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UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

In re Chapter 11
1
BESTWALL LLC,
Case No. 17-31795 (LTB)
Debtor.

THE OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS’ OBJECTION

TO GEORGIA-PACIFIC LLC’S MOTION TO CONFIRM
STANDING AS A PARTY IN INTEREST

The Official Committee of Asbestos Claimants (the “Committee”), by and through its

undersigned counsel, objects to Georgia-Pacific’s Motion to Confirm Standing as Party in

Interest [Docket No. 921] (the “Standing Motion”) filed by Georgia-Pacific LLC (“New GP”),

and in support thereof, the Committee states as follows:

PRELIMINARY STATEMENT

1. It is far from “readily apparent” that New GP should be, or even is, a party in

interest to any estimation proceeding on the Bestwall Asbestos Claims.2 New GP claims to be a

“party in interest” under 11 U.S.C. § 1109(b) by deliberately conflating the Bestwall Asbestos

Claims—personal injury tort claims—with New GP’s contractual obligations to the Debtor

arising under the Funding Agreement. But, New GP has no protectible pecuniary interest in any

estimation proceeding. Most importantly, any estimation proceeding will not fix or establish

liability. Therefore, New GP cannot claim any pecuniary interest in an estimation trial.
1
The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s
address is 133 Peachtree Street, N.W., Atlanta, Georgia 30303.
2
The Committee contends that the term “Bestwall Asbestos Claims” is misleading in that the
asbestos claims at issue in this case arise exclusively from conduct of Old GP (and possibly New
GP), but not at all from conduct by Bestwall, and are equally and properly “New GP Asbestos
Claims” or “Georgia-Pacific Asbestos Claims”. However, the Committee uses the defined term
used by the Debtor and adopted by the Court throughout for consistency.
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2. Further, New GP disavows any liability for the Bestwall Asbestos Claims,

directing all parties to the documentation for the 2017 Corporate Restructuring. While the

Committee contends that New GP has direct, independent successor liability for the Bestwall

Asbestos Claims, New GP cannot on the one hand disavow such liability and on the other hand

assert a pecuniary interest in the outcome of any estimation hearing. The Funding Agreement

completely alters the character of New GP’s liability. New GP’s sole interest in seeking to

participate in any estimation proceeding is ultimately with the hope of gaining leverage to argue

for a limitation of its own contractual liability to the Debtor. That interest is neither sufficiently

concrete nor beneficial to the Debtor. The Debtor is neutral (or should be) as to what New GP’s

liability is under the Funding Agreement.

3. New GP fails to even argue constitutional standing, implicitly conceding that it

cannot meet such a heavy burden. Instead, New GP relies on Rule 24 of the Federal Rules of

Civil Procedure (the “Civil Rules”) which is excluded from applicability to the estimation

proceeding, pursuant to Bankruptcy Rule 9014. But, even if it is applicable, New GP

nevertheless cannot meet the burden required for Civil Rule 24 intervention. As the Fourth

Circuit has noted, “a would-be intervenor bears the burden of demonstrating to the court a right

to intervene.” Richman v. First Woman’s Bank (In re Richman), 104 F.3d 654, 658 (4th Cir.

1997). The Court should deny New GP’s Standing Motion and allow the Debtor, the Committee,

and the FCR to conduct an estimation—if such is ordered by the Court—without New GP’s

participation.3

3
As evidenced by the Committee’s recent filings, it is the Committee’s position that estimating
the Bestwall Asbestos Claims is wasteful and improper because such a proceeding will not
inform the decisions of the Debtor, the Committee, or the FCR. See generally Objection of the
Official Committee of Asbestos Claimants to Motion of the Debtor for Estimation of Current and
Future Mesothelioma Claims [Docket No. 937] (the “Committee’s Estimation Objection”);
Continued…

