In re: Flintkote Company et al

Filing 47

MEMORANDUM OPINION 1 Notice of APPEAL FROM BANKRUPTCY COURT appealing the Order entered on 12/21/12. Signed by Judge Leonard P. Stark on 7/10/2014. (rpg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

INRE:
THE FLINTKOTE COMPANY, et al.,

Ban1a. Case No. 04-11300-JKF

IMPERIAL TOBACCO CANADA LIMITED,
and CERTAIN WHOLLY OWNED
SUBSIDIARIES, INCLUDING GENSTAR
CORPORATION,
Appellants,
Civ. No. 13-227-LPS

v.
THE FLINTKOTE COMP ANY,
FLINTKOTE MINES LIMITED, THE OFFICIAL
COMMITTEE OF ASBESTOS PERSONAL
INJURY CLAIMANTS, and JAMES J.
McMONAGLE, in his capacity as FUTURE
CLAIMANTS REPRESENTATIVE,
Appellees. 1

Stephen M. Miller, Esq. and Eric J. Monzo, Esq., of MORRIS JAMES LLP, Wilmington,
Delaware.
L. Joseph Loveland, Esq., Mark M. Maloney, Esq. and Thaddeus D. Wilson, Esq., of KING &
SPALDING LLP, Atlanta, Georgia.
Ashley C. Parrish, Esq. and Daniel S. Epps, Esq., of KING &SPALDING LLP, Washington, DC.

Counsel for Appellants Imperial Tobacco Canada Limited and Certain Wholly Owned
Subsidiaries, Including Genstar Corporation

1

The above-captioned appellees, The Flintkote Company ("Flintkote"), Flintkote Mines
Limited ("Mines" and, together with Flintkote, the "Debtors"), the Official Committee of
Asbestos Personal Injury Claimants ("ACC"), and James J. McMonagle, in his capacity as the
Future Claimants Representative ("FCR"), will be referred to collectively as the "Plan
Proponents."

Kevin T. Lantry, Esq., Jeffrey E. Bjork, Esq., Christina M. Craige, Esq. and Anna Gumport, Esq.,
of SIDLEY AUSTIN LLP, Los Angeles, California.
Jonathan F. Cohn, Esq., Ryan C. Morris, Esq. and Brian P. Morrissey, Esq., of SIDLEY AUSTIN
LLP, Washington, DC.
Laura Davis Jones, Esq. and James E. O'Neill, Esq., of PACHULSKI STANG ZIEHL & JONES
LLP, Wilmington, Delaware.

Counsel for Appellees The Flintkote Company and Flintkote Mines Limited

Elihu Inselbuch, Esq. and Rita C. Tobin, Esq., of CAPLIN & DRYSDALE, CHARTERED, New
York, New York.
Peter Van N. Lockwood, Esq. and Ronald E. Reinsel, Esq., of CAPLIN & DRYSDALE,
CHARTERED, Washington, DC.
Mark T. Hurford, Esq., of CAMPBELL & LEVINE, LLC, Wilmington, Delaware.

Counsel for Appellee the Official Committee ofAsbestos Personal Injury Claimants

James L. Patton, Jr., Esq. and Edwin J. Harron, Esq., ofYOUNG CONAWAY STARGATT &
TAYLOR, LLP, Wilmington, Delaware.
Reginald W. Jackson, Esq., ofVORYS, SATER, SEYMOUR & PEASE LLP, Columbus, Ohio.
John W. Read, Esq., ofVORYS, SATER, SEYMOUR & PEASE LLP, Cleveland, Ohio.

Counsel for Appellee James J McMonagle, in his capacity as Future Claimants '
Representative

MEMORANDUM OPINION

July 10, 2014
Wilmington, Delaware

STARK, U.S. District Judge: 2
I.

