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No. 12-17466
No. 12-17467
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re PLANT INSULATION COMPANY,
Debtor
ONEBEACON INSURANCE COMPANY, AMERICAN HOME ASSURANCE
COMPANY, GRANITE STATE INSURANCE COMPANY, INSURANCECOMPANY OF THE STATE OF PENNSYLVANIA, INSURANCE COMPANYOF THE WEST, SAFETY NATIONAL CASUALTY CORPORATION,
TRANSPORT INDEMNITY COMPANY, UNITED STATES FIDELITYAND GUARANTY COMPANY, and UNITED STATES FIRE INSURANCE
COMPANY,
Appellants,
v.
PLANT INSULATION COMPANY, et al.,
Appellees.
On Appeal from the United States District Court for the Northern District ofCalifornia, Hon. Richard Seeborg, Case No. 12-1887 RS
APPELLANTS SUPPLEMENTAL BRIEF
[COUNSEL LISTED ON FOLLOWING PAGE]
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OneBeacon Insurance Company United States Fidelity and Guaranty
Company
Paul E.B. GladDENTONS US LLP
525 Market Street, 26th FloorSan Francisco, CA 94105-2708
Phone: (415) 882-5000
Facsimile: (415) 882-0300
Email: [email protected]
Andrew T. FrankelSIMPSON THACHER & BARTLETT
LLP425 Lexington Avenue
New York, NY 10017-3954
Phone: (212) 455-2000
Facsimile: (212) 455-2502
Email:[email protected]
Philip A. OConnell, Jr.
DENTONS US LLP101 Federal Street, Suite 2750Boston, MA 02110
Phone: (617) 235-6802Facsimile: (617) 235-6884
Email: [email protected]
Deborah L. Stein
SIMPSON THACHER & BARTLETTLLP1999 Avenue of the Stars, 29th Floor
Los Angeles, CA 90067Phone: (310) 407-7500
Facsimile: (310) 407-7502Email:
Robert B. MillnerChristopher D. Soper
DENTONS US LLP233 S. Wacker Drive, Suite 7800
Chicago, IL 60606Phone: (312) 876-8000
Facsimile: (312) 876-7934
Email:[email protected]
Insurance Company of the WestValerie A. Moore
Eugenie Gifford BaumannHAIGHT, BROWN & BONESTEEL
LLP555 South Flower Street, 45
thFloor
Los Angeles, CA 90071
Phone: (213) 542-8000Facsimile: (213) 542-8100
Email:[email protected]
American Home Assurance CompanyInsurance Company of the State of
PennsylvaniaGranite State Insurance Company
American Home Assurance CompanyInsurance Company of the State of
PennsylvaniaGranite State Insurance Company
Randall J. PetersR. Jeff Carlisle
LYNBERG & WATKINS P.C.
Michael S. DavisZEICHNER ELLMAN & KRAUSE
LLP
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International tower Plaza
888 S. Figueroa Street, 16th
Floor
Los Angeles, CA 90017-5465Phone: (213) 624-8700
Facsimile: (213) 892-2763
Email:
[email protected]@lynberg.com
1221 Avenue of the Americas
New York, NY 10036
Phone: (212) 826-5311Facsimile: (212) 753-0396
Email:
Transport Insurance Company
Ray L. WongDUANE MORRIS LLP
One Market, Spear Tower Ste 2000
San Francisco, CA 94105-1104
Telephone: 415-957-3000Facsimile: 415-957-3001Email:
Safety National Insurance Company
Philip R. MatthewsPaul J. Killion (State Bar No. 124550)
Duane Morris LLP
One Market, Spear Tower, Suite 2200
San Francisco, CA 94105-1104Tel: 415.957.3000Fax: 415.957.3001
Email:[email protected]
United States Fire Insurance CompanyLawrence A. Tabb
MUSICK, PEELER & GARRETTOne Wilshire Blvd. #2000
Los Angeles, CA 90017
Tel: 213-629-7600Fax: 213-624-1376
Email: [email protected]
Chad WestfallMUSICK, PEELER & GARRETT
100 Montgomery Street, Suite 2525
San Francisco, CA 94104
Tel: 415-281-2030
Fax: 415-281-2010Email: [email protected]
United States Fire Insurance CompanyClinton E. Cameron
Seth M. EricksonTROUTMAN SANDERS LLP
55 West Monroe Street Suite 300
Chicago, IL 60603-5758Tel: 312-759-1925
Fax: 773-877-3719Email:
[email protected]@troutmansanders.com
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TABLE OF CONTENTS
PageINTRODUCTION ..................................................................................................1
ARGUMENT .........................................................................................................3
A. Section 524(g)(4)(B)(ii) Does Not Contemplate Tort Actions That Generate
Contribution Claims Among Insurers............................................................3
B. Caselaw And Legislative History Regarding 524(g)(4)(B)(ii) Provide NoSupport for Plan Proponents' Position...........................................................5
C. Plan Proponents' Argument As To 524(g)(4)(B)(ii) Should Be Rejected....6
CONCLUSION ....................................................................................................12
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TABLE OF AUTHORITIES
Page(s)CASES
Dewsnup v. Timm,
502 U.S. 410 (1992)...................................................................................2, 8, 9
eBay, Inc. v. MercExchange, L.L.C.,547 U.S. 388 (2006)...........................................................................................8
