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3 IN RE: : Case No. 17-31795

4 BESTWALL LLC, : Chapter 11

5 Debtor. : Charlotte, North Carolina

Thursday, January 24, 2019
6 : 9:53 a.m.

7 : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

8 BESTWALL LLC, : AP 17-03105

9 Plaintiff, :

10 v. :


12 JOHN AND JANE DOES 1-1000, :

13 Defendants. :

14 : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :



18 For the Plaintiff/Debtor: Robinson, Bradshaw & Hinson, P.A.

19 101 N. Tryon Street, Suite 1900
Charlotte, NC 28246
Transcript prepared by: JANICE RUSSELL TRANSCRIPTS
22 1418 Red Fox Circle
Severance, CO 80550
23 (757) 422-9089
Proceedings recorded by electronic sound recording; transcript
25 produced by transcription service.
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1 APPEARANCES (continued):

2 For the Plaintiff/Debtor: Jones Day

3 2727 North Harwood St., Suite 500
Dallas, TX 75201-1515
Jones Day
1420 Peachtree St., N.E., #800
6 Atlanta, GA 30309

7 For Georgia-Pacific LLC: Rayburn Cooper & Durham, P.A.

8 227 West Trade St., Suite 1200
Charlotte, NC 28202
Debevoise & Plimpton
11 919 Third Avenue
New York, NY 10022
For the Bankruptcy Bankruptcy Administrator's Office
13 Administrator: BY: SHELLEY K. ABEL, ESQ.
402 West Trade Street, Suite 200
14 Charlotte, NC 28202

15 For Official Committee of JD Thompson Law

Asbestos Claimants: BY: LINDA W. SIMPSON, ESQ.
16 Post Office Box 33127
Charlotte, NC 28233
Robinson & Cole LLP
19 1000 N. West Street, Suite 1200
Wilmington, DE 19801





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1 APPEARANCES (continued):

2 For Future Claimants' Hull & Chandler, P.A.

Representative, Sander L. BY: FELTON PARRISH, ESQ.
3 Esserman: 1001 Morehead Square Dr., #450
Charlotte, NC 28203
Young Conaway
6 1000 North King Street
Wilmington, DE 19801

APPEARANCES (via telephone):
10 Future Claimants' Representative
2323 Bryan Street, Suite 2200
11 Dallas, TX 75201-2689


13 For the Plaintiff/Debtor: Jones Day

14 1420 Peachtree St., N.E., #800
Atlanta, GA 30309
16 77 West Wacker
Chicago, IL 60601
Schachter Harris, LLP
19 909 Lake Carolyn Pky., Suite 1775
Irving, Texas 75039
For Asbestos Plaintiffs: Brayton Purcell, LLP
222 Rush Landing Road
22 Novato, CA 94945



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1 APPEARANCES (via telephone continued):

2 For Georgia-Pacific LLC: Debevoise & Plimpton LLP

3 801 Pennsylvania Avenue N.W.
Washington, D.C. 20004
Debevoise & Plimpton LLP
919 Third Avenue
6 New York, NY 10022

7 For Wilentz, Goldman & Wilentz, Goldman & Spitzer P.A.

Spitzer Plaintiffs: BY: DEIRDRE W. PACHECO, ESQ.
8 Suite 900 Box 10
90 Woodbridge Center Drive
9 Woodbridge, NJ 07095-0958

10 For the Official Committee Montgomery McCracken

of Asbestos Claimants: BY: MARK A. FINK, ESQ.
1105 North Market St., 15th Floor
12 Wilmington, DE 19801













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1 P R O C E E D I N G S

2 (Call to Order of the Court)

3 THE COURT: All right. Good morning.

4 (Counsel greet the Court)

5 THE COURT: I apologize for the tech, technical

6 difficulties that we have experienced this morning. I'm

7 beginning to wonder if maybe we haven't paid our phone bill and

8 that might be part of the, part of the difficulty, but I

9 understand that that's all been squared away and everybody

10 should be on the phone now and should be able to appear

11 telephonically, at least those who we understood were going to

12 be calling in.

13 Let me also say you all tend to bring bad weather with

14 you. It's a little warm today and the chillers are broken

15 because of the construction. So we shouldn't be here too too

16 long, but it's just going to be hot.

17 And sort of one more kind of announcement before we

18 get started. They just handed me this (indicating) and said

19 somebody left it here when we were back here in November. So

20 you can come gather it after the hearing's over, but you can

21 wait until the conclusion of the hearing.

22 So we are here for the Court to rule on the motion of

23 the Committee to dismiss the debtor's chapter 11 case for cause

24 as a bad faith filing pursuant to Section 1112(b), or,

25 alternatively, transfer venue in the interests of justice and

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1 for the convenience of the parties pursuant to Section 1412 and

2 the responses, reply, and surreplies thereto.