INTRODUCTION
This bankruptcy appeal involves objections to the Confirmation Order and Opinion

entered in In re The Flintkote Company (Bankr. Case No. 04-11300-JKF), as well as a request for
affirmance of a bankruptcy Plan. 3 For the reasons discussed, the Court will overrule all
objections filed by the lone objector, Imperial Tobacco Canada Limited and certain of its wholly
owned subsidiaries, including, without limitation, Genstar Corporation (collectively, "ITCAN"),
adopt the Bankruptcy Court's rulings - including its Findings of Fact and Conclusions of Lawand affirm confirmation of the Plan, including its § 524(g) "channeling injunction."4

2

Judge Joseph J. Farnan, Jr., now retired, was originally assigned as the District Judge
handling matters related to the Flintkote bankruptcy case.
3

Unless otherwise specified: (i) all docket item numbers may be found in Civ. No. 13227-LPS; and (ii) all citations to statutes in this Memorandum Opinion are to the Bankruptcy
Code, Title 11 of the United States Code.
4

"Chapter 11 bankruptcies have employed a statutory mechanism created by 11 U.S.C. §
524(g) to resolve massive asbestos liability and to evaluate claims and allocate payments to
current and future asbestos claimants. When this provision's requirements are satisfied, the
bankruptcy court may issue an injunction channeling all current and future claims based on the
debtor's asbestos liability to a personal injury trust." In re Federal-Mogul Global, Inc., 684 F.3d
355, 357 (3d Cir. 2012).
1

II.

BACKGROUND 5
A.

Plan Confirmation

On October 25-26, 2010 and September 12, 13, and 19, 2011, the Bankruptcy Court held
confirmation hearings related to the Amended Joint Plan of Reorganization in Respect of The
Flintkote Company and Flintkote Mines Limited (as modified November 16, 2011). On
December 21, 2012, the Bankruptcy Court entered the following:
(1) Findings of Fact, (2) Conclusions of Law, (3) an Order and
Notice of Certain Bar Dates, and (4) an Order Regarding
Confirmation of the Amended Joint Plan of Reorganization in
Respect of The Flintkote Company and Flintkote Mines Limited
(as Modified November 16, 2011), In re The Flintkote Company,
Bankr. Case No. 04-11300 (Bankr. D. Del. Dec. 21, 2012) [Bankr.
D.I. 7254] ("Confirmation Order"); and
Memorandum Opinion Overruling Objections to the Amended
Joint Plan of Reorganization, Confirming Plan and Recommending
the Affirmation of Confirmation and of the § 524(g) Injunction, In
re The Flintkote Company, Bankr. Case No. 04-11300 (Bankr. D.
Del. Dec. 21, 2012) [Bankr. D.I. 7253; 486 B.R. 99 (Bankr. D. Del.
2012)] ("Confirmation Opinion").
B.

The Appeal

ITCAN's appeal is addressed not only to the Confirmation Order and Confirmation
Opinion, but also to "all orders and rulings adverse to ITCAN that were incorporated into,
merged into, and/or relied upon in rendering the Confirmation Order and Confirmation Opinion."
(D.I. 1 at 2; see also D.I. 2 Ex. A)

5

Because the Court writes primarily for the benefit of the parties, who are well acquainted
with this mass tort asbestos bankruptcy case and who have patiently awaited decision after a
lengthy bankruptcy plan confirmation (and appellate) process, the Court presumes reader
familiarity with the pertinent background facts and case history. Much additional and helpful
background is provided in the Bankruptcy Court's extensive Memorandum Opinion. See In re
Flintkote Co., 486 B.R. 99 (Bankr. D. Del. 2012) ("Mem. Op.").
2

1.

Alter E1:0 Claim

The Bankruptcy Court denied ITCAN's motion for leave to file an out-of-time proof of
claim relating to potential alter ego liability (the "Alter Ego Claim"). ITCAN sought review of
that order in an appeal to this Court. (See Civ. No. 11-00063-LPS D.I. 1) This Court held that
the prior order was not a final order pursuant to 28 U.S.C. § 158(a)(l) and that ITCAN failed to
meet the standards for interlocutory review set out in§ 158(a)(3). On May 21, 2012, this Court
dismissed the appeal for lack of jurisdiction. (Id. D .I. 24) After ITC AN appealed this ruling to
the Third Circuit (see id. D.I. 26), the parties on January 30, 2013 jointly requested that the
appeal be dismissed without prejudice (see id. D.I. 29). By that point, this Court had obtained
jurisdiction to review the Alter Ego Claim in the context of its review of the Confirmation Order.

