IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE IN RE: ACandS, Inc.

Armstrong World Industries, Inc. Combustion Engineering, Inc. The Flintkote Company Kaiser Aluminum Corp. Owens Corning US Mineral Products Company USG Corp. W.R. Grace & Co. Debtors. IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA IN RE: Mid-Valley, Inc. North American Refractories Co. Pittsburgh Corning Corp. Debtors. Case No.: 03-35592 Case No.: 02-20198 Case No.: 00-22876 Case No.: 02-12687 Case No.: 00-4471 Case No.: 03-10495 Case No.: 04-11300 Case No.: 02-10429 Case No.: 00-3837 Case No.: 01-2471 Case No.: 01-2094 Case No.: 01-1139

OBJECTION OF KAZAN, MCCLAIN, LYONS, GREENWOOD & HARLEY, WATERS & KRAUS LLP, STANLEY, MANDEL & IOLA, L.L.P., SIMMONS BROWDER GIANARIS ANGELIDES & BARNERD LLC, BERGMAN, DRAPER & FROCKT, GORI JULIAN, & ASSOCIATES, P.C., EARLY, LUCARELLI, SWEENEY & STRAUSS, COONEY & CONWAY, GEORGE & SIPES LLP, LIPSITZ & PONTERIO, LLC, BIFFERATO LLC, AND MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP, TO GARLOCKS MOTION TO INTERVENE FOR THE PURPOSE OF SEEKING ACCESS TO THE 2019 STATEMENTS Kazan, McClain, Lyons, Greenwood & Harley, Waters & Kraus LLP, Stanley, Mandel & Iola, L.L.P., Simmons Browder Gianaris Angelides & Barnerd LLC, Bergman, Draper & Frockt, Gori Julian & Associates, P.C., Early, Lucarelli, Sweeney & Strauss, Cooney & Conway, George & Sipes LLP, Lipsitz & Ponterio, LLC, Bifferato LLC, and Montgomery, McCracken, Walker & Rhoads, LLP, on their own behalf and on behalf of their respective predecessors (Certain Law

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Firm Objectors) file this Objection to Garlocks Motion to Intervene, filed on February 18, 2011, for the Purpose of Seeking Access to the 2019 Statements (the Objections), and respectfully state the following: I. PROCEDURAL HISTORY 1. On January 10, 2011, Garlock filed motions with the Court seeking to gain access to 2019 Statements, documents which this Court required be filed in a manner that specifically restricts their availability to the public. (Hereinafter, the Access Motions) 2. The Certain Law Firm Objectors, referenced above, filed Objections to the Access Motions on January 28, 2011 (the Objections). The Objections are incorporated herein by reference. 3. Oral argument was heard on the Access Motions by the Court on February 14, 2011. The arguments made by all objectors, including the Certain Law Firm Objectors, are also incorporated by reference. 4. At the February 14 hearing, the Court advised Garlock that its attempts to intervene in both the closed and open cases were procedurally defective. See 2/14/2011 Hrg. Tr. At 18:1 18.8. 5. Garlock has now filed motions to reopen the closed Chapter 11 cases and to intervene in the open Chapter 11 cases. A further hearing on these motions will be held on March 28, 2011. II. ARGUMENT: THE COURT SHOULD DENY THE MOTION TO INTERVENE AND CONTINUE ITS PROTECTION OF THE EXHIBITS TO THE 2019 STATEMENTS. 1. Although Garlock may have standing to intervene under this circuits jurisprudence as established in Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994), in all

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other respects, Pansy is distinguishable from the case at bar and fails to support Garlocks application. In fact, a closer analysis of Pansy and its progeny demonstrates that the Motions to Intervene should not be granted, but even if intervention is granted Garlocks Access Motions should be denied. 2. In Pansy, the court analyzed the right of a newspaper to access a settlement agreement resolving a civil rights suit between a plaintiff policeman and a governmental entity after the district court had ordered the agreement be kept confidential. 23 F.3d at 776. Significantly, the district court in Pansy entered the confidentiality order routinely, with no findings on the record, and no underlying rationale other than to facilitate the settlement. Id. at 786. The Third Circuit noted this with disapproval, stating, [d]isturbingly, some courts routinely sign orders which contain confidentiality clauses without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders.1 3. The Third Circuit then turned to the distinct question of whether the Confidentiality Order had been granted as a proper exercise of the courts discretion. Id. at 784. The court noted that the Supreme Court made clear that courts have inherent equitable power to grant confidentiality orders, whether or not such orders are specifically authorized by procedural rules. Id. at 785, citing Seattle Times Co. v. Rihinehart, 467 U.S. 20, 35 (1984). The court then analogized the issue before it to other protective orders used in

1. This routine practice of sealing settlements is no longer in use and is not comparable to this
Courts considered treatment of the exhibits to the 2019 Statements. Here, the Court fashioned a procedure to provide for broad and comprehensive compliance with the Rule, and at the same time ensure appropriate protection of the identities of law firm clients at a particular and nascent stage of the proceedings.