Hall v. U.S.,
132 S.Ct. 1882 (2012)........................................................................................8
Hecht Co. v. Bowles,
321 U.S. 321 (1944)...................................................................................2, 8, 9
In re A.H. Robins,
880 F.2d 694 (4th Cir. 1989)............................................................................10
In re Combustion Eng'g, Inc.,391 F.3d 190 (3d Cir. 2004)...............................................................................6
In re Congoleum, Corp.,362 B.R. 167 (Bankr.D.N.J. 2007).................................................................5, 6
In re Continental Airlines,203 F.3d 203 (3d Cir. 2000).............................................................................10
In re Dow Corning Corp.,
280 F.3d 648 (6th Cir. 2002)........................................................................2, 10
In re Plant Insulation Co., Inc.,
485 B.R. 203 (N.D.Cal. 2012)............................................................................6
In re Quigley Co., Inc.,437 B.R. 102 (S.D.N.Y. 2010).......................................................................5, 6
In re Thorpe Insulation,677 F.3d 869 (9th Cir. 2012)........................................................................2, 11
In re Vitro S.A.B. de CV,701 F.3d 1031 (5th Cir. 2012)..........................................................................11
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In re W.R.Grace & Co.,
2013 WL 4734030 (3d Cir. Sept. 4, 2013) .........................................................6
MacArthur Co. v. Johns-Manville Corp.,
837 F.2d 89 (2d Cir. 1988)...............................................................................10
Owner Operator Indep. Drivers Ass'n, Inc. v. Swift Transp. Co., Inc,367 F.3d 1108 (9th Cir. 2004)............................................................................9
Pepper v. Litton,
308 U.S. 295 (1939)...........................................................................................7
Perfect 10, Inc. v. Google,
653 F.3d 976 (9th Cir. 2011)..............................................................................8
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982)...........................................................................................6
Young v. U.S.,
535 U.S. 43 (2002).............................................................................................7
STATUTES
11 U.S.C. 524(g).........................................................................................passim
11 U.S.C. 524(g)(1)(A) ........................................................................................7
11 U.S.C. 524(g)(3)(A) ........................................................................................7
11 U.S.C. 524(g)(4)(B)(ii) ..........................................................................passim
OTHERAUTHORITIES
140 Cong. Rec. S1446-01, at S14464 (October 6, 1994) (remarks of Sen.
Heflin) ...............................................................................................................3
H.R. Rep. No. 103-835 ...........................................................................................3
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Appellants1 (also referenced as "Non-Settled Insurers") submit this brief per
the Court's August 23 Order [Dkt. No. 75] directing supplemental briefs addressing
11 U.S.C. 524(g)(4)(B)(ii) concerning the Plan Injunctions affecting Non-Settled
Insurers' Contribution Rights.
INTRODUCTION
Section 524(g)(4)(B)(ii) (quoted in the Addendum) emphasizes that the
bankruptcy and district courts act as courts of equity in issuing an injunction under
524(g), and mandates that the demands of future claimants not be channeled to
the trust and discharged without sufficient contribution to the trust by the parties
protected by the injunction. It is silent, however, regarding the treatment of
Contribution Claims by one insurer against another. The sparse caselaw and
legislative history addressing this subsection simply do not address the impairment
of insurer Contribution Rights.
The fact that the statute and related precedent fails to address the impairment
of insurer Contribution Rights is not surprising. That is because 524(g) does not
contemplate a plan like the Plan here, where tort claims are unleashed back into the
tort system as the principal source of claimants' recovery (funded entirely by
Debtor's insurers), while the Contribution Rights of Non-Settled Insurers are non-
1Capitalized terms herein are defined in Appellants' Joint Opening Brief or the
Plan.