3 We are also here today for a ruling on the motion of

4 the debtor for an order preliminarily enjoining certain actions

5 against nondebtors or, in the alternative, declaring that the

6 automatic stay applies to such actions and granting a temporary

7 restraining order pending a full hearing on the motion and the

8 objections, joinders, replies, and surreplies thereto.

9 Having said that, Ms. Abel, why don't I start over

10 here with you and have you all announce your appearances and

11 then I'll get to the folks who are on the phone.

12 MS. ABEL: Shelley Abel, Bankruptcy Administrator.

13 THE COURT: Okay.

14 MR. HARRON: Good morning, Your Honor. Ed Harron and

15 Sharon Zieg from Young Conaway, Felton Parrish from Hull &

16 Chandler, for the Future Claimants' Representative.

17 THE COURT: Okay.

18 MR. HARRON: And Mr. Esserman, the Future Claimants'

19 Representative, is on the phone.

20 THE COURT: Okay.

21 MR. HARRON: Thank you.

22 THE COURT: We hope, anyway, right?

23 MR. HARRON: We do.

24 MS. ZIEG: Good morning, Your Honor. He's on.

25 THE COURT: Good.

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1 MS. RAMSEY: Good morning, Your Honor. Natalie Ramsey

2 and my partner, Davis Wright, newly with the law firm of

3 Robinson & Cole.

4 Your Honor, we filed a motion for substitution of

5 counsel. We will shortly be filing --

6 THE COURT: Okay.

7 MS. RAMSEY: -- a declaration, but we did want to make

8 the Court aware that we were now affiliated with a new law

9 firm.

10 THE COURT: Okay.

11 MS. RAMSEY: And we're here, Your Honor, also, with

12 Linda Simpson from JD Thompson Law.

13 THE COURT: Thank you.

14 MS. RAMSEY: Thank you.

15 THE COURT: All right.

16 MR. GORDON: Ms. Ramsey has indicated to us that she

17 intends to behave in a different way now that she's changed law

18 firms. So we'll keep Your Honor updated on that.

19 THE COURT: Okay.

20 MS. RAMSEY: Your Honor, that, that's not true.

21 THE COURT: Glad we got that out there.

22 MR. GORDON: We'll, we'll discuss that later, Your

23 Honor.

24 THE COURT: All right.

25 MR. GORDON: Greg Gordon, Jeff Ellman, Jones Day, on

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1 behalf of the debtor. Also, Garland Cassada with the Robinson

2 Bradshaw firm on behalf of the debtor.

3 THE COURT: Okay. Thank you.

4 MS. LABOVITZ: Your Honor, Natasha Labovitz, with my

5 partner, Mark Goodman, from Debevoise & Plimpton on behalf of

6 New GP, along with our co-counsel, Jack Miller.

7 THE COURT: Okay. Thank you.

8 All right. And on the phone I understand -- and

9 rather than asking you to announce your appearance, I'm going

10 to list off your names and if you would, just confirm you're on

11 the line:

12 Craig Zimmerman?

13 MR. ZIMMERMAN: Yes, Your Honor. Good morning.

14 THE COURT: Daniel Donovan?

15 MS. DONOVAN: Yes, Your Honor. Good morning.

16 THE COURT: Oh, I'm sorry.

17 Deirdre Pacheco?

18 MS. PACHECO: Good morning, Your Honor. Yes, I'm

19 here. Thank you.

20 THE COURT: Cary Schachter?

21 MR. HARRIS: Mr. Schachter's not on today.

22 THE COURT: Okay.

23 Ray Harris?

24 MR. HARRIS: Yes. This is Ray Harris, Your Honor.

25 THE COURT: Erin Therrian?

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1 MS. THERRIAN: I'm present, Your Honor.

2 THE COURT: Sander Esserman?

3 MR. ESSERMAN: I'm present, Your Honor. Thank you.

4 THE COURT: Uh-huh (indicating an affirmative

5 response).

6 Brad Erens?

7 MR. ERENS: Present, Your Honor. Thank you.

8 THE COURT: Mark Fink?

9 MR. FINK: Present, Your Honor. Good morning.

10 THE COURT: Greg Bruens? Craig Bruens? I'm sorry.

11 MR. BRUENS: Good morning, Your Honor. I'm present.

12 Thank you.

13 THE COURT: Elie Worenklein?

14 MR. WORENKLEIN: Good morning, Your Honor. I'm

15 present as well.

16 THE COURT: Bryn Letsch?

17 MS. LETSCH: Good morning, Your Honor. I'm present.

18 Thank you.

19 THE COURT: Laurie Krepto?

20 MS. KREPTO: I'm here, Your Honor. Thank you.

21 THE COURT: Michael Cloherty?

22 (No response)

23 THE COURT: All right.

24 And is there anybody else appearing on the phone?

25 (No response)
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1 THE COURT: Okay.