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litigation, such as over discovery materials, which require the moving parties to demonstrate that good cause exists for the order of protection. Id. at 786, citing Fed.R.Civ.P. 26(c); Smith v. Bic Corp., 869 F.2d 194, 199 (3d Cir.1989). 4. The court reasoned that protective orders over documents relating to all stages of litigation have comparable features and raise similar public policy concerns. Id. These features are the ability of the orders to offer litigants a measure of privacy, while balancing against this privacy interest the public's right to obtain information concerning judicial proceedings. The court concluded that whether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be demonstrated to justify the order. Id. 5. The court in Pansy described a non-exhaustive list of the factors the sealing court should consider as part of this good cause balancing test. These factors were recently cited with approval in E.E.O.C. v. Kronos Inc., 620 F.3d 287, 302 (3d. Cir. 2010). A discussion of the factors and their application here follows. 6. First, this court must consider whether the disclosure will violate any privacy interests or cause embarrassment. Id. at 302. In this case, the Certain Law Firms Objectors are asserting their clients interests in their ability to maintain as private the fact that the client entered into an attorney-client relationship for the purpose of pursuing recovery for their asbestos-related injuries. While Garlock correctly argues that named litigants, bankruptcy petitioners, and donors to federal election campaigns have all willingly and intentionally waived their right to privacy relating to these facts and circumstances, the clients whose names are attached to the 2019 Statements had not yet taken any step against the respective debtor entity beyond hiring attorneys to explore and preserve their

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rights. See, Transcript from December 3, 2009 Hearing, In re Pittsburgh Corning Corporation, No. 00-22876-JKF, (PCC Tr. 12/3/09), p. 120, lines 2-3 (The Court: To the extent that theyre on a 2019 statement, they may or may not be claiming a stake in the case.); compare Vassiliades v. Israely, 714 F.Supp. 604, 606 (D.Conn. 1989) (Every lawsuit has the potential for creating some adverse or otherwise unwanted publicity for the parties involved. It is simply one of the costs attendant to the filing of an action.). The names attached to the 2019 Statements are neither claimants nor parties as against the relevant debtor entity at the point that a 2019 Statement is filed and they have not assumed any costs attendant to the filing of an action. 7. Nor are the clients public figures with less right to claim freedom from the publics scrutiny of their private and public actions. Id. at 787, citing United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) ([T]he public has a substantial interest in the integrity or lack of integrity of those who serve them in public office.). Instead, the clients are more like the individuals at issue in the Smith case who had been listed as unidentified coconspirators in the Indictment but then named in the Bill of Particulars, which was placed under seal to protect their identities. In declining to unseal the Bill of Particulars, the court noted that the bill involved set forth a list of names that included those who could conceivably be considered as unindicted co-conspirators due to their alleged involvement in events included in the conspiracy. 776 F.3d at 1113, (emphasis supplied.). As the court noted, [t]his approach seriously exacerbated the risk of injury . Id. This analysis is on point here, as the clients listed in the exhibits attached to the Statements could conceivably be considered as claimants at some future point, but must be named prior to their official entry into the case.

