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UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division __________________________________________ ) ) ) GARLOCK SEALING TECHNOLOGIES ) ) LLC, et al. 1 ) Debtors. ) __________________________________________) In Re: Chapter 11 Case No. 10-31607 Jointly Administered

MOTION OF THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS TO STRIKE LEGAL NEWSLINES SECOND MOTION FOR ACCESS TO THE ESTIMATION HEARING The Official Committee of Asbestos Personal Injury Claimants (the ACC or Committee), by and through undersigned counsel, respectfully moves this Court for an order striking the Motion by Legal Newsline to Unseal the Trial Testimony and Exhibits on Which the Court Based Its January 10, 2014 Order Estimating Aggregate Liability, dated March 3, 2014 [Dkt. No. 3359] (the Second Motion) because this Court lacks subject matter jurisdiction to consider it. 1. Last July, during the course of the estimation hearing, Legal Newsline filed in this

Court its first motion asserting a public right of access to the hearing on estimation of pending and future mesothelioma claims against Garlock (the Estimation Hearing). 2 Motion of Legal Newsline to Open Proceedings to the Public, dated July 30, 2013 [Dkt. No. 3065] (the First Motion).

Debtors consist of Garlock Sealing Technologies LLC (Garlock), Garrison Litigation Management Group, Ltd., and The Anchor Packing Company (collectively, the Debtors). The Estimation Hearing was conducted by The Honorable Judge George R. Hodges on July 22-August 12, 2013 and August 22, 2013. The parties to the Estimation Hearing were the Debtors, the Committee, the Future Claimants Representative, and Coltec Industries, Inc.
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2.

On July 31, 2013, this Court issued an order denying the First Motion. Order

Denying Motion of Legal Newsline to Open Proceedings to the Public, dated July 31, 2013 [Dkt. No. 3069] (the Order). 3. On August 13, 2013, Legal Newsline filed a notice of appeal from the Order to

the United States District Court for the Western District of North Carolina (the District Court). Notice of Appeal by Legal Newsline, dated August 13, 2013 [Dkt. No. 3080] (the Notice of Appeal). 4. 5. That appeal (the Appeal) is pending in the District Court. Nonetheless, on March 3, 2014, Legal Newsline filed the Second Motion with this

Court again asserting a public right of access to the Estimation Hearing. The Pendency of the Appeal Divests the Bankruptcy Court of Subject Matter Jurisdiction Over the Second Motion 6. The filing of a notice of appeal divests the trial court of jurisdiction over the

issues involved in that appeal, and confers jurisdiction over those issues upon the appellate court. E.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982); Levin v. Alms and Assocs., Inc., 634 F.3d 260, 263 (4th Cir. 2011). This rule applies with equal force to

bankruptcy cases. In re Legend Radio Group, Inc., 248 B.R. 281, 284 (W.D. Va. 1999). Thus, upon filing its Notice of Appeal of this Courts Order on the First Motion, Legal Newsline gave up any right to proceed further in this Court on any issues involved in the Appeal. 7. The central issue before the District Court in the Appeal is the same issue that

Legal Newslines Second Motion purports to placeagainbefore this Court: the extent, if any, to which the public has a right of access to the Estimation Hearing. Specifically, Legal Newslines Second Motion argues that the public has a right of access to certain testimony and exhibits received by the Bankruptcy Court during closed portions of the Estimation Hearing that

