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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, 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, Appellants, v. PLANT INSULATION COMPANY, et al., Appellees. On Appeal from the United States District Court for the Northern District of California, Hon. Richard Seeborg, Case No. 12-1887 RS APPELLANTS SUPPLEMENTAL BRIEF [COUNSEL LISTED ON FOLLOWING PAGE]

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OneBeacon Insurance Company Paul E.B. Glad DENTONS US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Phone: (415) 882-5000 Facsimile: (415) 882-0300 Email: paul.glad@dentons.com

United States Fidelity and Guaranty Company Andrew T. Frankel SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017-3954 Phone: (212) 455-2000 Facsimile: (212) 455-2502 Email: afrankel@stblaw.com Deborah L. Stein SIMPSON THACHER & BARTLETT LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067 Phone: (310) 407-7500 Facsimile: (310) 407-7502 Email: dstein@stblaw.com Insurance Company of the West Valerie A. Moore Eugenie Gifford Baumann HAIGHT, BROWN & BONESTEEL LLP 555 South Flower Street, 45th Floor Los Angeles, CA 90071 Phone: (213) 542-8000 Facsimile: (213) 542-8100 Email: vmoore@hbblaw.com ebaumann@hbblaw.com American Home Assurance Company Insurance Company of the State of Pennsylvania Granite State Insurance Company Michael S. Davis ZEICHNER ELLMAN & KRAUSE LLP

Philip A. OConnell, Jr. DENTONS US LLP 101 Federal Street, Suite 2750 Boston, MA 02110 Phone: (617) 235-6802 Facsimile: (617) 235-6884 Email: philip.oconnelljr@dentons.com

Robert B. Millner Christopher D. Soper DENTONS US LLP 233 S. Wacker Drive, Suite 7800 Chicago, IL 60606 Phone: (312) 876-8000 Facsimile: (312) 876-7934 Email: robert.millner@dentons.com christopher.soper@dentons.com

American Home Assurance Company Insurance Company of the State of Pennsylvania Granite State Insurance Company Randall J. Peters R. Jeff Carlisle LYNBERG & WATKINS P.C.

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International tower Plaza 888 S. Figueroa Street, 16th Floor Los Angeles, CA 90017-5465 Phone: (213) 624-8700 Facsimile: (213) 892-2763 Email: rpeters@lynberg.com jcarlisle@lynberg.com Transport Insurance Company Ray L. Wong DUANE MORRIS LLP One Market, Spear Tower Ste 2000 San Francisco, CA 94105-1104 Telephone: 415-957-3000 Facsimile: 415-957-3001 Email: rlwong@duanemorris.com

1221 Avenue of the Americas New York, NY 10036 Phone: (212) 826-5311 Facsimile: (212) 753-0396 Email: mdavis@zeklaw.com

United States Fire Insurance Company Lawrence A. Tabb MUSICK, PEELER & GARRETT One Wilshire Blvd. #2000 Los Angeles, CA 90017 Tel: 213-629-7600 Fax: 213-624-1376 Email: l.tabb@mpglaw.com Chad Westfall MUSICK, PEELER & GARRETT 100 Montgomery Street, Suite 2525 San Francisco, CA 94104 Tel: 415-281-2030 Fax: 415-281-2010 Email: c.westfall@mpglaw.com

Safety National Insurance Company Philip R. Matthews Paul J. Killion (State Bar No. 124550) Duane Morris LLP One Market, Spear Tower, Suite 2200 San Francisco, CA 94105-1104 Tel: 415.957.3000 Fax: 415.957.3001 Email: prmatthews@duanemorris.com pjkillion@duanemorris.com United States Fire Insurance Company Clinton E. Cameron Seth M. Erickson TROUTMAN SANDERS LLP 55 West Monroe Street Suite 300 Chicago, IL 60603-5758 Tel: 312-759-1925 Fax: 773-877-3719 Email: clinton.cameron@troutmansanders.com seth.erickson@troutmansanders.com

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TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................1 ARGUMENT .........................................................................................................3 A. B. C. Section 524(g)(4)(B)(ii) Does Not Contemplate Tort Actions That Generate Contribution Claims Among Insurers............................................................3 Caselaw And Legislative History Regarding 524(g)(4)(B)(ii) Provide No Support for Plan Proponents' Position...........................................................5 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 ii

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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 OTHER AUTHORITIES 140 Cong. Rec. S1446-01, at S14464 (October 6, 1994) (remarks of Sen. Heflin) ...............................................................................................................3 H.R. Rep. No. 103-835 ...........................................................................................3

iii

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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-

Capitalized terms herein are defined in Appellants' Joint Opening Brief or the Plan. 1

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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. 2

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ARGUMENT A. Section 524(g)(4)(B)(ii) Does Not Contemplate Tort Actions That Generate Contribution 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 JohnsManville 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 all claims would be paid by the trust: [T]his statutory affirmation of the court's existing injunctive authority is designed to help asbestos victims receive maximum 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, ER128129. 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 to be 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 of third parties. This Plan, however, uses the bankruptcy process as a means of altering third party rights impermissibly. 4

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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 No Support 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 nondebtor'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 the lower courts relied exclusively on patently inadmissible expert testimony of Appellees' own lawyers. See Joint Opening Brief at 49-59. 5

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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

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 re Plant 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 contribution claims 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. 6

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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

"[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)). 7

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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 8

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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 Circuitlevel 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 9

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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 10

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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 nonpayment: The [confirmation] order further provides that in direct action litigation, if the non-settling insurer is found to have a claim against 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 right provided 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 nonsettled insurers to recover contribution due them that was not recovered through judgment reduction or other credits.

11

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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. Millner Attorney for ONEBEACON INSURANCE COMPANY And, for this brief only, on behalf of the parties listed on Exhibit A.

While 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 system just as they did prior to Plant's bankruptcy, they are no worse off by the injunctions; in fact, they are better off. 12

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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 in paragraph (1) is to be implemented, then such injunction shall be 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 in subparagraph (A)(ii), if -... (ii) the court determines, before entering the order confirming such plan, that identifying such debtor or debtors, or such third party (by name or as part of an identifiable group), in such injunction with respect to such demands for purposes of this subparagraph is fair and equitable with respect to the persons that might subsequently 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 LLP 233 S. Wacker Drive, Suite 7800 Chicago, IL 60606 Phone: (312) 876-8000 Facsimile: (312) 876-7934 Attorney for OneBeacon Insurance Company