the Retained Firms individually is highly qualified to serve as Special Counsel and has

significant experience litigating the medical science issues for which they would be retained.

As described in the Declarations filed with the Application,9 each of the attorneys retained to

lead the Special Counsel engagement (collectively, the "Lead Attorneys") has analyzed and

litigated medical science issues for many years and in numerous cases, including cases against

the Debtor's predecessor, Old GP. Thus, much like the Debtor's special counsel, each of the

Retained Firms—and the Lead Attorneys, in particular—would bring significant prior

knowledge and experience to the role of Special Counsel. These are, of course, some of the lead

9
See Declaration of Christian Hartley, ¶ 7 (discussing Maune Raichle's experience litigating multiple cases
involving medical science issues relating to chrysotile asbestos, including (a) trials against Old GP and
(b) trials yielding verdicts of approximately $15 million and $4.5 million); ¶ 9 (noting that Maune Raichle
"represents hundreds of individuals who hold asbestos mesothelioma claims against numerous defendants,
including Old GP"); Declaration of John Langdoc, ¶ 6 ("I and other lawyers at Kazan McClain possess
substantial experience in the litigation of the technical and scientific issues that Debtor, Old GP, and other
asbestos joint compound manufacturers … assert in their defenses of asbestos tort and wrongful death
suits."), ¶ 9 ("Kazan McClain is a law firm that almost exclusively represents individuals who hold asbestos
personal injury claims against defendants, including the Debtor's predecessor, [Old] GP."); Declaration of
Jerry Kristal, ¶ 6 ("Weitz Luxenberg is a leading firm in the representation of plaintiffs in asbestos tort
litigation. I and other lawyers at Weitz Luxenberg participated in numerous asbestos personal injury
proceedings in various state and federal courts for over 30 years. I and other lawyers at Weitz Luxenberg
possess substantial experience in the litigation of the technical and scientific issues that Debtor, Old GP,
and other joint compound manufacturers … assert in their defenses of asbestos tort and wrongful death
suits."), ¶ 9 ("Weitz Luxenberg is a law firm that, among other things, represents thousands of individuals
who hold asbestos personal injury claims against numerous defendants, including the Debtor's predecessor,
Old GP."); Declaration of Jonathan Ruckdeschel, ¶ 6 ("I and other lawyers at Ruckdeschel Law possess
substantial experience in the litigation of the technical and scientific issues that Debtor, GP, and other joint
compound manufacturers … assert in their defenses of asbestos tort and wrongful death suits."), ¶ 7 ("I and
other lawyers at Ruckdeschel Law have collaborated with lawyers at Weitz & Luxenberg, Maune Raichle
and Kazan McLain in previous cases involving the same or similar issues for which the Committee now
wishes to engage our services in the estimation proceeding."), ¶ 9 ("Over the past 12 years, Ruckdeschel
Law has represented numerous individuals and families who hold or have held asbestos personal injury
claims against numerous defendants, including the Debtor's predecessor, [Old] GP.").

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law firms that have litigated these issues against the Debtor and its predecessor in the tort system

for many years.10

6. The ACC argues that all four of the Retained Firms must share the role of

Special Counsel in order to marshal sufficient resources and staff to provide the necessary

services. However, three of the four Retained Firms are large and well-resourced firms. They

are a far cry from the single partner firms that the ACC describes in the Objection.11

For example, Weitz & Luxenberg employs over 100 attorneys,12 Maune Raichle employs

approximately 50 attorneys13 and Kazan McClain has approximately 25 attorneys.14

Ruckdeschel Law, which has three attorneys on staff,15 is the only Retained Firm that resembles

the type of small firm that the ACC describes in the Objection.