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underlie certain findings made by this Court in its Order Estimating Aggregate Liability. 3 See generally Memorandum of Law in Support of Second Motion, dated March 3, 2014 [Dkt. No. 3360]. Its Appeal argues that the Bankruptcy Court was wrong to close the courtroom for those very same portions of the Estimation Hearing. Notice of Appeal at 1. 8. Both the Second Motion and the Appeal assert that the First Amendment creates a

presumption that court proceedings should be open and argue that no countervailing interests overcome that presumption in this case. See Memorandum of Law in Support of the Second Motion at 11-13; Memorandum of Law in Support of the First Motion at 5-6, dated July 30, 2013 [Dkt. No. 3066]. 9. Plainly, the key issues in the Appeal and the Second Motion are the same. Even if

the issues were not identical, this Court would still lack jurisdiction over the Second Motion, because the Notice of Appeal divested this Court of jurisdiction not only over the issues expressly appealed, but more broadly over all matters relating to the appeal. See Grand Jury Proceedings Under Seal v. United States, 947 F.2d 1188, 1190 (4th Cir. 1991); In re Whispering Pines Estates, Inc., 369 B.R. 752, 759 (B.A.P. 1st Cir. 2007) ([I]t is imperative that a lower court not exercise jurisdiction over those issues which, although not themselves expressly on appeal, nevertheless so impact the appeal so as to interfere with or effectively circumvent the appeal process.); see also Levin, 634 F.3d at 264 (applying rule broadly and concluding that filing notice of appeal involving whether underlying claims were arbitrable divested the trial

The Second Motion also seeks unspecified evidence submitted in the Estimation Hearing and hints at an unusual procedure by which the Court would in effect reconsider and elaborate upon the Estimation Order. If a party made such a request at this juncture, the Court would be constrained to reject it as improper. The request is even more extraordinary, and at least equally improper, when made by a non-party, as here. -3-

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court of jurisdiction over not only the issue of arbitrability, but over the entire litigation of the underlying claims while the appeal was pending). 10. The Second Motion is, at the very least, a matter related to the appeal. Notably,

both the Second Motion and the Appeal seek the same relief: access to evidence that this Court protected by closing the courtroom. Indeed, both the Notice of Appeal and the Second Motion specifically request as a remedy the unsealing of trial transcripts for the short periods during which the courtroom was closed to the public. See Notice of Appeal at 1; Second Motion at 1. 11. This Court was divested of subject matter jurisdiction over the Second Motion

when Legal Newsline filed its Notice of Appeal. Consideration of the issues in the Second Motion would encroach upon the exclusive jurisdiction of the District Court to consider those same issues, and related ones, in the Appeal and would create the risk of inconsistent decisions. Thus, the Second Motion is out of order, and the Court should strike it. Legal Newsline Has Not Given Due Notice of the Second Motion 12. In addition to the jurisdictional flaws, Legal Newslines Second Motion is

defective for failure to give proper notice to potentially affected persons. 13. Legal Newslines Second Motion is notably vague as to the scope of the materials

to which it seeks access. Potentially, however, that scope is very broad. The Estimation Hearing generated many types of materials from thousands of claimants, hundreds of law firms, and many other persons whose interests were safeguarded by various confidentiality orders entered by this Court. These orders each contain requirements for providing notice prior to any

modification of the orders. See, e.g., Order Authorizing the Debtors to Issue Questionnaire to Holders of Pending Mesothelioma Claims and Governing the Confidentiality of Information Provided in Responses at 18, dated June 21, 2011 [Dkt. No. 1390] (Any person who seeks

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relief from any provision of this Order shall do so by motion in the Bankruptcy Court on notice to the Estimation Parties, any Intervenors, and Mesothelioma Claimants determined by prior order of the Bankruptcy Court to be potentially affected by the relief sought. (emphasis added)). 14. Legal Newsline has not made any effort to provide notice to claimants, law firms,

trusts, and other absent persons whose rights and interests stand to be prejudiced by the Second Motion. This Court should thus strike Legal Newslines Second Motion for failure to afford the potentially affected persons notice and an opportunity to be heard. An elementary and

fundamental requirement of due process in any proceeding . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Hanover, 339 U.S. 306, 314 (1950). 15. Legal Newsline filed its Second Motion on the ECF system and thereby provided

notice to persons registered to receive service by that medium. But the population of persons who provided information in reliance on the protective orders that Legal Newsline is seeking to override extends far beyond the few entities that have so registered. 16. No doubt, there are practical problems involved in making valid service upon

affected persons insofar as identifying information for many of those persons is not public. This does not, however, obviate those persons rights to notice and an opportunity to be heard. If Legal Newslines Second Motion or any similar request ever comes within the proper jurisdiction of this Court, a mechanism should be created for providing valid notice and an opportunity to be heard to such persons without publicly revealing their identities. Because It would be Legal Newslines responsibility as the movant to provide these persons with notice, the expense of doing so would be for Legal Newslines account.