2 As you all know, these matters originally came on for

3 hearing on November 9, 2018, at 9:30. The parties argued the

4 motions over the entirety of that day and, in retrospect, that

5 was sort of an yeoman's job that you all did getting all of

6 those matters heard by the conclusion of that day. At the

7 conclusion of the hearing, I announced I would continue the

8 hearing until today so that I could give you my ruling.

9 I'll start much the same way that I ended that day by,

10 again, recognizing how complicated these issues are and by

11 acknowledging that there are no easy answers. I've read and,

12 in some instances, I've reread several times your briefs, the

13 cases you've cited, and I've studied the transcript from the

14 hearing and having done all that, I've concluded that I must

15 deny the motion of the Committee to dismiss the case, or,

16 alternatively, transfer venue and grant the motion of the

17 debtor for an order preliminarily enjoining certain actions

18 against nondebtors.

19 For what it's worth, I don't make this decision

20 lightly, nor do I make it easily. So bear with me as I take a

21 minute to get through all of this.

22 Similar to the way we proceeded at the hearing on

23 November 9th, I'll start with the Committee's motion to

24 dismiss, or, alternatively, to transfer venue. I'll then

25 discuss the motion for a preliminary injunction or a

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1 declaration that the automatic stay applies.

2 I'll also note for the records that the parties, for

3 the record, that the parties stipulated to the facts relevant

4 to these motions and the parties agreed that there was no

5 dispute about the facts presented at the hearing.

6 As you all well know, the Fourth Circuit standard for

7 dismissal of a chapter 11 case as a bad faith filing is one of

8 the most stringent articulated by federal courts. In Carolin

9 Corp. v. Miller, the Fourth Circuit held that to dismiss a case

10 as a bad faith filing the movant must prove, first, that the

11 chapter 11 case is objectively futile and, second, that the

12 debtor filed the chapter 11 case in subjective bad faith. The

13 Fourth Circuit made it clear in Carolin that the movant has a

14 high burden in order to establish this two-prong requirement.

15 As the court noted, this two-prong test:

16 "[I]s the only sufficiently stringent test of

17 justification for threshold denials of Chapter 11

18 relief. Such a test obviously contemplates that it is

19 better to risk proceeding with a wrongly motivated

20 invocation of Chapter 11 protections whose futility is

21 not immediately manifest than to risk cutting off even

22 a remote chance that a reorganization effort so

23 motivated might nevertheless yield a successful

24 rehabilitation."

25 Similarly, the court goes on to say, "It contemplates

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1 that it is better to risk the wastefulness of a probably futile

2 but good faith effort to reorganize than it is to risk error in

3 prejudging its futility at the threshold."

4 Because I conclude that this case is not objectively

5 futile, largely for the reasons argued by the debtor in its

6 objection to the motion to dismiss, I need not reach the issue

7 of whether this case was filed in subjective bad faith and deny

8 the motion to dismiss the case as a bad faith filing.

9 The Committee made compelling arguments about the

10 debtor's lack of good faith, but for the reasons stated I don't

11 need to address that issue today. I will ultimately have to

12 rule on the debtor's good faith, albeit in a different context,

13 when we get to confirmation. Suffice it to say at this point,

14 on the one hand, how the debtor got here and the filing of this

15 case may technically comply with the relevant statutes. On the

16 other hand, I'm not sure it's what Congress had in mind when it

17 drafted Section 524(g) to address mass tort bankruptcies.

18 I recognize that the result may well be different if

19 we were in a different Circuit, but we aren't. I believe this

20 case falls square within the Fourth Circuit's conclusion that

21 it's better to risk proceeding with a chapter 11, the filing of

22 which is, arguably, wrongfully motivated, than to risk cutting

23 off the possibility that the filing might result in a

24 successful reorganization. At this point, I conclude that that

25 possibility exists.
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1 Pursuant to Carolin, the objective futility inquiry

2 requires courts to focus on determining whether there's no

3 going concern to preserve and no hope of rehabilitation except

4 according to the debtor's terminal euphoria. I agree with the

5 debtor that attempting to resolve its asbestos claims through

6 524(g) is a valid reorganizational purpose and that filing,

7 especially in the context of an asbestos or mass tort case,

8 need not necessarily be due to insolvency. The Committee

9 ultimately, I believe, conceded that point and it's especially

10 true in this case, given the number of claims, the volume of

11 asbestos claims Bestwall faced, together with the number of

12 claims projected to be filed at least through 2050. That's

13 sufficient financial distress for the debtor to seek resolution

14 through 524(g).