2.

Section 107 Claim

In its second ruling- embodied in (a) the Memorandum Opinion and (b) the related Order
Sustaining Debtors' Objection to Claim No. 2262 Filed By Imperial Tobacco Canada Limited
and Overruling ITCAN's Objection to Plan Confirmation (Bankr. Case No. 04-11300 (Bankr. D.
Del. Oct. 3, 2011) [collectively Bankr. D.I. No. 6227])- the Bankruptcy Court disallowed
ITCAN' s proof of claim for expenses incurred investigating the Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. claim. 6
ITCAN appealed the Bankruptcy Court's decision to this Court. (See Civ. No. 11-01299-LPS
D.I. 1) This Court dismissed ITCAN's appeal without prejudice to permit the issue raised in it to
be considered in conjunction with the instant appeal.

6

CERCLA § 107(a) allows private parties to seek compensation for the costs of
remediation from parties that are statutorily responsible for contamination.
3

3.

Appeal of Plan Confirmation

ITCAN, the lone remaining objector to the Plan, now seeks this Court's review of the
Confirmation Opinion and Confirmation Order pursuant to 28 U.S.C. § 158 and Bankruptcy
Rules 8001, et seq. (See D.I. 10 at 2, 13; D.I. 12) In tum, the Plan Proponents request affirmance
pursuant to§ 524(g)(3)(A). (See D.I. 10 at 2; D.I. 12) ITCAN, of course, opposes affirmance.

(See D.I. 10 at 2)
All aspects ofITCAN's appeal are fullybriefed. 7 The Court heard oral argument on July
31, 2013. (See D.I. 36 ("Tr."))

III.

LEGAL STAND ARDS
Appeals from the Bankruptcy Court to this Court are governed by 28 U.S.C. § 158.

Pursuant to§ 158(a), district courts have mandatory jurisdiction to hear appeals "from final
judgments, orders, and decrees" and discretionary jurisdiction over appeals "from other
interlocutory orders and decrees." 28 U.S.C. § 158(a)(l) and (3). "An order confirming a
Chapter 11 plan is considered a final, appealable order." In re Kaiser Aluminum Corp., 343 B.R.
88, 93 (D. Del. 2006) (citing Eastern Minerals & Chems., Co. v. Mahan, 225 F .3d 330, 336 n.11
(3d Cir. 2000)).
In conducting its review of the issues on appeal, this Court reviews the Bankruptcy

Court's findings of fact for clear error and exercises plenary review over questions oflaw. See

Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999). "A
finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court

7

The extensive briefing in this matter included not only the pre-hearing submissions (D.I.
16-18, 28-32, 35) but also additional post-hearing letters and briefs (D.I. 37-38, 40-46).
4

on the entire evidence is left with the definite and firm conviction that a mistake has been
committed." United States v. US. Gypsum Co., 333 U.S. 364, 395 (1948). The Court must
"break down mixed questions of law and fact, applying the appropriate standard to each
component." Meridian Bank v. Alten, 958 F .2d 1226, 1229 (3d Cir. 1992).

IV.

DISCUSSION
The parties agree that review by this Court is warranted, as the Confirmation Order is a

final order that resolves all disputed issues between the Plan Proponents and ITCAN. (See Civ.
No. 11-01299-LPS D.I. 15) It is likewise evident that the Court now has jurisdiction over
ITCAN's appeals relating to the Alter Ego Claim and the§ 107 Claim. (See id.) The parties
disagree over whether ITCAN has standing and over the proper resolution of the issues presented
on appeal.

A.