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OBJECTION

I. NEW GP LACKS PARTY IN INTEREST STANDING PURSUANT TO

11 U.S.C. § 1109(b)

4. Section 1109(b) of the Bankruptcy Code provides that “[a] party in interest . . .

may raise and may appear and be heard on any issue in a case under this chapter.” Although

New GP asserts that “party in interest” is defined broadly, the Fourth Circuit has actually limited

“party in interest” status to those entities “whose pecuniary interests are directly affected” by the

particular bankruptcy proceeding at issue. See Yadkin Valley Bank & Tr. Co. v. McGee (In re

Hutchinson), 5 F.3d 750, 756 (4th Cir. 1993); see also Grausz v. Englander, 321 F.3d 467, 473

(4th Cir. 2003) (noting party in interest is entity with “a pecuniary interest in the distribution of

assets to creditors”).

5. An estimation of the Bestwall Asbestos Claims will not, and indeed cannot, fix

the Debtor’s liability for those claims. At best, an estimation proceeding in a section 524(g) case

only provides a debtor, the asbestos creditors, and a future claimants’ representative with some

guidance to assist in negotiating the funding for a trust designed to compensate present and

future asbestos claimants. However, for the reasons set forth in more detail in the Committee’s

Estimation Objection and the Committee’s Second Motion to Dismiss, estimation will not inform

the ultimate funding negotiation and the Debtor’s bankruptcy case will not benefit from an

estimation of the Bestwall Asbestos Claims.

….Continued
Motion of the Official Committee of Asbestos Claimants to (I) Dismiss the Chapter 11 Case for
Cause Pursuant to 11 U.S.C. § 1112(b), or Alternatively, (II) to Set a Deadline (A) By Which the
Debtor Must Confirm a Chapter 11 Plan or (B) to Lift the Preliminary Injunction in Favor of
New GP and the Protected Parties [Docket No. 938] (the “Committee’s Second Motion to
Dismiss”). Nevertheless, if the Court determines it should proceed with an estimation of the
Bestwall Asbestos Claims, it is the Committee’s position that New GP is not a party in interest
and should not be permitted to intervene in the estimation proceeding.

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6. Even if the Court determines that it will proceed with estimation, such a

proceeding will have absolutely no impact on New GP’s rights or obligations. This is a

dispositive distinction.

7. First, history has demonstrated that in cases in which liability is contested,

negotiations for section 524(g) trust are not governed by estimation decisions. Both the Bondex

and Garlock estimation decisions, along with countless others, demonstrate this fact.

8. Moreover, New GP’s obligations under the Funding Agreement are not analogous

to an insurance contract. According to the Debtor and New GP, New GP is responsible for

payment of the Bestwall Asbestos Claims, whatever they are. If the Debtor elects to consider

New GP’s views on funding of a trust (as it undoubtedly will), then New GP will be a participant

in fixing its liability under the Funding Agreement, even if it has no contractual right to do so.

9. Importantly, New GP did not bargain for a right to participate in the quantification

of the Bestwall Asbestos Claims. Particularly because the Funding Agreement was part of a

parcel of documents expressly created in anticipation of this bankruptcy case, had New GP

intended to have a right to defend or participate in an estimation of the Bestwall Asbestos

Claims, it was fully capable of negotiating, or otherwise providing for, such a right in the

Funding Agreement. Having failed to do so, it cannot now claim a pecuniary interest based

solely on the Funding Agreement.

10. It is the Debtor’s position (and New GP’s position), that “the Debtor became

solely responsible for the Bestwall Asbestos Claims as a result of an internal corporate

restructuring that occurred on July 31, 2017, . . . and no Protected Party assumed or otherwise

obtained liability for any such claims as part of the restructuring.” See Adv. Proc. 17-03105,

[Docket No. 2], at 2 (emphasis added). New GP has also asserted that “[t]he Debtor alone, and

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not New GP, was allocated Old GP’s asbestos-related liabilities.” See Adv. Proc. 17-03105

[Docket No. 97], at 2. New GP described the 2017 Corporate Restructuring as “a transaction

that created Bestwall, lawfully allocated Old GP’s asbestos-related liabilities to Bestwall,

ensured that Bestwall’s ability to pay those liabilities was not diminished from that of Old GP,

and created an option for Bestwall to pursue a resolution of its asbestos-related liabilities

under section 524(g) in an efficient manner without the business disruption, complexity and

expense that would have occurred had Old GP filed a chapter 11 case.” See Notice of Filing

Annotated Response to Dismissal Motion [Docket No. 675, Ex. A], at 13-14 (emphasis added).