15 In light of the funding agreement, which allows

16 Bestwall to draw from New GP the amount of money necessary to

17 pay the costs of this chapter 11 and to fund a Section 540(g)

18 trust, 524(g) trust, to the extent the debtor's assets are

19 insufficient to do so, there's no reason for the Court to

20 conclude at this point that Bestwall does not have the ability

21 to reorganize and to establish a trust that meets the statutory

22 requirements of 524(g). Based on the facts presented in the

23 stipulation, even as a holding company Bestwall owns

24 substantial assets and operating businesses that produce

25 substantial cashflow and have an enterprise value of nearly 150

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1 million and, therefore, has the ability to make future payments

2 as required by 524(g).

3 Likewise, for the same reason, it appears that

4 Bestwall satisfies any applicable ongoing business requirement

5 of 524(g), but 524(g) does not require Bestwall to maintain a

6 particular level of operations or to fund the entirety of the

7 trust with its own assets or securities. It's sufficient at

8 this point to know that the debtor owns an operating business,

9 that this business, combined with the debtor's other assets

10 which are backstopped by the support New GP is obligated to

11 provide pursuant to the funding agreement, are sufficient for

12 purposes of 524(g) and for this Court to conclude that this

13 case is not objectively futile.

14 In support of its argument that the case is

15 objectively futile the Committee asked the Court to ignore the

16 funding and other support agreements, but that ignores reality.

17 The Committee argues that the funding agreement creates the

18 illusion of a viable business arrangement where one would not

19 otherwise exist. That, too, ignores reality for the reasons I

20 previously noted.

21 In the alternative, the Committee argues that the

22 funding agreement does not contain sufficient protections to

23 justify the debtor's reliance on, on it. At the hearing on the

24 motion to dismiss the Committee conceded it's difficult to

25 predict exactly what problems may arise with the funding

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1 agreement because you don't know what you don't know and while

2 the Court may share some of those concerns, they're

3 unsubstantiated concerns and insufficient for the Court to

4 conclude it should grant the motion to dismiss.

5 In addition, the debtor has encouraged the Committee

6 to articulate specific concerns about the funding agreement or

7 to suggest ways in which it can be improved to alleviate the

8 Committee's concerns. To date, the Committee has -- and I

9 think understandably -- declined to take the debtor up on that

10 offer and I would suggest that now would be the time.

11 Finally, issues and concerns about the funding

12 agreement can be addressed in the confirmation process.

13 On a different note, let me also say that another

14 point consistently expressed by the Committee throughout its

15 pleadings and at the hearing on the motion to dismiss was its

16 concern about the delay caused by this case being in bankruptcy

17 court instead of allowing the claimants to proceed in state

18 court. That point was driven home by the Chairman of the

19 Committee -- and pardon me if I get his name wrong --

20 Mr. Kazan.

21 MS. RAMSEY: Kazan.

22 THE COURT: Kazan.

23 I hear you, Mr. Kazan, who is not here. I heard

24 Mr. Kazan, I suppose I should say then, and I sincerely

25 appreciate his and others' concern about the Committee members

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1 and other claimants and while I don't have personal experience

2 with mesothelioma, it was one year ago this week that I lost a

3 close family member to two different forms of cancer and I have

4 one of my oldest, dearest friends struggling mightily with

5 cancer, as I speak. So I get it. However, I'm not convinced

6 that the claimants are necessarily worse off here. I believe

7 their claims can be sufficiently addressed and fairly

8 adjudicated through a trust created in this case. Some would

9 argue it can be done more efficiently and with less cost, but

10 that's on you. That's on all of you. You all, the parties to

11 this case, control where this case goes from here and how

12 expeditiously we get there. I can assure you that the Court

13 will not be the cause of any delay.

14 In the alternative, the Committee moved to transfer

15 venue of this case. Venue of this case is proper under 28

16 U.S.C. § 1408 because the debtor formed as a limited liability

17 company in Texas July 31, 2017, then its domicile was

18 immediately transferred to North Carolina, 94 days prior to the

19 petition date or for a longer portion of 180 days prior to the

20 filing of this chapter 11 than it was domiciled in any other

21 state. The Committee acknowledges that the debtor has,

22 technically, complied with the statutory venue provisions.

23 The Committee has not established by a preponderance

24 of the evidence that a transfer of these cases, of this case,

25 would be in the interest of justice or for the convenience of

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1 the parties pursuant to 28 U.S.C. § 1412. Specifically, the

2 Committee argues for the transfer of the case to Delaware,

3 Georgia or, really, anyplace other than here. Delaware,

4 because it was the state of formation of both Old GP and New GP

5 and the location of, according to them, the debtor's largest

6 asset, the receivables from New GP under the funding agreement,

7 or Georgia, because New GP's principal place of business is in

8 Atlanta.

9 With respect to the Committee's argument regarding the

10 interest of justice, courts consider a variety of factors when

11 deciding if the interests of justice support a transfer of

12 venue, the most important of those factors being whether

13 transfer promotes the economic and efficient administration of

14 the bankruptcy estate. Courts also consider -- and you all

15 know these factors -- of whether the transfer facilitates

16 judicial economy; the parties' ability to receive a fair trial

17 in either venue; whether either forum has an interest in

18 deciding controversies within its jurisdictional borders;

19 whether a transfer would affect the enforceability of any

20 judgment rendered; and whether the debtor's original choice of

21 forum should be disturbed.