Standin~

The Bankruptcy Court found that ITCAN lacks standing, for reasons summarized by the
Plan Proponents:
[T]he Bankruptcy Court held that ITCAN lacks standing to object
to the Plan. A22-43 (Mem. Op. 11-32). The court determined that
ITC AN has no creditor standing, because all of its asserted claims
were untimely or disallowed. A26-32 (id. at 15-21 ). The
Bankruptcy Court also concluded that ITCAN does not otherwise
have standing because confirmation would not impair ITC AN' s
rights or defenses. A33-43 (id. at 22-32). As the court explained,
"ITCAN has not shown an injury caused by the Plan for which this
Court can provide a remedy." A43 (id. at 32).
(D.I. 28 at 21)
ITCAN argues that the Bankruptcy Court erred because (i) ITCAN is a creditor, and thus,
by definition, a "party in interest" with standing to object to confirmation; and (ii) even if it is

5

not a creditor of the estate, it is still a "party in interest" because the Plan impairs various rights
and defenses it has with respect to Flintkote and with respect to individual asbestos plaintiffs in
the ongoing "dividend recovery litigation." (D.I. 16 at 17) ITCAN elaborates that "because [it]
is entitled to prevail in its appeal of both the bankruptcy court's denial ofleave to file its alter ego
contribution claim and the bankruptcy court's disallowance of its CERLCA § 107 claim, ITCAN
is a creditor of Flintkote's estate and, as a creditor, plainly has standing." (Id. at 18)
The Plan Proponents respond that ITC AN' s asserted injuries are wholly speculative and
incapable ofredress. (D.I. 28 at 3-4) Further, according to the Plan Proponents, even ifITCAN
met the minimum constitutional requirements for standing, ITCAN fails to satisfy the additional
prudential and appellate standing requirements "because it is not directly affected by the
confirmation order and seeks merely to assert the rights of third parties." (Id. at 25) The Plan
Proponents cite In re WR. Grace & Co., 532 Fed. Appx. 264, 268 (3d Cir. 2013), for the
proposition that a putative creditor has no standing to object to a§ 524(g) reorganization plan
based on speculative requests for claims of contribution and indemnity. (See D.I. 35)
ITCAN has the burden to show that it has constitutional, prudential, and appellate
standing. To have constitutional standing, ITCAN must demonstrate (1) a concrete and
particularized injury, (2) a causal connection between the injury and the conduct complained of,
and (3) redressability. See Lujan v. De.fenders of Wildlife, 504 U.S. 555, 560-61 (1992). 8 To
have prudential standing, ITCAN "must assert [its] own legal rights and interests, and cannot rest

8

A party must also have "standing under the Bankruptcy Code," but the test for being a
"party in interest" under the Bankruptcy Code is "coextensive" with the requirements for "Article
III standing." In re Global Indus. Techs., Inc., 645 F.3d 201, 211 (3d Cir. 2011); see also 11
U.S. C. § 1109(b) (defining "party in interest").
6

[its] claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S.
490, 499 (1975); see also Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000). To have
appellate standing, ITCAN must be a "person aggrieved," that is a party "whose rights or
interests are directly and adversely affected pecuniarily by an order of the bankruptcy court." In
re PWS Holding Corp., 228 F.3d 224, 248-49 (3d Cir. 2000) (internal quotation marks and

citation omitted).
The Court agrees with the Bankruptcy Court that ITCAN lacks even constitutional
standing (so it need not address whether ITCAN also lacks prudential and/or appellate standing).
The future Alter Ego Claim, based on a theory of indemnity or contribution, is speculative, not
"actual and imminent."9 Nor does the§ 107 Claim establish standing because, as the Bankruptcy
Court concluded, ITCAN's (i) CERCLA claim for contribution and indemnity related to cleanup
costs [§113] under§ 502(e)(l)(B) is contingent and thus properly disallowed; and (ii) claim for
attorneys' fees must be disallowed because such fees are not recoverable under§ 107. (See Mem
Op. at 21)
Nevertheless, given that Plan confirmation is at stake, the importance of the issues
presented, the extensive resources the parties have devoted to these issues, and the fact that the
Court of Appeals may disagree with this Court and the Bankruptcy Court, the Court will address
the issues presented in this appeal. This is consistent with the approach the Bankruptcy Court
took. (See D.I. 28 at 19) Moreover, given that the Plan includes a channeling injunction under
11 U.S.C. § 524(g), this Court has an obligation to review the lawfulness of the Plan. See In re

9

The Court further agrees with the Bankruptcy Court's determination that to the extent
Flintkote has an alter ego claim against ITCAN, Flintkote is permitted to formally abandon any
interest in such a claim through the Plan. (See A37-43)
7

Combustion Eng'g., 391F.3d190, 234 n.45 (3d Cir. 2004).
B.