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8. In fact, at the early stage of the bankruptcy proceeding in which the 2019 Statements are filed, the very fact that a client has consulted with and engaged an attorney is confidential information within the meaning of the Delaware Rules of Professional Conduct, R.P.C. 1.6 which states, Rule 1.6 (a) which states, in pertinent part, that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). The Court was correct in acting to protect the identities of the Certain Law Firm Objectors clients at that early stage of the proceedings and Garlock can point to no circumstances that have changed in a way to persuade the Court to amend its orders. 9. The next factor is whether the information is being sought for a legitimate purpose or an improper purpose. Garlock has incorrectly asserted that neither its intended use of the filings nor the purpose for which the filing was intended to serve has any bearing on this Courts determination of whether it has good cause to continue its protection of the identities of the clients of the Law Firms. (First, Your Honor, I would submit that Garlocks purpose is not relevant nor is the purpose of the Rule 2019 statements.) See 2/14/2011 Hrg. Tr. At 12.23 12.25. 10. However, the Third Circuit does not agree that the motive for seeking access is irrelevant. As this Court said, in making its determination of whether to continue a confidentiality order, a factor to consider is whether the information is being sought for a legitimate purpose or for an improper purpose. 23 F.3d at 787. 11. The purpose for which Garlock seeks access to the 2019 Statements is not legitimate, logical or sound. Garlock argues that the 2019 Statements can be used to prove that

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plaintiffs were filing claims against multiple debtors, or suing multiple defendants, without disclosing this joint liability in each case. Garlock relies on the fact that the 2019 Statements were verified, and, in some cases include attorneys statements of personal knowledge. However, all the participants in the process understood that this language could not be fairly, or even possibly, construed as an attorney having personal knowledge of the source of his clients injuries. In the face of these well-known facts of bankruptcy and asbestos life, Garlocks insistence that these statements have evidentiary value that could be used to support a determination that attorneys were lying in one (or both) forums is disingenuous. This language which, in most cases, tracks the language of 2019 is designed only to disclose and verify representation of the individuals listed, and not to place the attorney in a position of fact witness regarding the future determination of the validity or value of his clients claims. Garlocks intended use of these Statements is not legitimate and does not warrant denying the Law Firm clients the protection the Court afforded them,2
2

At the February 14 hearing on the Access Motions, Garlocks counsel argued that the Objectors lacked standing to object. See 2/14/2011 Hrg. Tr. at 22.4 22. 10. (Only a person threatened with a qualifying injury has standing to object, the Committees in these cases, Your Honor, who filed a spirited objection, they have and are threatened with no injury at all. So theyre not persons aggrieved. They had no standing and the same would be true for the debtor Pittsburgh Corning, which has filed an objection.) Garlocks position on standing underscores the multitude of problems that Garlocks motions raise. The 2019 Statements are statements of representation by the law firms. The intended misuse of those Statements and the intended gotcha nature of the verification is very much an injury to them. In addition, the law firms understood that the 2019 Statement was to be comprehensive in scope; it is the lawyers who determined who should be included in the confidential exhibit. As to the personal nature of the information contained thereon, if the Law Firms cant represent the interests of their clients in this matter, then each of the thousands of clients in the 2019 Statements will have to be noticed and given an opportunity to contest the motions themselves. It is clear that the Court, in casting as broad a net as it did, in fashioning the requirements for the 2019 Statements, never envisioned that the information in the protected exhibits would be exposed in this manner, for this purpose, and at this cost in time and resources.

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6.

The next factor this Court should consider is whether confidentiality is being sought with respect to information important to public health and safety, as these circumstances would weigh against confidentiality. Pansy, 23 F.3d at 787. No such information exists in this case.

7.

The Court must also determine whether the sharing of information among litigants will promote fairness and efficiency. 23 F.3d at 787. The disclosure of the information sought here will not promote either value. The parties who require access to the information have access consistent with the needs of the chapter 11 case. Disclosure of the identity of individuals represented by a law firm in a case that has concluded when those individuals took no action in the case will promote only further efforts by nonparties to attempt to misuse documents filed in the process, will create inefficiency and confusion, and will be patently unfair to the Law Firms who believed that their clients identifying information would be protected by the Court until they became claimants who had waived this protection.

8. In weighing the interest in privacy against the publics right to know, the Court must also consider whether a party benefitting from the order of confidentiality is a public entity or official and whether the case involves issues important to the public. See Pansy, 23 F.3d at 788. ([I]f a case involves private litigants and concerns matters of little legitimate public interest, that should be a factor weighing in favor of maintaining an order of confidentiality. Compare In re Cendant Corp., 260 F.3d 183, 192 93 (3d. Cir. 2001) (process of selecting lead counsel in a class action securities case should not have been sealed as the choice of counsel had significant importance to the class members and the public at large.) In this case, the public has no interest in the identity of the clients of the