22 Of the factors that apply, they all weigh against

23 transferring venue. The debtor is neither organized in

24 Delaware, nor does it have its principal place of business or

25 assets there. The debtor's domiciled here in the Western

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1 District of North Carolina and many of its assets are here.

2 Keeping the case in this District will avoid the expense and

3 delay associated with transferring the case to Delaware or

4 Georgia, especially now that the case has been pending in this

5 District for over a year and given this Court's familiarity

6 with the case and the fact that the debtor says it stands ready

7 to file a plan and disclosure statement, I disagree with the

8 Committee's assertions that this case is in its infancy.

9 The fact that the debtor is a holding company weighs

10 against transferring the case in the interest of justice

11 because it's not an operating company with employees, vendors,

12 customers, and other tangible assets in a separate location

13 making this case factually distinguishable from Patriot Coal.

14 Finally, for what it's worth, I'll take a minute to

15 touch on a theme in the Committee's pleadings, which I think is

16 the underlying basis for its motion to transfer venue and,

17 likely, the other motions that were before the Court on

18 November 9th.

19 In its motion to dismiss the Committee argues that the

20 debtor's obvious forum shopping evidences a clear effort to

21 take advantage of Fourth Circuit law and to taint this case

22 with the factual findings made in Garlock, which the Committee

23 acknowledges is "a vastly different and unrelated case." The

24 Committee made similar references throughout its brief and

25 again in Footnote 6 in its surreply to the motion for a

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1 preliminary injunction in which it states that, "Of significant

2 import to the Committee is the apparent effort to develop a

3 playbook or blueprint for attempting to maximize the impact of

4 the Garlock decision and for eviscerating the claimant

5 protections contained in 524(g)."

6 First, I find it difficult to believe that the end

7 result in Garlock eviscerated claimant protections contained in

8 524(g).

9 Second -- and you know this -- this case is not

10 Garlock and I am not Judge Hodges, nor is Judge Whitley, for

11 that matter. Neither of us are bound by the Garlock decision

12 and you fail to give me proper credit by presuming that because

13 that case was heard in this District the outcome of an

14 estimation trial in this case would necessarily be the same or

15 even similar. As the Committee notes, this is a different case

16 and presumably, the facts and the evidence presented at an

17 estimation trial would be different and, therefore, so would

18 the outcome. Either way, it would be a new estimation trial

19 with different parties trying the case and to the best of my

20 ability, I will reach the right result and one that is

21 consistent with the evidence you present.

22 But you can't presume that it would necessarily be the

23 same result reached by Judge Hodges in Garlock and I would ask

24 that all parties bear that in mind as this case moves forward.

25 With respect to the Committee's argument that this

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1 case should be transferred for the convenience of the parties,

2 Bestwall's creditors are spread throughout the country;

3 therefore, the Western District is just as convenient as any

4 jurisdiction. The fact that counsel for the Committee and the

5 FCR are located in Delaware is not determinative of venue.

6 Bestwall's assets are located in this District and New GP's

7 headquarters are located in Atlanta, which is not far down the

8 road, certainly closer to Charlotte than Delaware. And while

9 it's true that the Third Circuit has significant experience

10 with asbestos bankruptcies, this Court also has experience with

11 asbestos cases and is gaining more experience every day and is

12 perfectly well equipped and, arguably, a more convenient forum

13 in which to handle them, given the location of our airport and

14 the ability and willingness, for example, of the Court to set

15 aside monthly hearing dates for each of these asbestos cases.

16 In short, the Committee has not shown by a

17 preponderance of the evidence that the case should be

18 transferred to either Delaware or Georgia for the convenience

19 of the parties.

20 I will now turn to the debtor's motion for an order

21 preliminarily enjoining certain actions against nondebtors, or,

22 in the alternative, declaring that the automatic stay applies

23 to such actions. Specifically, the debtor seeks to enjoin

24 litigation against New GP and other non-debtor affiliates of

25 Bestwall. I'll simply refer to them as the Non-Debtor Third

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1 Parties.

2 Following the entry of a temporary restraining order

3 on November 8, 2017, the Court entered an injunction with the

4 consent of the Committee. Pursuant to an order entered

5 December 7, 2017, the injunction has been extended from time to

6 time with the consent of the Committee without prejudice to its

7 right to object to further continuances of the injunction and

8 on August 15, 2018, that's what the Committee did. And the

9 Committee and the FCR filed objections to the continuation of

10 the injunction and that's the matter that's before the Court

11 today.