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CONCLUSION For the foregoing reasons, the Court should strike Legal Newslines Second Motion, and grant such other and further relief as required in the interests of justice.

Dated: March 14, 2014

Respectfully submitted, CAPLIN & DRYSDALE, CHARTERED By: /s/ Trevor W. Swett III Trevor W. Swett III James P. Wehner Todd E. Phillips One Thomas Circle, N.W. Washington, DC 20005 Telephone: (202) 862-5000 E-mail: tswett@capdale.com; jwehner@capdale.com; tphillips@capdale.com Elihu Inselbuch 600 Lexington Avenue, 21st Floor New York, NY 10022 Telephone: (212) 379-6000 E-mail: einselbuch@capdale.com Co-Counsel for the Official Committee of Asbestos Personal Injury Claimants

MOON WRIGHT & HOUSTON, PLLC Travis W. Moon 227 West Trade Street, Suite 1800 Charlotte, NC 28202 Telephone: (704) 944-6560 E-mail: tmoon@mwhattorneys.com Co-Counsel for the Official Committee of Asbestos Personal Injury Claimants

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UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division

In Re: GARLOCK SEALING TECHNOLOGIES LLC, et al. Debtors. 1

) ) ) ) ) ) ) )

Chapter 11 Case No. 10-31607 Jointly Administered

NOTICE OF HEARING PLEASE TAKE NOTICE that the Official Committee of Asbestos Personal Injury Claimants (the Committee) in the above-captioned case filed its MOTION OF THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS TO STRIKE LEGAL NEWSLINES SECOND MOTION FOR ACCESS TO THE ESTIMATION HEARING (the Motion to Strike) on March 14, 2014. PLEASE TAKE FURTHER NOTICE that your rights may be affected by the Motion to Strike. You should read the Motion to Strike carefully and discuss it with your attorney, if you have one in this bankruptcy case. If you do not have an attorney, you may wish to consult one. Written responses to the Motion to Strike, if any, must be filed on or before March 25, 2014 (the Response Deadline) in order to be considered. If you do not want the Court to order the relief requested in the Motion to Strike, or if you want the Court to consider your views on the Motion to Strike, you or your attorney must: 1. (A) File a formal, written response with the Bankruptcy Court on or before the Response Deadline at: Clerk, United States Bankruptcy Court Charles Jonas Federal Building 401 West Trade Street Charlotte, North Carolina 28202 (B) If you have your attorney file a written objection then the objection should be filed with the Bankruptcy Court by electronic means through the Courts website, www.ncwb.uscourts.gov under the jointly administered name and case number shown above.
1

The Debtors in these jointly administered cases are Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and the Anchor Packing Company.

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2.

Serve a copy of your response on all parties in interest, including: Trevor W. Swett James P. Wehner Todd E. Phillips Caplin & Drysdale, Chartered 1 Thomas Circle, NW, Suite 1100 Washington, DC 20005 Albert F. Durham Rayburn Cooper & Durham, P.A. 227 W. Trade Street, Suite 200 Charlotte, NC 28202 Jonathan P. Guy Orrick, Herrington & Sutcliffe LLP Columbia Center 1152 15th Street, NW Washington, DC 20005 A. Cotten Wright Grier Furr & Crisp, PA 101 North Tryon Street, Suite 1240 Charlotte, NC 28246 Stephen M. Russell, Jr. Van Laningham Duncan PLLC 300 N. Greene St., Suite 850 Greensboro, NC 27401 Travis W. Moon Moon Wright and Houston, PLLC 227 West Trade Street Suite 1800 Charlotte, NC 28202 Garland S. Cassada Jonathan C. Krisko Robinson, Bradshaw & Hinson, P.A. 101 North Tryon Street, Suite 1900 Charlotte, NC 28246 Daniel G. Clodfelter Moore Van Allen PLLC 100 North Tryon Street Suite 4700 Charlotte, NC 28202 Linda W. Simpson U.S. Bankruptcy Administrator 402 W. Trade Street, Suite 200 Charlotte, NC 28202