11. New GP advances the argument that it has a pecuniary interest in the Bestwall

Asbestos Claims because it was caused to enter into the Funding Agreement in connection with

the 2017 Corporate Restructuring. However, New GP’s assertion that the Funding Agreement

may serve as the basis for seeking party in interest status for any estimation proceeding, is

simply incorrect. The Standing Motion purposefully and incorrectly conflates (what New GP

argues is) the Debtor’s ultimate, negotiated liability for the Bestwall Asbestos Claims with New

GP’s actual unconditional, uncontestable, and unlimited contractual obligation under the Funding

Agreement to fund a section 524(g) trust. According to New GP, the “Funding Agreement does

not include any contingencies or restrictive covenants that could operate to excuse New GP’s

performance under the agreement.” [Docket No. 675], at ¶ 9. In fact, the “Funding Agreement

obligates New GP to provide the funding for a section 524(g) asbestos trust in whatever amount

is required by a confirmed plan of reorganization for the Debtor, to the extent that such amount

exceeds the value available from the Debtor’s own assets.” Id. at ¶ 8; see also [Docket No. 665,

Ex A], at Art. 2 (confirming that New GP is required to pay Debtor’s requested funding amount,

subject only to the Debtor’s affirmation that contract-mandated representations and warranties

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continued to be true and correct and that money would only be used to satisfy permitted funding

use).

12. Therefore, even if the estimation proceeding were to fix New GP’s liability under

the Funding Agreement, which it will not, the Funding Agreement does not provide New GP

with a “pecuniary interest” in the Bestwall Asbestos Claims or the right to participate in an

estimation proceeding of those claims as a party in interest. New GP already agreed to pay

whatever the Court-ordered amount is, no matter what that liability turns out to be. New GP’s

motion does not seek to “confirm standing,” but seeks to participate in any estimation proceeding

solely to reduce its own liability for the Bestwall Asbestos Claims.

13. Likewise, New GP’s contention that it is a creditor because the Funding

Agreement requires Bestwall to indemnify New GP for any Bestwall Asbestos Claims asserted

against New GP, is a red herring. New GP fails to identify any instance where a plaintiff named

New GP and New GP was required to pay a Bestwall Asbestos Claim in the ninety-four days

between the 2017 Corporate Restructuring and the Petition Date. Since the Petition Date, the

Court has enjoined the asbestos-related personal injury victims’ ability to bring causes of action

against New GP. Further, it is the Debtor’s stated intention and underlying purpose in filing this

Chapter 11 Case that it resolve the Bestwall Asbestos Claims asserted against it and New GP as

part of a section 524(g) asbestos trust.

14. The Funding Agreement’s indemnification obligation running in favor of New GP

is entirely circular and a construct designed to provide New GP with a form over substance

argument that it has an interest in this proceeding—it exists solely to provide New GP with the

ability to argue it may be a “creditor” of the Bestwall estate. New GP’s assertion that the various

ancillary agreements provide it with creditor status is likewise unavailing—New GP is not a

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creditor under the various ancillary agreements for the simple fact that the Debtor has complied

with its payment obligations under these agreements.