Claims and Demands

ITCAN contends that the Bankruptcy Court erred in confirming the Plan pursuant to§§
524(g) and 1129 of the Bankruptcy Code based on an erroneous determination that the
reorganized Flintkote would be subject to "substantial future demands," a requirement of§
524(g)(2)(B)(ii)(I). (D.1. 2 Ex. A; Tr. at 6) ITCAN asserts the Bankruptcy Court erred in its
legal interpretation of the phrase "substantial future demands" and further erred by finding, as a
factual matter, that Flintkote faces such "substantial future demands." (See, e.g., D.I. 16 at 2343; D.I. 31 at 3-11) As the Plan Proponents summarize:
[ITCAN's objections] focused on§ 524(g)'s requirement that the
debtor show it will likely be subject to "substantial future
demands" from asbestos victims. 11 U.S.C. § 524(g)(2)(B)(ii)(I).
From the inception of§ 524(g), courts have permitted plans to
satisfy this requirement by showing that there will be a substantial
number of future demands from asbestos victims who were
previously exposed but are not yet symptomatic. This approach
was consistent with Congress's central concern in enacting
§ 524(g): namely, to protect and equitably compensate asbestos
victims who were previously exposed but are not yet symptomatic.
[Still], ITCAN argued that such exposed-but-not-yet-symptomatic
individuals cannot make future demands. According to ITCAN,
the only future demand holders are those asbestos victims who are
exposed for the first time after confirmation, even though asbestos
production in this country ended decades ago. ITCAN contends
that its novel interpretation of§ 524(g) is compelled by the Third
Circuit's decision in Jeld-Wen, Inc. v. Van Brunt (In re
Grossman's Inc.), 607 F.3d 114, 125 (3d Cir. 2010) (en bane),
even though Grossman's did not address the definition of
"substantial future demands."
(D.I. 28 at 19-20)
The Court agrees with the Bankruptcy Court that exposed-but-asymptomatic individuals

8

have potential "future demands." (Mem. Op. at 33-34, 36-41, & n.66; see also D.I. 16 at 34)
Congress did not make the terms "claim" and "demand" mutually exclusive, as ITCAN suggests.
(See Mem. Op. at 40-41) ITCAN points to§ 524(g)(5), which states in relevant part that "the

term 'demand' means a demand for payment, present or future, that ... was not a claim during
the proceedings leading to the confirmation of a plan ofreorganization." 11 U.S.C.

§ 524(g)(5)(A) (emphasis added). ITCAN argues that this provision shows that "demands"
cannot be "claims." However, as pointed out by the Plan Proponents:
[B]y its terms, § 524(g)(5) excludes from the definition of
"demand" only "claim[s] during the proceedings." The natural
reading of this phrase refers to claims that were actually raised or
identified "during the proceedings," as opposed to claims that
merely could have been raised if only the asbestos victims had
known about them.
(D.1. 28 at 27) Furthermore, ITCAN's interpretation "does not provide protection for those
people who are exposed [to asbestos] but asymptomatic" (Tr. at 69), undermining a key aim of
§ 524(g). See Grossman's, 607 F.3d at 126 n.12; Combustion Eng'g, 391 F.3d at 234 n.45.
"Under ITCAN's construction, asbestos victims who have been exposed but are currently
asymptomatic would be excluded from a key statutory protection. Section 524(g)(4)(B)(ii)
provides for the appointment of 'a legal representative for the purpose of protecting the rights of
persons that might subsequently assert demands.' Under ITCAN's theory, the only asbestos
victims who would be covered by this provision are those who are not yet exposed. Anyone who
has been exposed would be left out in the cold." (D.1. 28 at 28)
Finally, subsequent to oral argument, the Third Circuit issued two opinions that, at
minimum, strongly support the Plan Proponents' position. See In re W.R. Grace & Co., 729 F .3d