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Certain Law Firm Objectors at the time the 2019 Statements were filed. Their identity was revealed to the Court and the parties participating in the administration of the estate only for the purpose of avoiding conflicts and ensuring the authority of counsel to act for certain individuals; these issues are of minimal interest to the public at large. All the factors identified by the Third Circuit, including this factor, weigh in favor of maintaining confidentiality. 9. Importantly, the Pansy court also noted that in cases where a large volume of material is at issue, as it is in this case, the court may construct a broad umbrella protective order upon a threshold showing by the movant of good cause. Id. at 787, citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987). In that instance, the opposing party would have the opportunity to indicate precisely which documents it believed not to be confidential, and the party seeking to maintain the seal would have the burden of proof with respect to those documents. Id. As applied to this case, the Court initially found that there was good cause to provide protection for the Law Firm Clients and created a mechanism that would do so, allowing for access with the Courts permission, and in a manner that would be consistent with the purposes of Rule 2019. At the time the information was required to be produced, it was never imagined that it would be the subject of a widespread fishing expedition based on an unfounded and unproven suspicion of fraud and abuse in the system. 10. The case before this Court is entirely distinct from the facts in Pansy. As the Third Circuit said in remanding the case, This case involves a governmental body, a public official and a Settlement Agreement which is likely available under the Pennsylvania

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Right to Know Act. Given these facts, it would be unusual if on remand the district court were to find that circumstances exist which justify the Order of Confidentiality being maintained over the Settlement Agreement, but we do not foreclose that determination. Id. at 792. 11. The presumption of access varies with circumstance. As one court has noted, a strong presumption applies in cases where the accessibility of documents directly impacted and was crucial to the district court's exercise of its Article III duties. See, United States v. Kushner, 349 F.Supp.2d 892, 903 -904 (D.N.J. 2005) (collecting cases). Other documents that are not essential to the courts exercise of its authority have less relevance to the courts functioning, less interest to the public, and are more easily provided privacy and protection. Viewed through this lens, it is clear why all the factors described above weigh in favor of confidentiality. The documents in question have no bearing on how the bankruptcy cases at issue were ultimately administered and were peripheral to the Courts function in overseeing the administration of the plans and the creation of the trusts. See, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164-65 (3d Cir. 1993) (refusing to extend public access to discovery motions and materials). 12. As the Pansy court said, [d]iscretion should be left with the court to evaluate the competing considerations in light of the facts of individual cases. By focusing on the particular circumstances in the cases before them, courts are in the best position to prevent both the overly broad use of [confidentiality] orders and the unnecessary denial of confidentiality for information that deserves it .... 13. In the instant case, all the factors weigh in favor of continuing the security the Court has given to the Certain Law Firm Objectors clients by requiring that their information be

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filed in a way that affords them protection from prying eyes, when they were at a point in the litigation where they had not yet become parties. As these clients progressed in the cases, and became claimants, their identifying information was revealed through the appropriate process. This process fulfills the information needs of all the parties, and preserves the confidentiality of the clients who do not ultimately pursue a claim against the applicable debtor/successor trust. 14. Garlocks motions to intervene are untimely, wasteful, and not in the service of any legitimate interest. The Court should deny the motions. If the Court does permit Garlock to intervene in these cases, the Court should deny the Access Motions. III. JOINDER To the extent appropriate, the Certain Law Firm Objectors hereby join in the arguments advanced by any other party in opposition to the Motions for Permission to Intervene and incorporate those arguments, by reference, as if fully set forth herein.

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IV.

CONCLUSION AND PRAYER FOR RELIEF WHEREFORE, for the foregoing reasons, the Certain Law Firm Objectors respectfully

urge this

Court to deny the Motions for Permission to Intervene and the Access Motion and

order the Debtor to maintain the confidentiality of the Rule 2019 Statements, and grant such other and further relief as to which the Certain Law Firm Objectors may be entitled.

Dated: March 11, 2011

/s/ Natalie D. Ramsey Natalie D. Ramsey (DE 5378) /s/ Laurie A. Krepto Laurie A. Krepto (DE 4109) MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP 1105 North Market Street, Suite 1500 Wilmington, DE 19801 Telephone: (302-504-7830) Facsimile: (302-504-7820)

/s/ Natalie D. Ramsey Natalie D. Ramsey (PA 41412) /s/ Laurie A. Krepto Laurie A. Krepto (PA 76313) Ellen C. Brotman (PA 71775) MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP 123 S. Broad Street Philadelphia, PA 19109 Telephone: (215-772-1500) Facsimile: (215-772-7620) Counsel to the above-named firms

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