12 As Ms. Ramsey noted at the hearing, these issues are

13 complicated and difficult to organize, but I agree that the

14 Court must start by considering whether the Court has subject

15 matter jurisdiction and, specifically, related-to jurisdiction.

16 The Fourth Circuit has adopted the Pacor test for

17 determining whether a proceeding is sufficiently related to a

18 bankruptcy case for this Court to have jurisdiction under

19 Section 1334(b). The Pacor test examines whether the outcome

20 of a proceeding could conceivably have any effect on the estate

21 being administered in bankruptcy. A proceeding need not

22 necessarily be against the debtor or against the debtor's

23 property because an action is related to bankruptcy if the

24 outcome could alter the debtor's rights, liabilities, options,

25 or freedom of action, either positively or negatively, and

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1 which in any way impacts upon the handling and administration

2 of the bankrupt estate. I conclude that terminating the

3 injunction could, conceivably, have an effect on the debtor's

4 estate and, therefore, that this Court has subject matter

5 jurisdiction to enjoin claims against the Non-Debtor Third

6 Parties.

7 First, the debtor has indemnity obligations that would

8 make judgments against New GP tantamount to judgments against

9 the debtor. The FCR refers to the indemnity obligations as

10 fully circular and contrived and, therefore, would have no

11 effect on the estate, but that argument ignores the fact that

12 the funding agreement is a backstop and that the debtor's

13 assets must be used first to fund a trust to pay asbestos

14 claims under a confirmed plan. Paying the indemnity claims

15 would deplete the assets the debtor has available to fund the

16 trust and, therefore, have an effect on the debtor's estate.

17 In addition, the FCR and the Committee contend that

18 this Court lacks jurisdiction to enjoin lawsuits against New GP

19 because they argue New GP is directly liable for the asbestos

20 claims as a successor to Old GP. The debtor, on the other

21 hand, argues that New GP could only have derivative liability

22 because the asbestos liabilities were assigned to Bestwall as

23 part of the corporate restructuring.

24 In determining jurisdiction it's not necessary for the

25 Court to conclude whether claims against New GP would be direct

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1 or derivative for the reasons stated by the debtor. Any

2 alleged liability of New GP would be for the same claims that

3 are being asserted against the debtor. The claims would

4 necessarily have to involve the same set of facts, the same

5 products, the same exposures, the same conduct, and the same

6 diseases because they all derive from Old GP. To permit the

7 claimants to return to the tort system to proceed against New

8 GP on the same claims that the debtor proposes to pay through a

9 524(g) trust under the debtor's plan of reorganization would

10 have an effect on the debtor's estate and defeat the

11 fundamental purpose of 524(g) and this filing. For example,

12 lifting the injunction would distract the debtor's personnel

13 from working on this chapter 11 reorganization and would

14 require them to spend significant time assisting with,

15 participating in, or monitoring lawsuits against New GP.

16 So for all these reasons, and others, the Court

17 concludes it has jurisdiction to enjoin the pursuit of claims

18 against the Non-Debtor Third Parties.

19 I'll next turn to the Committee's due process and

20 preemption arguments. Like the debtor, I conclude that the

21 Committee's due process and preemption arguments fail.

22 Due process, I'll start there. The Committee argues

23 that the corporate restructuring of Old GP ignored the due

24 process rights of the claimants. I'm not aware of and the

25 Committee has not cited any law, any case law, that it would
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1 have required Old GP to consult with the claimants or the

2 plaintiffs in the tort system or to take their vote before it

3 engaged in the corporate restructuring. The claimants will be

4 afforded due process in the confirmation process, given the

5 confirmation requirements of the Code and Section 524(g). More

6 specifically, the case cannot be confirmed without the active

7 participation and support of the Committee, the consent of 75

8 percent of the claimants themselves, and the approval of both

9 this Court and the District Court. In addition, the claimants

10 can pursue fraudulent conveyance claims in this case, if they

11 so choose.

12 Because of these procedures which are available to the

13 claimants and are designed to protect their due process rights,

14 I can't conclude that their due process have been violated.

15 With respect to preemption, the Committee argues that

16 New GP is independently liable for the Bestwall asbestos claims

17 because the Texas divisional merger statute pursuant to which

18 Old GP undertook the corporate restruction, restructuring is

19 preempted by Section 524(g). I agree with the debtor that the

20 doctrine of preemption, either conflict or field preemption,

21 does not apply in this case because, as the debtor argued, "The

22 Texas statute and 524(g) concern completely different subjects

23 and work readily in tandem, including in the context of this

24 chapter 11 case."

