Case 19-10289-LSS Doc 2756 Filed 01/12/21 Page 1 of 8

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

:
In re: : Chapter 11
:
IMERYS TALC AMERICA, INC., et al, : Case No. 19-10289 (LSS)
: (Jointly Administered)
Debtors.1 :
: D.I. 2755

MOTION OF THE AD HOC COMMITTEE TO SEAL

OR REDACT THE AMENDED VERIFIED STATEMENT PURSUANT
TO RULE 2019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE

Brown Rudnick LLP (“Brown Rudnick”) and Morris James LLP (“Morris James” and,

together with Brown Rudnick, “Ad Hoc Committee Counsel”), on behalf of the Ad Hoc

Committee of Imerys Talc Litigation Plaintiffs (the “Ad Hoc Committee”), hereby move (the

“Motion”) pursuant to sections 105(a) and 107(c) title 11 of the United States Code (the

“Bankruptcy Code”), section 1028(d) of title 18 of the United States Code (“Section 1028(d)”)

and rule 9018-1(b) of the Local Rules of Practice and Procedure of the United States Bankruptcy

Court for the District of Delaware (the “Local Rules”) for entry of an order, substantially in the

form attached hereto as Exhibit A, authorizing the Ad Hoc Committee to file under seal certain

information in their Amended Verified Statement Pursuant To Bankruptcy Rule 2019 (the

“Amended 2019 Statement”), and in support of this Motion, the Ad Hoc Committee respectfully

states as follows:

1
The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification
number, are: Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada Inc.
(6748). The Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076.

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JURISDICTION

1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and

1334 and the Amended Standing Order of Reference from the United States District Court for the

District of Delaware, dated February 29, 2012.

2. Venue of these proceedings is proper in this District pursuant to 28 U.S.C.

§§ 1408 and 1409.

3. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2) and Westlake

Opco confirms its consent pursuant to Local Rule 9013-1(f) to entry of a final order by the Court

in connection with the Motion to the extent that it is later determined that the Court, absent

consent of the parties, cannot enter final orders or judgments in connection herewith consistent

with Article III of the United States Constitution.

4. The statutory predicates for the relief requested herein are sections 105(a) and

107(c) of the Bankruptcy Code, as supplemented by Local Rule 9018-1(b).

BACKGROUND

5. At all relevant times the Debtors were miners, processors and distribution of talc

and as a of their business operations, the Debtors have significant potential liabilities owed to

thousands of plaintiffs who have allegedly suffered significant personal injuries and wrongful

death that are directly and proximately caused by exposure to the Debtors’ products, including

claims of mesothelioma and ovarian cancer.

6. On February 13, 2019 (the “Petition Date”), the above-captioned (the “Debtors”)

each filed voluntary petitions in this Court commencing cases for relief under chapter 11 of the

Bankruptcy Code (the “Chapter 11 Cases”).

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7. The Debtors continue to manage and operate their businesses as debtors-in

possession. No bar date has yet been set in the Chapter 11 Cases that would require creditors

asserting claims against the Debtors for mesothelioma and ovarian cancer to file proofs of

claims.

8. On November 2, 2020, the Debtors filed a Motion to Compel Compliance with

Rule 2019 of the Federal Rules of Bankruptcy Procedure (the “Motion to Compel”) [Docket No.

2457], by and through which they sought to compel certain parties, including the Ad Hoc

Committee Counsel, to identify its members, the Morelli Law Firm and the Segal Law Firm

(collectively, the “Ad Hoc Committee Members”), and the Ad Hoc Committee Members’

clients.

9. On November 11, 2020, the Ad Hoc Committee filed a Response and Reservation

of Rights to the Motion to Compel [Docket No. 2498] in which it stated that it had informed the

Debtors that it would file a statement pursuant to Bankruptcy Rule 2019, before the hearing on

the Motion scheduled to consider the Motion to Compel. Further, the Ad Hoc Committee

expressly reserved all rights to defend, object or otherwise respond to any issues raised by the

Debtors or other parties in connection with the Motion or at any hearing on the Motion,

including, without limitation, with respect to the adequacy of such statement.

10. On November 16, 2020, the Ad Hoc Committee filed a sealed and redacted form

of Verified Statement Pursuant To Bankruptcy Rule 2019 (the “Verified Statement”) [Docket

No. 2525]. The unredacted version of the Verified Statement included the names and addresses

of the Ad Hoc Committee Members’ clients, as well as exemplars of their respective engagement

agreements, and Ad Hoc Committee Counsels’ engagement letters. Substantially

contemporaneously therewith, the Ad Hoc Committee filed a motion to seal [Docket No. 2526]

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(the “First Motion to Seal”), which sought to file under seal the names and addresses of certain

claimants (the “Claimant Information”), as well as the terms of compensation (the “Law Firm

Compensation,” and together with the Claimant Information, the “Redacted Information”) to be

received by the Ad Hoc Committee Members. Further, by the First Motion to Seal, the Ad Hoc

Committee proposed to provide unredacted copies of the Verified Statement to the Debtors,

counsel to any official committee and counsel to the future claims representative appointed in the

Chapter 11 Cases, and the Office of the United States Trustee, and the Court. The Ad Hoc

Committee also proposed to provide unredacted copies of the Verified Statement to other parties

upon request, subject to entry into a non-disclosure agreement.2

11. On December 17, 2020, the Court held a hearing at which time the Court

addressed the Motion to Compel, and the objections of Ad Hoc Committee and other similarly

situated parties. The Amended Verified Statement, as defined below, is the result of statements

made by the Court at the December 17, 2020 hearing. The Court never entered an order granting

or denying the First Motion to Seal.