II. NEW GP SHOULD NOT BE PERMITTED TO PARTICIPATE IN ANY

ESTIMATION PROCEEDING BECAUSE IT CANNOT ESTABLISH—AND
INDEED FAILED TO ARGUE—IT HAS CONSTITUTIONAL STANDING

15. New GP pays constitutional standing short-shrift in its Standing Motion, claiming

that because party in interest status is so “readily apparent,” and that party-in-interest is broader

than constitutional standing, it does not need to address constitutional standing. Therefore, New

GP should be prevented from arguing constitutional standing at the hearing on the Standing

Motion. Even if New GP is permitted to argue this point, New GP cannot establish that it has the

necessary constitutional standing to participate in any estimation of the Bestwall Asbestos

Claims.

16. Even if the Court considered New GP a party in interest in the bankruptcy case at

large, such status does not provide New GP with the right to participate in an estimation of the

Bestwall Asbestos Claims. Limits exist regarding what a party in interest may do, and the right

to appear and be heard is not to be confused with standing. See In re Phillips, 573 B.R. 626, 642

(Bankr. E.D.N.C. 2017) (“the right to appear and be heard is not the same as standing and §

1109(b) does not necessarily mean that every party in interest can seek relief on every issue.”

(citing Matter of Rimsat, Ltd., 193 B.R. 499, 503 (Bankr. N.D. Ind. 1996)). Critically, “party in

interest standing does not arise if a party seeks to assert some right that is purely derivative of

another party’s rights in the bankruptcy proceeding.” In re Woodberry, 383 B.R. 373, 379

(Bankr. D.S.C. 2008).

17. Constitutional standing requires a movant to demonstrate that:

First, the plaintiff must have suffered an injury in fact—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal

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connection between the injury and the conduct complained of—the injury has to
be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e]
result [of] the independent action of some third party not before the court. Third,
it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.

United States v. Windsor, 570 U.S. 744, 757 (2013) (internal quotations omitted) (quoting Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

18. As interpreted by the Fourth Circuit, New GP bears the burden of “establishing

injury, traceability, and redressability . . . .” Friends for Ferrell Parkway, LLC v. Stasko, 282

F.3d 315, 320 (4th Cir. 2002). “The relevant showing for purposes of Article III standing . . . is

. . . injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 181 (2000). The purported injury must not be “conjectural or hypothetical.” Ferrell

Parkway, 282 F.3d at 320 (citation omitted). “The traceability requirement ensures that it is

likely the plaintiff's injury was caused by the challenged conduct of the defendant, and not by the

independent actions of third parties not before the court.” Id. (citation omitted) (emphasis

added). Finally, the redressability aspect of the test examines whether it is “likely, and not

merely speculative, that a favorable decision from the court will remedy the plaintiff's injury.”

Id. (citation omitted). Each element of the Lujan test “must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the litigation.” Bradacs v. Haley, 58 F. Supp. 3d

499, 506 (D.S.C. 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

19. In any estimation trial, not even the Debtor’s liability—let alone New GP’s

liability—will be established. Accordingly, New GP cannot establish injury, traceability, or

redressability. An estimation trial is purely advisory; it is not a determination of liability.

20. Further, as stated above in detail, throughout the entire bankruptcy process,

including the adversary proceeding, New GP is unable to establish that its participation in any

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estimation proceeding would redress its contractual obligation to pay an unlimited,

uncontestable, and unconditional amount under the Funding Agreement to establish a section

524(g) trust. Thus, New GP fails to establish the requisite injury, traceability, and redressability

on the Bestwall Asbestos Claims necessary for constitutional standing and should not be allowed

to participate in any estimation of the Bestwall Asbestos Claims.

21. New GP’s only reason for participating in an estimation of the Bestwall Asbestos

Claims is for litigation advantage—to limit its own contractual liability under the Funding

Agreement (and, any liability it has, despite its litigation position, as a successor to Old GP).

But, for the reasons stated above, the Funding Agreement—and the liability New GP has to

Bestwall under the agreement—does not rise to the level of providing New GP with

constitutional standing to participate in any estimation proceeding for the Bestwall Asbestos

Claims.