9

311 (3d Cir. 2013) ("Canada/Montana"); In re WR. Grace & Co., 729 F.3d 332 (3d Cir. 2013)
("AMH'). In these cases, the Third Circuit rejected the argument (made here by ITCAN) that the

terms "claims and demands are mutually exclusive." AMH, 729 F.3d at 321; see also D.l. 37 at
1. Even ITCAN concedes that in these cases "the Third Circuit suggests that claims and
demands are not mutually exclusive." (D.I. 38 at 2)
In sum, the Court agrees with the Bankruptcy Court's interpretation of "substantial future
demands." Moreover, the Bankruptcy Court's finding that Flintkote is likely to face "substantial
future demands" from exposed-but-asymptomatic individuals is not clearly erroneous. (See id.)

C.

Notice

ITCAN also contends the Bankruptcy Court erred in determining that, following the
Third Circuit's en bane opinion in Grossman's, 607 F.3d 114, and the Third Circuit's subsequent
decision in Wright v. Owens Corning, 679 F.3d 101 (3d Cir. 2012), the Plan Proponents provided
adequate notice to, and solicited votes from, all creditors and parties in interest, as required by,

inter alia, §§ 342(a), 1125, 1126, and 1129(a)(2) of the Bankruptcy Code, as well as the Due
Process Clause of the U.S. Constitution. (D.I. 2 Ex. A) According to ITCAN, the Plan is not
confirmable because, under Grossman's, the Debtors did not provide adequate or additional
notice to individuals who hold "claims" and were entitled to participate in the bankruptcy
proceedings. Nor did the Debtors solicit votes from all claimants, as required by the Due Process
Clause. (See D.I. 16 at 35; Tr. at 6)
The Court agrees with the Plan Proponents that notice was handled appropriately. The
Bankruptcy Court approved Flintkote's notice and solicitation procedures pre-Grossman's, and
ITCAN apparently concedes that nothing about Flintkote's notice or solicitation procedures was

10

inadequate before Grossman's was decided. (See, e.g., Tr. at 80) 10 The rights of exposed-butasymptomatic victims are adequately protected. As the Bankruptcy Court explained, "if and
when such a creditor becomes ill, there will be a trust in place to address claims for
compensation. There is nothing to be gained by requiring Flintkote to provide additional notice
from what this Court has already approved." (Mem. Op. at 42)
Fundamentally, as the Plan Proponents argue, and as the Third Circuit recognized in

Grossman's and Wright,"§ 524(g) was Congress's answer to the Due Process concerns raised by
other bankruptcy plans in asbestos cases." (D.I. 28 at 24) Additionally, here, the Plan provides
for a future claimants' representative who fully protects the interests of unknown asbestos
claimants and eliminates any bar date for asbestos personal injury victims - protections that were
not present in the approved plan in Wright.

D.

Business

ITCAN next argues that Flintkote does not have a viable, going concern business around
which to reorganize, as is required by 11 U.S.C. §§ 524(g), 1129(a)(l 1), and 1141(d)(3), and
therefore does not qualify for the protections afforded by a§ 524(g) channeling injunction. (D.I.
16, 31) Going forward, Flintkote plans to "pursue what it alleges are five separate business lines
upon emerging from bankruptcy: (1) purchasing and leasing real estate; (2) consulting and