3. If you do not want the Court to grant the relief requested in the Motion to Strike or if you want the Court to consider your views on the Motion to Strike, then you or your attorney should attend the hearing at 9:30 a.m. on THURSDAY, March 27, 2014, before the Honorable George R. Hodges in Bankruptcy Courtroom 126, 401 West Trade Street, Charlotte, North Carolina.

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If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief sought and may enter an Order granting the relief requested. No further notice of that hearing will be given. Dated: March 14, 2014 Respectfully submitted,

CAPLIN & DRYSDALE, CHARTERED By: /s/ Trevor W. Swett III Trevor W. Swett III James P. Wehner Todd E. Phillips One Thomas Circle, NW Suite 1100 Washington, DC 20005 Telephone: (202) 862-5000 Facsimile: (202) 429-3301 E-mail: tswett@capdale.com; jwehner@capdale.com; tphillips@capdale.com Elihu Inselbuch 600 Lexington Avenue, 21st Floor New York, NY 10022 Telephone: (212) 379-6000 Facsimile: (212) 379-6001 E-mail: einselbuch@capdale.com

MOON WRIGHT & HOUSTON, PLLC Travis W. Moon (Bar No. 3067) 227 West Trade Street Suite 1800 Charlotte, NC 28202 Telephone: (704) 944-6560 Email: tmoon@mwhattorneys.com Co-Counsel for the Official Committee of Asbestos Personal Injury Claimants

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UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division : : : : : : : :

In re: GARLOCK SEALING TECHNOLOGIES, LLC, et al., Debtors.

1

Case No. 10-31607 Chapter 11 Jointly Administered

[PROPOSED] ORDER REGARDING THE MOTION OF THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS TO STRIKE LEGAL NEWSLINES SECOND MOTION FOR ACCESS TO THE ESTIMATION HEARING Upon consideration of the Motion of the Official Committee of Asbestos Personal Injury Claimants (the Committee) to Strike Legal Newslines Second Motion for Access to the Estimation Hearing (the Motion to Strike), the opposition and reply papers thereto (if applicable), and the arguments and submissions of counsel presented at the hearing of March 27, 2014; and it appearing that due and sufficient notice of the Motion to Strike has been given and that no other or further notice need be provided; and the Committee having demonstrated upon
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The Debtors are Garlock Sealing Technologies LLC (Garlock), Garrison Litigation Management Group, Ltd., and The Anchor Packing Company (collectively, the Debtors).

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the record herein good cause for the relief requested in the Motion to Strike and that such relief would serve the best interests of the estates and creditors; and after due deliberation; IT IS HEREBY ORDERED that; 1. 2. The Committees Motion to Strike is GRANTED. The Motion by Legal Newsline to Unseal the Trial Testimony and Exhibits on

Which the Court Based Its January 10, 2014 Order Estimating Aggregate Liability is hereby stricken. 3. The hearing to be held on the Motion by Legal Newsline to Unseal the Trial

Testimony and Exhibits on Which the Court Based Its January 10, 2014 Order Estimating Aggregate Liability, scheduled for April 17, 2014, is hereby removed from this Courts calendar.

4.

This Court shall retain jurisdiction with respect to all matters relating to the

interpretation or implementation of this Order.

This Order has been signed electronically. The Judge's signature and Court's seal appear at the top of this Order.

United States District Court