7. The ACC further suggests that none of the Retained Firms individually

could support an engagement of this size. The ACC states that if any of the Retained Firms were

10
See KAZAN MCCLAIN SATTERLY & GREENWOOD, https://www.kazanlaw.com (last visited July 24, 2018).
("Since its founding in 1974, Kazan Law has represented thousands of people suffering from asbestos
related illnesses, particularly mesothelioma. Our principals are among the most experienced mesothelioma
lawyers in the country.") (emphasis added); About Us, W EITZ & LUXENBERG,
https://www.weitzlux.com/about-us/ (last visited July 24, 2018) ("Weitz & Luxenberg has earned national
acclaim for our pioneering work in asbestos litigation, handling more than 500 cases each year."); Why
Choose MRHFM?, MAUNE RAICHLE HARTLEY FRENCH & MUDD, LLC,
https://www.mrhfmlawfirm.com/about-mesothelioma-law-firm.html (last visited July 24, 2018).
("The attorneys at MRHFM, collectively, have 100 years of experience exclusively dealing with
mesothelioma cases. This experience has allowed us to gain extensive industry knowledge about the
companies that are responsible for exposing [clients] to asbestos."); Leadership, RUCKDESCHEL LAW FIRM
LLC, http://www.rucklawfirm.com/leadership.php (last visited July 24, 2018) ("Jonathan Ruckdeschel has
successfully litigated numerous asbestos claims and mesothelioma lawsuits.").
11
Objection, ¶ 4.
12
Our Attorneys, W EITZ & LUXENBERG, https://www.weitzlux.com/attorney-profiles/ (last visited July 24,
2018).
13
Our Attorneys, MAUNE RAICHLE HARTLEY FRENCH & MUDD, LLC,
https://www.mrhfmlawfirm.com/mesothelioma-attorneys.html (last visited July 24, 2018).
14
Our Attorneys, KAZAN MCCLAIN SATTERLY & GREENWOOD, https://www.kazanlaw.com/about-kazan-
law/our-attorneys/ (last visited July 24, 2018).
15
Leadership, RUCKDESCHEL LAW FIRM LLC, http://www.rucklawfirm.com/leadership.php (last visited
July 24, 2018).

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to devote the same amount of time that Schachter Harris, LLP ("Schachter Harris") spent

providing special counsel services in In re Garlock Sealing Technologies, the firm would "risk its

future as an ongoing entity."16 But, Schachter Harris has only six lawyers on staff.17 Thus, it is

unclear how the Retained Firms, most of which are significantly larger than Schachter Harris,

would be unable to serve as Special Counsel unless all four firms pooled their staff and

resources.

8. At heart, the problem with the ACC's proposed four-firm structure is that

it appears to be designed specifically for redundancy. For starters, none of the Retained Firms is

identified as having different areas of expertise or skill sets, nor have they been described as

focusing on different matters or tasks. Despite the Debtor's concerns regarding the likely

duplication of services by the Retained Firms, the ACC has not established any unique roles for

the Retained Firms to avoid overlapping work, nor have they proposed any protocol or plan for

how responsibilities will be allocated among the Retained Firms to prevent waste and

duplication. The ACC vaguely states in its Objection that "steps will be taken" to eliminate

duplication of efforts among the Retained Firms, but the ACC provides no description

whatsoever of what those steps may be and has been unable to identify any such plans when

asked.18 By contrast, the Debtor retained two firms to assist with medical science matters, and

each has a distinct and defined role: Schachter Harris will be the lead firm for medical science

matters;19 and King & Spalding, LLP ("King & Spalding") will assist in addressing unique issues

16
Objection, ¶ 9.
17
Our Firm, SCHACHTER HARRIS LLP, https://schachterharris.com/ (last visited July 24, 2018).
18
Objection, ¶ 17. Counsel to the ACC has indicated that they are working to develop a plan, but no such
plan has yet materialized.
19
See Ex Parte Application of the Debtor for an Order Authorizing It to Retain and Employ Schachter Harris
LLP as Special Litigation Counsel at ¶ 13, In re Bestwall LLC, No. 17-31795 (LTB) (Bankr. W.D.N.C.
Nov. 2, 2017) [Docket No. 28].

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relating to plaintiffs' challenges to certain medical science research based on its prepetition

experience with those issues.20

9. Rather than establishing roles for the four Retained Firms, the ACC's

primary argument appears to be that all four firms are needed in the event that any of their five

Lead Attorneys becomes unavailable at some future time on account of his litigation schedule.