10

ITCAN's contention that Grossman's required an amended notice to be provided
depends on ITCAN' s distinction between claims and demands, which the Court has already
rejected. See Canada/Montana, 729 F.3d at 311 ("§ 524(g) includes a number ofrequirements
that are specifically tailored to protect the due process rights of future claimants, such as the fair
and equitable provision and the mandatory seventy-five percent approval requirement.
Therefore, as long as a court correctly determines that§ 524(g)'s requirements are satisfied,
present and future claims can be channeled to a§ 524(g) trust without violating due process.")
(internal quotation marks and citations omitted).
11

executive management services; (3) claims processing; (4) trust services; and (5) pursuit of the
Dividend Recovery Litigation [against ITCAN]." (Mem. Op. at 8) (internal footnote omitted) In
ITCAN's view, the Plan Proponents have "failed to prove that Flintkote would be a profitable
business capable of funding the trust after confirmation." (Tr. at 6)
Section 524(g) imposes two funding requirements on the debtor. First, the resulting
§ 524(g) trust must "own, or ... be entitled to own ... a majority of the voting shares" of the
debtor. 11 U.S.C. § 524(g)(2)(B)(i)(III). Second, the debtor must fund the trust with its
"securities" and accept an "obligation" to "make future payments, including dividends" to the
trust. Id. § 524(g)(2)(B)(i)(II).
ITCAN claims that§ 524(g) requires Flintkote to continue operating a business that
existed before it filed its bankruptcy petition; it further contends that Flintkote's ongoing
business operations are also inadequate. (D.1. 28 at 20) The Plan Proponents respond that even
assuming that Flintkote must be a "going concern," as the Third Circuit suggested in dicta in

Combustion Engineering, Flintkote meets that standard. (See generally D.I. 28 at 43; Tr. at 9596) The Court agrees with the Plan Proponents.
As the Bankruptcy Court correctly held, "[n]othing in§ 524(g), § 1129, § 1141, or

Combustion Engineering requires a debtor to continue to engage in a pre-petition (and possibly
unsuccessful) business to the exclusion of any other." (Mem. Op. at 46) The reason for
requiring a debtor to engage in a business is to provide an evergreen source of funds for the trust.

(See id. at 44-45, 50) Neither the law (including Combustion Eng 'g, 391 F.3d at 248, stating that
the '"implication of[§ 524(g)(2)(B)(i)(II)] is that the reorganized debtor must be a going
concern, such that it is able to make future payments into the trust to provide an 'evergreen'

12

funding source for future asbestos claimants") nor logic dictates that the evergreen source of
funds must be a business the debtor engaged in prior to filing for bankruptcy. 11
In any event, the Bankruptcy Court did not clearly err in finding that Flintkote's business
activities are sufficient to satisfy any "ongoing business" requirement that may be imposed by
§ 524(g). After conducting the confirmation hearing, the Bankruptcy Court reopened the
evidentiary record to allow the Plan Proponents to introduce evidence relating to the profitability
or loss ofFlintkote's real property management business. (Mem. Op. at 53, 62-63, 66) The
Bankruptcy Court scrutinized the projected profitability of Flintkote's real estate business and
found it sufficient. (See Mem. Op. at 55, 66) This finding is not clearly erroneous.
Section 524(g) does not impose on debtors a requirement to demonstrate a particular rate
of return on capital investment, or comply with generally accepted accounting principles, or
adopt an independent audit plan. (Tr. at 92) ITCAN's criticism of Flintkote for not meeting
these non-requirements is unavailing. The Bankruptcy Court found that Flintkote had satisfied

§ 524(g)'s funding requirement and the standard confirmation and discharge requirements under
the Bankruptcy Code. (See, e.g., Mem. Op. at 3, 73-74) These findings are not clearly erroneous
and are adequate to support the § 524(g) channeling injunction.
Although the Bankruptcy Court did not expressly conclude that Flintkote's projections
show it will earn a profit, the evidence it reviewed - including documentary exhibits, affidavits,
various settlements, and projected net recovery - support such a finding. (See Mem. Op. at 8, 70-

11

Although not a requirement, Judge Fitzgerald noted that "Flintkote's 'new' business
mirrors a prior undertaking," i.e., "Flintkote formerly leased real property to third parties for
several years in the 1980s, although that aspect of its business was not operative by the time it
filed bankruptcy." (Mem. Op. at 51)
13