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consensually enjoined and effectively extinguished. ER127:21-23; Joint Opening
Brief at 4-5, 26. As discussed below, the statute's silence regarding treatment of
Contribution Rights does not justify an inequitable result. Nor can the statute's
silence justify the lower courts' failure to apply established bankruptcy equity
jurisprudence governing the extraordinary circumstances in which it is appropriate
for a court to enjoin the rights of third-party non-debtors to recover against other
solvent third-party non-debtors. That jurisprudence, as summarized in In re Dow
Corning Corp., 280 F.3d 648, 658 (6th Cir. 2002) and as recognized by the plan in
In re Thorpe Insulation, 677 F.3d 869 (9th Cir. 2012), requires that non-debtors be
compensated in full for the loss of contribution rights imposed by a federal
injunction.
The Supreme Court has long made clear that amendments to the Bankruptcy
Code -- like the "Manville Amendments" that enacted 524(g) in 1994 -- may not
be viewed as effecting major changes in existing equity jurisprudence absent
express directive from Congress. See Dewsnup v. Timm, 502 U.S. 410, 419
(1992); Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944). These principles
directly refute Appellees' reliance on the understandable silence of
524(g)(4)(B)(ii) with respect to Appellants' Contribution Rights. Likewise, the
courts below erred in failing to apply the established requirements for issuance of
third-party injunctions in bankruptcy cases.
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ARGUMENT
A. Section 524(g)(4)(B)(ii) Does Not Contemplate Tort Actions That GenerateContribution Claims Among Insurers.
Section 524(g)(4)(B)(ii) does not address the question raised by this Court
because 524(g) does not contemplate the confiscatory Plan like the unique Plan
here. At oral argument, Appellees acknowledged that "this case is really the first
one to test the question of whether it's fair and equitable to cut off the contribution
claims. . . . There is no prior decision of a court of appeal that upholds a plan with
these provisions." Recording of April 19, 2013, Oral Argument at 28:20. Unlike
the instant Plan, 524(g) was modeled on the trust/injunction in the Johns-
Manville case, which channeled all asbestos claims to the trust as the exclusive
source of payment and as an alternative to the tort system. H.R. Rep. No. 103-835
at 40. As the House Report explains: "Present, as well as future, asbestos personal
injury claimants would bring their actions against the trust . . . ." Id. Indeed, the
legislative history confirms that Congress contemplated that allclaims would be
paid by the trust:
[T]his statutory affirmation of the court's existing injunctiveauthority is designed to help asbestos victims receivemaximum value . . . . [A]ll asbestos-related claims and
demands must be made against the court-approved trust . . . .
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140 Cong. Rec. S1446-01, at S14464 (October 6, 1994) (remarks of Sen. Heflin). 2
The bankruptcy court recognized that Congress did not contemplate a plan
where claimants may elect to pursue claims in the tort system and simultaneously
proceed against the trust, with any judgments obtained by claimants to be paid only
by Appellants (i.e., those of Debtors insurers that were unable to agree to the Plan
Proponents settlement demands). Nor is there any indication that Congress
contemplated that Contribution Rights would be enjoined and extinguished in this
manner without compensation in full. The bankruptcy court acknowledged that
[s]ection 524(g) neither specifies the protection that is to be provided to parties
whose contribution claims are barred, nor does it state that no protections need be
provided to such parties. ER112.
Although the courts below understood that courts must fashion appropriate
safeguards for parties whose contribution claims are enjoined , ER112, they
erroneously ignored established precedent governing third-party bankruptcy
injunctions. Instead, they chose to attempt only to "mitigate against" the "harshest
consequences" of the Plan's elimination of Contribution Rights. ER118, ER128-
129. That was reversible error, as well as ineffective, given that more than 99% of
2 Appellants do not contend that it is never appropriate for a plan to allow claims tobe litigated in the tort system. For example, a plan may compensate third-party
insurers for any lost contribution rights, or allow claims to pass through the
bankruptcy entirely without fundamentally impairing and altering the rights ofthird parties. This Plan, however, uses the bankruptcy process as a means of
altering third party rights impermissibly.