25 At the hearing the claimants argued that 524(g) is the

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1 only way to cleanse a company of asbestos liability or

2 permanently, globally, and fairly resolve the Bestwall asbestos

3 claims, yet they say the debtor suggests that the Texas

4 divisive merger statute has already accomplished that. I

5 disagree and conclude that that isn't at all what they're

6 saying. What they're saying is that having engaged in this

7 corporate restructuring we are now before the bankruptcy court

8 so it can permanently and globally resolve the asbestos claims.

9 That's the entire purpose behind this bankruptcy proceeding and

10 if Bestwall can't meet its burden of confirming a plan and

11 obtaining a channeling injunction, it won't have cleansed

12 anything. It's for that reason and the other reasons argued by

13 the debtors that the preemption argument fails.

14 So with respect to conflict preemption, I can't

15 conclude that compliance with the Texas statute and 524 are

16 impossible. That conclusion is also consistent with finding

17 that this case is not objectively futile.

18 Likewise, there's no field preemption. Corporate

19 restructuring is strict, strictly a matter of state law and

20 524(g) takes corporations in their form, in their current form,

21 and it provides a tool for addressing mass asbestos liability

22 and obtaining an injunction, assuming that that corporation can

23 meet all the requirements of 524(g) and the other confirmation

24 requirements of the Bankruptcy Code.

25 Having addressed subject matter jurisdiction and the

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1 Committee's due process and preemption arguments, I'll analyze

2 the Fourth Circuit's four-prong test for the issuance of an

3 injunction.

4 I'll start with likelihood of success on the merits.

5 The debtor satisfies this prong of the four-part test by

6 showing that it has a realistic possibility of a successful

7 reorganization. For all of the same reasons, I concluded that

8 the debtor's filing is not objectively futile.

9 I can also conclude that the debtor has a realistic

10 possibility of a successful reorganization. As implicitly

11 recognized by both the Committee on Page 42 of its objection to

12 the debtor's motion and the FCR on Page 6 of its surreply to

13 the debtor's motion, I don't have to determine at this point

14 whether the asbestos claims against New GP will ultimately be

15 subject to a channeling injunction. That issue is not before

16 the Court and it's distinct from the issue of whether the

17 debtor is entitled to an injunction under 105. So I'll save

18 that issue for another day.

19 I conclude that failure to maintain the existing

20 injunction would cause irreparable injury to the debtor. For

21 all the reasons argued by the debtor in its motion, I agree.

22 It would defeat the purpose of this chapter 11 to allow the

23 asbestos claims to continue to be prosecuted in the tort

24 system.

25 The balance of harm supports maintaining the

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1 injunction, again for the reason that the purpose of this

2 chapter 11 filing would be defeated if the litigation of the

3 Bestwall asbestos claims were allowed to proceed against the

4 Non-Debtor Third Parties.

5 The defendants argue that an injunction will delay

6 their effort to obtain compensation, but, as previously noted,

7 that's not necessarily the case and is, to a large extent,

8 within the control of the parties to this case. If the case

9 proceeds as it should, it should provide both existing and

10 future claimants with an efficient and expedited means by which

11 to address their claims.

12 In addition, delay, in and of itself, is insufficient

13 to overcome irreparable harm.

14 Finally, nothing about maintaining the injunction in

15 this case prohibits the defendants from continuing to proceed

16 against any remaining defendants in state court.

17 Lastly, I'll address public interest and I find that

18 it supports maintaining the injunction because the public

19 interest lies in completing the reorganization process and

20 resolving thousands of claims in a uniform and equitable

21 manner, as noted in the W. R. Grace & Company case. Again,

22 allowing the asbestos claims to be litigated in state court

23 against the Non-Debtor Third Parties would defeat the purpose

24 of this case. Extending the injunction at this point does not

25 allow either the debtor or New GP, as was argued, to escape

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1 their asbestos liabilities. Their liabilities will be

2 discharged only if the debtor confirms its plan and the

3 channeling injunction is extended to the asbestos claims

4 against New GP.

5 Having concluded that the debtor satisfies the four-

6 prong test for the issuance of an injunction, I need not reach

7 its alternative request for relief, which was a determination

8 regarding the issue of whether the actions by plaintiffs to

9 attempt to hold New GP liable for claims against the debtor are

10 stayed pursuant to Section 362 of the Bankruptcy Code.

11 So the bottom line is, folks, that surviving these

12 motions is only part of the story of this bankruptcy case. I

13 think that result is consistent with the Fourth Circuit's

14 dismissal standard, as was outlined or as is outlined in the

15 Carolin case.

16 So while the debtors have won the war, or won the

17 battle, so to speak, they still have to win the war. And

18 pardon the analogy. As I've said, I don't believe this case

19 should be or needs to be a war, but I think you know what I

20 mean.