III. NEW GP FAILS TO DEMONSTRATE INTERVENTION IS APPROPRIATE

UNDER RULE 24 OF THE FEDERAL RULES OF CIVIL PROCEDURE

22. Finally, New GP requests that the Court allow it to intervene under Civil Rule 24

based on New GP’s own assertion that “the Court will benefit from hearing New GP’s

perspective in assessing the Debtor’s alleged liability relating to pending and future asbestos

claims.” See Standing Motion at ¶ 14. The Committee disputes this self-serving statement. The

Debtor is represented by highly sophisticated professionals. There is simply no basis to any

argument that the Debtor is not fully capable of trying the estimation case without New GP.

Further, because New GP has represented that there is no “daylight between New GP’s position

. . . and Bestwall’s . . .,” 3/21/2019 Hr’g Tr. 35:24-36:2, New GP should not be permitted to rely

on Civil Rule 24 to intervene in an estimation proceeding as argued in greater detail below. See

Fed. R. Bankr. P 2018(a), 9014.

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A. New GP is not Entitled to Intervene as of Right

1. Civil Rule 24 Is Inapplicable to the Estimation Proceeding

23. “[I]t should be pointed out that while it is true that the estimation process is a

contested matter governed by Bankruptcy Rule 9014, which makes certain rules automatically

applicable, Bankruptcy Rule 7024 is not one of them.” In re Bicoastal Corp., 122 B.R. 771, 774

(Bankr. M.D. Fla. 1990).

This is an important distinction because a right to be heard pursuant to Section

1109 of the Code and Rule 2018 is one thing and to intervene and thus become an
actual party litigant in a contested matter is another. In the latter instance, if
intervention is permitted, parties who intervened are treated on par with the
litigants already in the lawsuit or in the contested matter with the full right to
conduct independent discovery, to present evidence, and to cross-examine
witnesses. On the other hand, if the party is merely authorized to be heard,
pursuant to Section 1109, his involvement in a particular contested matter is
limited to the right to present arguments and to submit briefs, but that party has no
right to conduct litigation of its own in the orthodox sense as a party litigant.

Id. As such, New GP does not have, under the Bankruptcy Rules or otherwise, the ability to

intervene in an estimation proceeding as a matter of right. See Fed. R. Bankr. P. 2018(a) (noting

that intervention in contested matters is discretionary for cause shown. Assuming arguendo that

New GP was entitled to intervene in an estimation proceeding as of right, New GP cannot meet

those standards in any event.

2. The Timeliness of New GP’s Motion

24. The Committee disputes the notion that the Standing Motion was timely filed. As

New GP itself states, “the ACC raised concerns regarding New GP’s standing during and

subsequent to the status conference on July 11, 2019.” Standing Motion at ¶ 16. The Standing

Motion was not filed until August 12, 2019. Moreover, the Standing Motion was filed with a

request for shortened notice to be heard at the August 22, 2019 omnibus hearing. New GP was

on notice of the Committee’s position for exactly one month before filing the Standing Motion,

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and certainly had enough notice to file the Standing Motion to be heard in August on regular

notice had it so desired. While a month between notice and filing might be timely in other

instances, the Standing Motion is not timely under the current scenario and the Court should

deny the Standing Motion.

3. New GP Lacks a Substantial Interest in the Bestwall Asbestos Claims

25. New GP has attempted to manufacture standing by asserting its obligations under

the Funding Agreement create a “substantial” or “protectible” interest in participating in any

estimation of the Bestwall Asbestos Claims scheduled in this case. As detailed above, New GP’s

Funding Agreement obligations do no such thing. An estimation trial is non-binding. And, New

GP’s sole interest in any estimation proceeding is to protect its own interests, not those of the

Debtor or any estate constituency.