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the underlying claims are resolved by settlement or dismissal, leaving no
mechanism for offsetting Appellants' lost Contribution Rights. See Joint Opening
Brief at 6, 47.3
B. Caselaw And Legislative History Regarding 524(g)(4)(B)(ii) Provide NoSupport for Plan Proponents' Position.
In analyzing 524(g)(4)(B)(ii), courts have focused only on the adequacy of
contribution to the trust by parties who will be protected by the 524(g)
channeling injunction, including the debtor. For example, in In re Quigley Co.,
Inc., 437 B.R. 102, 133 (S.D.N.Y. 2010), the court addressed whether a non-
debtor's contribution was "fair and equitable" and observed that on that issue "the
statute and legislative history [of 524(g)(4)(B)(ii)] are silent . . . ." Quigley, 437
B.R. at 133-134. The Quigley court concluded "that there must be a relationship
between the benefits received and the contributions made by the third-party that
receives the benefit of the injunction" and held that "the court should afford [third
parties] the protection of the injunction only if they contribute to the trust in
amounts that are consistent with their likely liability . . . outside of bankruptcy."
Id. (quotation omitted).
Discussing 524(g)(4)(B)(ii), the court in Congoleum concluded that [a]
3 Even if it were appropriate to assess the injunction under some other standard, as
the lower courts considered appropriate -- and which would contravene established
bankruptcy equitable jurisprudence -- reversal would still be required because thelower courts relied exclusively on patently inadmissible expert testimony of
Appellees' own lawyers. See Joint Opening Brief at 49-59.
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review of the case law suggests that finding that an injunction is fair and equitable
is closely tied to the value being contributed to the plan.4
In re Congoleum,
Corp., 362 B.R. 167, 180 (Bankr.D.N.J. 2007); accord In re W.R.Grace & Co.,
2013 WL 4734030 at *15 (3d Cir. Sept. 4, 2013)5; see also In re Combustion
Eng'g, Inc., 391 F.3d 190, 234, n.45 (3d Cir. 2004).
These cases, and the few others that addressed 524(g)(4)(B)(ii), provide no
guidance as to the impact, if any, of 524(g)(4)(B)(ii) on third-party contribution
rights. The legislative history likewise provides no guidance.
C. Plan Proponents' Argument As To 524(g)(4)(B)(ii) Should Be Rejected.
Although 524(g)(4)(B)(ii) is silent regarding Contribution Rights, that
silence may not be read as a limitation on the bankruptcy court's equitable
obligation to protect Appellants' rights against other non-debtors. [A]n
injunction is an equitable remedy. Weinberger v. Romero-Barcelo, 456 U.S. 305,
311 (1982). Section 524(g) is thus a grant of equity power to the bankruptcy court
4 That court found the contribution proposed by the debtor's parent not substantial
enough to satisfy 524(g)(4)(B)(ii). Congoleum, 362 B.R. at 198; accord Quigley,437 B.R. at 140.
5 Although the recent Grace decision cites the district court opinion below
regarding 524(g)(4)(B)(ii), see Grace, 2013 WL 4734030 at * 15 (citing In rePlant Insulation Co., Inc., 485 B.R. 203, 227 (N.D.Cal. 2012)), it does not address
what is required to enjoin contribution claims of one non-debtor against another
non-debtor. Rather, Grace involved the entirely different issue of contributionclaims against a debtor, and a plan that channeled such claims for payment by the
trust. Cf. In re Plant Insulation, 485 B.R. at 222-223.
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and to the district court, without whose approval the 524(g) injunction cannot be
valid and enforceable . . . . 11 U.S.C. 524(g)(3)(A).6
Indeed, 524(g)(1)(A)
underscores the equitable nature of the remedy by stating that the injunction may
issue if certain requisites are met; issuance of the injunction is not mandatory.
Appellees argue that 524(g)(4)(B)(ii) requires the court to find that a
524(g) injunction is 'fair and equitable' only with respect to the benefits afforded to
future asbestos claimants. Appellees' Joint Brief at 29 (italics in original,
footnote omitted). They assert that the statutory language demonstrates that
fairness to future asbestos claimants, but not enjoined insurers, is required. Id.
Both the bankruptcy court and the district court rejected Appellees' confiscatory
approach to Non-Settled Insurers' Contribution Rights. ER21-22 (district court);
ER117 (bankruptcy court); see also ER1099 at 2.
Appellees' reliance on 524(g)(4)(B)(ii) is misplaced. Even Appellees
acknowledge that "there is no prior decision of a court of appeal that upholds a
plan with these provisions." Oral Argument at 28:30. On the other hand, there is
ample precedent concerning the protections to be accorded in the bankruptcy
context when a third-party injunction, like that here, enjoins contribution rights
against other solvent non-debtor third parties. Nothing in 524(g) provides for the
6"[B]ankruptcy courts . . . are courts of equity and appl[y] the principles and rules
of equity jurisprudence." Young v. U.S., 535 U.S. 43, 50 (2002) (quoting Pepper v.