21 Going forward, the debtors will have to work with the

22 Committee and the FCR to confirm a plan and get a channeling

23 injunction and we'll see where we go from here.

24 I believe that that addresses in some shape, form, or

25 fashion all of the issues that were before the Court on

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1 November 9th.

2 Mr. Gordon, you're not going to like this, but I would

3 ask you to draw an order consistent with my remarks and to

4 incorporate in that order the pertinent sections of your brief.

5 There's no need to address subjective bad faith or the

6 automatic stay in any detail since the Court did not reach

7 those issues. Please, if you would, circulate that order by

8 counsel for New GP, the Committee, FCR and once you've

9 circulated that order, I would ask that you e-mail it to

10 Mr. Badger and upload it so we can, for the Court's

11 consideration.

12 And I think that takes us to the conclusion of the

13 hearing unless anybody has anything further.

14 MS. LABOVITZ: Your Honor, thank you very much for

15 your detailed ruling, which I think does provide helpful

16 guidance to all the parties.

17 There is one, I would call it a housekeeping matter --

18 THE COURT: Uh-huh (indicating an affirmative

19 response).

20 MS. LABOVITZ: -- that remains from the hearing on

21 November 9th, Your Honor, which was that we had made an oral

22 motion to intervene in the adversary proceeding to resolve any

23 questions regarding New GP's standing to participate in that

24 proceeding. I believe you ruled at that time, Your Honor, that

25 you had already read the briefs that were filed pursuant to a
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1 stipulated scheduling order and that you would allow us to

2 appear at the hearing, but I don't believe that there has been

3 a ruling on the motion to intervene.

4 If I may suggest, while we would be happy to brief

5 that or argue that today, if Your Honor is comfortable with

6 that motion, we could include it in the order that Mr. Gordon

7 is preparing.

8 THE COURT: Ms. Ramsey?

9 MS. RAMSEY: Your Honor, we, we have an objection to

10 that and we would ask that that be separately considered by the

11 Court on motion with the benefit of briefing and argument.

12 THE COURT: And I -- that would be my preference as

13 well.

14 And I -- I -- you did make that oral motion. I

15 apologize. That's one thing I did not cover in today's ruling.

16 So if you will file that motion and give the parties

17 the, you know, requisite amount of time and notice and

18 opportunity to respond. As I said, set it on for hearing.

19 We've got our monthly hearing dates and we will hear you next

20 time on that issue and, and we'll go forward from here.

21 MS. LABOVITZ: We will do so. Thank you, Your Honor.

22 THE COURT: Uh-huh (indicating an affirmative

23 response).

24 Yes, sir, Mr. Gordon.

25 MR. GORDON: One other point, if I can make it.

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1 The injunction currently expires on January 31, as

2 Your Honor may remember.

3 THE COURT: Right.

4 MR. GORDON: It may take longer than a week to

5 formulate the order and to have it signed off by the, the

6 Committee. So I would ask if we could, perhaps, extend that

7 through the end of February just to make sure we have plenty of

8 time to finalize it.

9 MS. RAMSEY: No objection, Your Honor.

10 MR. HARRON: No objection.

11 THE COURT: Okay. And I will look for that order.

12 MR. GORDON: Thank you, Your Honor.

13 THE COURT: And, and we'll extend it through the month

14 of February and if it needs to go a little longer than that,

15 you know, you all can talk about that and upload a consent

16 order, if necessary.

17 MR. GORDON: Appreciate it, Your Honor. Thank you.

18 THE COURT: Okay.

19 MS. RAMSEY: Your Honor, I, I also would like to thank

20 you for, for the ruling and, and for the thoughtfulness that

21 the Court put into it. I hope I'm not out of order, but I did

22 want to just respond to one thing, which was the Court's

23 interpretation of the footnote regarding the Garlock case and

24 the evisceration of the protections of 524(g).

25 The evisceration of the protections of 524(g) was

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1 intended to refer to the playbook of going through the Texas

2 divisive merger and coming back. It was not intended to refer

3 to the Garlock decision.

4 THE COURT: Thank you

5 MS. RAMSEY: So I just did want to clarify that for

6 the Court.

7 And I also wanted to say directly that we have every

8 confidence in Your Honor, so.

9 Thank you.

10 THE COURT: All right.

11 Anything further?

12 MR. HARRON: Thank you, Your Honor. We appreciate the

13 thoughtful ruling.

14 THE COURT: Thank you.

15 All right. With that, we will recess until tomorrow

16 morning at 9:30.

17 Thank you.

18 (Counsel thank the Court)

19 (Proceedings concluded at 10:30 a.m.)






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2 I, court approved transcriber, certify that the

3 foregoing is a correct transcript from the official electronic

4 sound recording of the proceedings in the above-entitled

5 matter.

6 /s/ Janice Russell January 25, 2019

7 Janice Russell, Transcriber Date