4. New GP’s Interests are Not Impaired by Denying Intervention

26. Despite New GP’s assertions to the contrary, it has no interest—let alone a

protectable interest—in estimating the Bestwall Asbestos Claims. Denying intervention in any

scheduled estimation of the Bestwall Asbestos Claims does not impact New GP’s obligations as

set forth in the Funding Agreement. New GP’s obligations, if any, will be determined by

negotiation. New GP is a party to the Funding Agreement—a contract—pursuant to which it is

obligated to pay the fees and costs associated with the Debtor’s bankruptcy case as well as fund a

section 524(g) trust in an amount determined by the Court or in a confirmed plan. Its liability

arises not from the Bestwall Asbestos Claims, but from a contractual promise to pay. A

determination that New GP is not entitled to participate in estimation does not alter its obligation

to pay under the Funding Agreement. New GP is not impaired by non-participation; it is getting

exactly what it bargained for when signing the Funding Agreement—a fixed obligation to pay an

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unknown amount in exchange for the Debtor assuming liability for all Bestwall Asbestos Claims.

Therefore, the Court should deny intervention.

5. The Debtor is the Correct Party to Litigate the Bestwall Asbestos Claims

27. This factor also favors denying intervention. The Debtor is the proper party to

contest the Debtor’s liability for the Bestwall Asbestos Claims.

B. New GP Fails to Satisfy the Permissive Intervention Standard

28. Civil Rule 24(b)(1)(B) provides that the Court may permit anyone who files a

“timely motion” to intervene where that entity “has a claim or defense that shares with the main

action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Civil Rule 24(b) is

permissive, allowing the Court to grant intervention upon a party meeting three criteria: (1)

timeliness; (2) shared question of law or fact; and (3) undue delay or prejudice. Communs. Elec.

Indus., 2016 U.S. Dist. LEXIS 84399, at *16 (citing Stuart, 706 F.3d at 355).

29. In determining whether to grant permissive intervention, the Court strictly

interprets timeliness. Id. (noting that Civil Rule 24’s timeliness requirement is “strict[ly]

enforce[d]” in the permissive intervention context). As previously discussed, the Standing

Motion is untimely.

30. Also discussed above, New GP’s obligation under the Funding Agreement—to

pay what a confirmed plan requires for a section 524(g) trust—is not the same question of law or

fact as an estimation decision concerning the Debtor’s liability for the Bestwall Asbestos Claims.

Finally, prejudice and delay would result from the Court permitting New GP to intervene in any

estimation proceeding of the Bestwall Asbestos Claims. That New GP signed a contract

obligating it to pay an as-yet-to-be-determined amount based on a determination of liability

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“solely and lawfully assigned” to the Debtor by the 2017 Corporate Restructuring does not

justify intervention. The Court should deny New GP’s request to intervene.

CONCLUSION

WHEREFORE, the Committee respectfully requests that the Court enter an order (i)

denying the Standing Motion, and (ii) granting the Committee such other and further relief as the

Court deems just and proper.

Dated: Charlotte, North Carolina HAMILTON STEPHENS STEELE

August 30, 2019 + MARTIN, PLLC

/s/ Glenn C. Thompson

Glenn C. Thompson (Bar No. 37221)
525 North Tryon Street, Suite 1400
Charlotte, North Carolina 28202
Telephone: (704) 344-1117
Facsimile: (704) 344-1483
gthompson@lawhssm.com

Judy D. Thompson (Bar No. 15617)

Linda W. Simpson (Bar No. 12596)
JD THOMPSON LAW
Post Office Box 33127
Charlotte, North Carolina 28233
Telephone: (828) 489-6578
jdt@jdthompsonlaw.com
lws@jdthompsonlaw.com

Natalie D. Ramsey (DE Bar No. 5378)

Davis Lee Wright (DE Bar No. 4324)
ROBINSON & COLE LLP
1000 North West Street
Suite 1200
Wilmington, Delaware 19801
Telephone: (302) 516-1703
nramsey@rc.com
dwright@rc.com

Counsel to the Official Committee of Asbestos

Claimants

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