Litton, 308 U.S. 295, 304 (1939)).
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radical departure from established equity practice that Appellees suggest.
To the contrary, the Supreme Court made clear that such departures from
established equity jurisprudence should not be implied absent express
congressional directive. In Hecht v. Bowles, the Court observed that if Congress
desired to make such an abrupt departure from traditional equity practice, it would
have made its desire plain. 321 U.S. at 329-30. More recently, the Supreme
Court reaffirmed that a major departure from the long tradition of equity practice
should not be lightly implied, eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006) (quotation and citation omitted), particularly where, as here, the
statutory authorization for injunctive relief is merely permissive. Id. at 392;
accord Perfect 10, Inc. v. Google, 653 F.3d 976, 980 (9th Cir. 2011).
Similarly, in Dewsnup v. Timm, the Court refused to permit lien-stripping in
contravention of the long-established rule in effect prior to enactment of the 1978
Bankruptcy Code whereby liens on real property passed through bankruptcy
unaffected. The Court was "reluctant to accept arguments that would interpret the
Code, however vague the particular language under consideration might be, to
effect a major change in pre-Code practice that is not the subject of at least some
discussion in the legislative history. 502 U.S. at 419 (citations omitted). As the
Court observed, "[w]hen Congress amends the bankruptcy laws, it does not write
'on a clean slate.'" Id.; accord Hall v. U.S., 132 S.Ct. 1882, 1893 (2012). These
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principles have been recognized by this Court. See, e.g., Perfect 10, Inc., 653 F.3d
at 979-80; Owner Operator Indep. Drivers Ass'n, Inc. v. Swift Transp. Co., Inc,
367 F.3d 1108, 1111 (9th Cir. 2004).
Appellees' reliance on the silence of 524(g)(4)(B)(ii) as impliedly
superseding established practice directly contravenes the principles articulated in
Hecht, Dewsnup, and by this Court that such departures should not be implied
through Congressional silence.
Likewise, while the courts below recognized that Non-Settled Insurers'
Contribution Rights are entitled to protection, they erred in failing to apply
established equity jurisprudence regarding third-party bankruptcy injunctions.
Rather, disregarding applicable Supreme Court, Ninth Circuit and other Circuit-
level precedent, the courts below viewed the extinguishment of Contribution
Rights as governed solely by undefined principles of equity. ER13, ER22,
ER128. As the district court put it, [t]here is precious little law to suggest that
more is required. ER22. Writing on what it believed to be a clean slate, the
bankruptcy court only attempt[ed] to fashion conditions that mitigate against the
greatest hardships of the injunction and to eliminate[] the harshest consequences
of barring Equitable Contribution Claims against Settling Insurers. ER118,
ER128-129.
The district court acknowledged there was bankruptcy precedent governing
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issuance of third-party injunctions and the protection due to claims of third parties
(like Non-Settled Insurers here) whose claims against solvent non-debtors are
enjoined; however, it failed to follow the established Circuit-level precedent, such
as Dow Corning, 280 F.3d at 658, requiring the plan to provide an opportunity for
such third party to recover in full. ER22-23.
Dow Corning, while not an asbestos case, analyzed federal bankruptcy
equity jurisprudence to distill a set of mandatory requirements that must be
satisfied before a bankruptcy court can enjoin the claims of non-consenting third
parties against other non-debtors. Id. at 658. These requirements include the
mandate that the enjoined parties receive full compensation for the enjoined
claims. Id. at 657-58 (citing In re A.H. Robins, 880 F.2d 694, 701-702 (4th Cir.
1989); MacArthur Co. v. Johns-Manville Corp., 837 F.2d 89, 92-94 (2d Cir. 1988);
In re Continental Airlines, 203 F.3d 203, 214 (3d Cir. 2000)).
Similarly, in Robins, the Fourth Circuit upheld a third-party injunction in
connection with the Dalkon Shield tort trust, emphasizing that enjoined claimants
would be paid in full. 880 F.2d at 701. In MacArthur, the Second Circuit stressed
that the enjoined party, a co-insured under certain debtor policies, was adequately
protected because its claims were assertable against the settlement fund created by
disposition of the policies. 837 F.2d at 94. In Continental Airlines, the Third
Circuit reversed plan confirmation where plaintiffs were forced to forfeit their
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claims against non-debtors with no consideration in return. 203 F.3d at 211.
