plant insurer briefs re contrib plans 48130923027b_1.pdf

7/27/2019 Plant insurer briefs re contrib plans 48130923027B_1.pdf

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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]

Case: 12-17466 09/06/2013 ID: 8772983 DktEntry: 79-1 Page: 1 of 21


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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


Deborah L. Stein

SIMPSON THACHER & BARTLETTLLP1999 Avenue of the Stars, 29th Floor

Los Angeles, CA 90067Phone: (310) 407-7500

Facsimile: (310) 407-7502Email:

[email protected]

Robert B. MillnerChristopher D. Soper

DENTONS US LLP233 S. Wacker Drive, Suite 7800

Chicago, IL 60606Phone: (312) 876-8000

Facsimile: (312) 876-7934


[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 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:

[email protected]

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:

[email protected]

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 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


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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