71; Tr. at 94-96) The trust will receive a 100% interest in the reorganized Flintkote. As the
Bankruptcy Court found, "Flintkote's total real estate holdings will provide a stable source of
income." (Mem. Op. at 75; see also Tr. at 33, 88, 90-96, 108-09)
ITCAN argues that the Court's ruling will mean that businesses as paltry as a "lemonade
stand" will have to be considered adequate to support a§ 524(g) channeling injunction. (Tr. at
95-96) The Court need not decide if this is the case. It is sufficient for today's decision to
observe that § 524(g) plans have been confirmed with less ongoing business than that in which
Flintkote intends to engage. See, e.g., Combustion Eng'g, 391 F.3d at 248 (approving§ 524(g)
injunction for debtor with business comprising a single piece ofreal estate); In re ACandS, Inc.,
No. 02-12687 (Bankr. D. Del. May 8, 2008) (D.l. 3310) (granting§ 524(g) injunction where
post-confirmation business consisted solely of ownership and lease of single piece of real estate
to be contributed to debtor on effective date of Plan). It is also doubtful whether a plan
predicated merely on a "lemonade stand" would gamer the voting support of 94-99% of asbestos
claimants, as Flintkote's Plan here has done.
E.

ITCAN's Appeal

Having considered the principal issues raised by ITCAN in its appeal, the Court
concludes that the Bankruptcy Court did not clearly err with respect to its findings of fact and did
not err in its legal determinations. It is evident that the Bankruptcy Court thoroughly and
carefully reviewed the record, evaluating it in relation to the positions of the parties and the
appropriate authority in light of the circumstances presented. In support of its decisions, the
Bankruptcy Court provided lengthy analysis in its Memorandum Opinion and accompanying
Findings of Fact and Conclusions of Law. The Court will affirm the Bankruptcy Court.
14

F.

Request for Confirmation

The Plan Proponents ask the Court to affirm the Confirmation Order. That Order
concluded that the Plan fully satisfies Chapter 11 's requirements, including those necessary to
support a trust and injunction under§ 524(g). ITCAN is the lone remaining Plan objector,
objecting to affirmance on grounds already rejected above, and further contending that the
Bankruptcy Court erred in determining that the Amended Joint Plan complies with §§
1129(a)(l), 1129(a)(7), 1129(a)(l 1), and 1141(d). In particular, ITCAN asserts the Bankruptcy
Court erred in:
determining that the Amended Joint Plan is neutral as to
ITCAN and its affiliates, including Genstar Corporation, in respect
to their legal, equitable, and contractual rights in and to certain
insurance policies and related proceeds that are shared among one
or both of the Debtors, on the one hand, and ITCAN and/or one or
more of its affiliates, on the other hand; and
... approving and authorizing the Mines Liquidating
Injunction contained in Section 12.1.4 of the Amended Joint Plan
given that (a) the Amended Joint Plan provides for the liquidation
of all or substantially all of Mines' assets and property, (b) Mines
will not engage in business after consummation of the Amended
Joint Plan, and (c) Section 1141(d)(3) prevents Mines from
receiving a discharge of its debts.
(D.I. 2 Ex. A at 2)
In its lengthy and thorough opinion, the Bankruptcy Court explained how the Plan
complies with Bankruptcy Code§§ 1129, 1141, and 524(g). Having considered the Bankruptcy
Court's analysis, the relevant objections, briefing, and oral argument, the Court finds that
ITCAN's objections lack merit and must be denied. The Court adopts the Findings of Fact and
Conclusions of Law regarding Confirmation, and, having done so, the Plan will be confirmed in

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its entirety. This affirmance of the Confirmation Order includes the § 524(g) injunction.

V.

CONCLUSION
Accordingly, and for the foregoing reasons, the Bankruptcy Court's decisions will be

affirmed and its findings and conclusions adopted. ITCAN's objections to the Confirmation
Order and accompanying Opinion will be overruled.
An appropriate Order, substantially in the form proposed by the Plan Proponents, follows.

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