More recently, the Fifth Circuit declined to enforce a non-U.S. insolvency plan in a
chapter 15 case that cut off claims against a solvent third party without full
compensation. See In re Vitro S.A.B. de CV, 701 F.3d 1031, 1066-67, 1069 (5th
Cir. 2012). Accordingly, it was error for the courts below to ignore these basic
principles of federal bankruptcy and equity jurisprudence.
At oral argument, Appellees directed the Court to In re Thorpe Insulation as
a guidepost for this appeal. Oral Argument at 29:03-30:45. But Thorpe further
highlights the errors below. In Thorpe, this Court noted the potentially significant
economic consequences to insurers if their contribution claims were at risk of non-
payment:
The [confirmation] order further provides that in direct action
litigation, if the non-settling insurer is found to have a claimagainst a settling insurer for litigation costs, and they are
unable to recover those costs through a judgment reduction,
then the non-settling insurer can bring an action against the
Trust for that amount. . . . The right to recover costs is a rightprovided for by a contract negotiated between the settling
insurer and the non-settling insurer. This right is a legally
protected right.
Thorpe, 677 F.3d at 886-87. Thorpe included a trust backstop to enable non-
settled insurers to recover contribution due them that was not recovered through
judgment reduction or other credits.
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In sum, 524(g)(4)(B)(ii) cannot, as Appellees argue, be read to impliedly
displace the established equity practice concerning third-party injunctions. Such
an approach would directly contravene Supreme Court and Ninth Circuit
precedent. It would also be particularly egregious and inequitable here, where the
Appellants are the only parties shouldering the brunt of the financial burden of the
Debtor's asbestos claims and the only parties whose rights are adversely impaired
by the plan's injunctions.7
CONCLUSION
For the foregoing reasons, and for the reasons in Appellants' prior briefs, the
lower courts' rulings should be vacated and reversed.
Respectfully Submitted,
Dated: September 6, 2013 DENTONS U.S. LLP
By:/s/ Robert B. MillnerAttorney for ONEBEACON
INSURANCE COMPANY
And, for this brief only, on behalf of
the parties listed on Exhibit A.
7While the injunctions channel the claims of asbestos claimants, because the Plan
allows them to recover under the trust and to pursue their claims in the tort systemjust as they did prior to Plant's bankruptcy, they are no worse off by the injunctions;
in fact, they are better off.
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EXHIBIT A
This brief is submitted on behalf of the following parties in interest and their
counsel: American Home Assurance Company; Granite State Insurance Company,and Insurance Company of the State of Pennsylvania; Insurance Company of the
West; Safety National Casualty Corporation; Transport Indemnity Company;United States Fidelity and Guaranty Company; and United States Fire Insurance
Company.
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Addendum
Section 524(g)(4)(B)(ii) provides:
(B) Subject to subsection (h), if, under a plan of
reorganization, a kind of demand described in such plan is to
be paid in whole or in party by a trust described in paragraph
(2)(B)(i) in connection with which an injunction described inparagraph (1) is to be implemented, then such injunction shallbe valid and enforceable with respect to a demand of such
kind made, after such plan is confirmed, against the debtor or
debtors involved, or against a third party described insubparagraph (A)(ii), if --
. . .
(ii) the court determines, before entering the order
confirming such plan, that identifying such debtor ordebtors, or such third party (by name or as part of an
identifiable group), in such injunction with respect to suchdemands for purposes of this subparagraph is fair and
equitable with respect to the persons that mightsubsequently assert such demands, in light of the benefits
provided, or to be provided, to such trust on behalf of such
debtor or debtors or such third party.
11 U.S.C. 524(g)(4)(B)(ii).
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CERTIFICATE OF COMPLIANCE PURSUANT TO FEDERAL RULE OF
APPELLATE PROCEDURE 32(a) AND THIS COURT'S ORDER DATED
AUGUST 23, 2013 [DKT. NO. 75]
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), Ninth Circuit
Rule 32-1, and the Order of this Court dated August 23, 2013 [Dkt. No. 75], I
certify that the attached Appellants Supplemental Brief is proportionately spaced
in Times New Roman font, has a typeface of 14 points or more, and contains 2,788
words exclusive of the table of contents, table of citations, and this certificate of
counsel.
Dated: September 6, 2013
/s/ Christopher D. Soper
DENTONS US LLP233 S. Wacker Drive, Suite 7800
Chicago, IL 60606
Phone: (312) 876-8000
Facsimile: (312) 876-7934
Attorney for OneBeacon Insurance
Company
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