That approach would require that all of the firms prepare as if they will be called to serve as lead

counsel on any issue, resulting in overlap, duplication and waste. The concern about

unpredictable trial calendars of the Lead Attorneys can be addressed if and when any estimation

litigation proceeds. The Debtor will work with the ACC to resolve any scheduling conflicts in

the event they arise, particularly since the Debtor will be faced with the very same issue.

The Debtor expects to rely on just three lead attorneys on medical science issues—two from

Schachter Harris and one from King & Spalding.21 The Debtor thus faces the same possibility

that one of those professionals may be unavailable at the time of trial or other key litigation

activities relating to an estimation hearing. Because the Debtor and the ACC have to date

worked cooperatively to resolve scheduling issues, the Debtor is confident that it and the ACC

will be able to resolve any future scheduling concerns relating to either party's professionals that

may arise in connection with an estimation proceeding.

10. In sum, the ACC has not demonstrated how the four Retained Firms will

avoid wasteful duplication of services to the ACC, which will impose burdensome costs on the

estate.

20
See Ex Parte Application to Employ King & Spalding LLP as Debtor's Special Counsel Pursuant to
Section 327(e) of the Bankruptcy Code Effective as of the Petition Date at ¶ 11, In re Bestwall LLC,
No. 17-31795 (LTB) (Bankr. W.D.N.C. Nov. 2, 2017) [Docket No. 27].
21
In particular, the lead attorneys for the Debtor on medical science issues are Ray Harris and Cary Schachter
from Schachter Harris and Richard Schneider from King & Spalding.

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Deferring the Issue of Duplication of Services to

the Fee Allowance Stage Will Waste Estate and Court Resources

11. The Objection suggests that it is improper to address possible duplication

of services during the retention stage, and that any such duplication should be remedied instead

solely through objections to compensation.22 The Debtor disagrees. Policing the monthly fee

statements and interim fee applications of the four Retained Firms to (a) identify duplicative

services, (b) raise objections to the fees requested for duplicative services and (c) prosecute those

objections would be time consuming, cumbersome and costly. Not only would such a process

waste estate resources, it would distract the Debtor's management and advisors from more

pressing matters related to the advancement and resolution of the Chapter 11 Case. Further,

raising objections to duplication ultimately will waste the time and resources of the Court if these

issues cannot be consensually resolved by the parties.

12. Instead, the Debtor submits that the ACC must demonstrate the need for

four Retained Firms at the outset. If it cannot demonstrate that each firm has a properly defined

role and will not perform duplicative services, which as of yet it has not done, then the ACC

should not be permitted to retain four firms to play a single role in the case.

Conclusion

13. For the reasons stated above and in the Motion to Reconsider, the Debtor

respectfully requests that this Court reconsider the ACC's Application and grant the relief sought

in the Motion to Reconsider to the extent not resolved by the parties.

22
Objection, ¶ 21 ("[A]ny argument relating to unnecessarily duplicative services is best addressed by
the Court upon application for fees and not on application for retention.").

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Dated: July 24, 2018 Respectfully submitted,

Charlotte, North Carolina
/s/ Garland S. Cassada
Garland S. Cassada (NC Bar No. 12352)
David M. Schilli (NC Bar No. 17989)
Andrew W.J. Tarr (NC Bar No. 31827)
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
E-mail: gcassada@robinsonbradshaw.com
dschilli@robinsonbradshaw.com
atarr@robinsonbradshaw.com

Gregory M. Gordon (TX Bar No. 08435300)

Daniel B. Prieto (TX Bar No. 24048744)
JONES DAY
2727 North Harwood Street, Suite 500
Dallas, Texas 75201
Telephone: (214) 220-3939
Facsimile: (214) 969-5100
E-mail: gmgordon@jonesday.com
dbprieto@ jonesday.com
(Admitted pro hac vice)

Jeffrey B. Ellman (GA Bar No. 141828)

Brad B. Erens (IL Bar No. 06206864)
JONES DAY
1420 Peachtree Street, N.E., Suite 800
Atlanta, Georgia 30309
Telephone: (404) 581-3939
Facsimile: (404) 581-8330
E-mail: jbellman@jonesday.com
bberens@ jonesday.com
(Admitted pro hac vice)

ATTORNEYS FOR DEBTOR AND

DEBTOR IN POSSESSION

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