12. Substantially contemporaneously herewith, the Ad Hoc Committee is filing its

Amended Verified 2019 Statement (the “Amended 2019 Statement”) which will provide the first

and last name of each claimant represented by the Ad Hoc Committee Members, the claimants’

address, and the disease from which the claimants suffer as a direct and proximate result of the

conduct for which the Debtors bear liability.

2
By the First Motion to Seal, the Ad Hoc Committee expressly reserved its right to seek entry of an Order,
after notice and an opportunity for hearing, that would not require the Ad Hoc Committee to provide unredacted
copies to parties, even if they execute a nondisclosure agreement in the event that the Ad Hoc Committee believed
that such request is for an improper purpose.

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RELIEF REQUESTED

13. By this Motion, the Ad Hoc Committee requests entry of an Order, a copy of

which is attached hereto, authorizing it to file under seal the names and addresses of the

claimants and the disease from which the claimants suffer (although not the stage of their

disease) (the “Additional Claimant Information”).

14. The Ad Hoc Committee proposes to provide unsealed copies of the Verified

Statement to the Debtors, counsel to any official committee and counsel to the future claims

representative appointed in the Chapter 11 Cases, and the Office of the United States Trustee,

and the Court. As with the First Motion to Seal, the Ad Hoc Committee will also provide copies

of the information to parties in interest, subject to entry into a non-disclosure agreement,

however, the Ad Hoc Committee expressly reserves the right to seek entry of an Order denying

such request even if the requesting party executes a nondisclosure agreement if the Ad Hoc

Committee believes that such request is for an improper purpose.

BASIS FOR RELIEF REQUESTED

15. As a preliminary matter, the public has a common law “right of access to judicial

proceedings and records.” Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d 183, 192 (3d

Cir. 2001). The Bankruptcy Code, however, permits courts, in appropriate circumstances, to

protect individuals from an undue risk of identity theft or other unlawful injury by limiting the

public’s access, placing papers under seal, or otherwise entering orders to prohibit the

dissemination of sensitive information. See 11 U.S.C. § 107(c); see also Cendant, 260 F.3d at

194 (noting the public’s right of access “‘is not absolute’” (quoting Littlejohn v. BIC Corp., 851

F.2d 673, 678 (3d Cir. 1988)); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 165

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(3d Cir. 1993) (“Although the right of access is firmly entrenched, so also is the correlative

principle that the right is not absolute.” (citation and internal quotation marks omitted)).

16. Section 107 of the Bankruptcy Code provides, in relevant part, as follows:

(b) On request of a party in interest, the bankruptcy court shall, and on the bankruptcy
court’s own motion, the bankruptcy court may—
(1) protect an entity with respect to a trade secret or confidential research,
development, or commercial information. . . .
**********
(c) (1) The bankruptcy court, for cause, may protect an individual, with respect to
the following types of information to the extent the court finds that disclosure of such
information would create undue risk of identity theft or other unlawful injury to the
individual or the individual’s property:
(A) Any means of identification (as defined in section 1028(d) of title 18)
contained in a paper filed, or to be filed, in a case under this title.
(B) Other information contained in a paper described in subparagraph
(A).
11 U.S.C. § 107. In addition, under section 105(a) of the Bankruptcy Code, the Court may

“issue any order, process, or judgment that is necessary or appropriate to carry of the provisions”

of the Bankruptcy Code. 11 U.S.C. § 105(a).

17. The Ad Hoc Committee files this Motion to protect the rights of individual

claimants, all of whom are suffering from either mesothelioma or ovarian cancer resulting from

the Debtors’ product. Accordingly, the public disclosure of the names, addresses, and disease

type would, at its core, be a disclosure of the claimants’ medical condition, which could then be

easily found by anyone with access to Google. But even putting aside the individual perception

of embarrassment by each claimant, the disclosure of the names, addresses, and disease type of

individuals who have not filed public claims may expose them to identity theft, or other unlawful

injury which could result from the disclosure of the names and addresses, such as harassment.

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18. The Ad Hoc Committee respectfully submits that sealing the information on the

terms set forth herein, balances the need for information by those parties who may need it as part

of the bankruptcy process, while protecting the rights to privacy of the claimants.

19. Based upon the foregoing, the Ad Hoc Committee respectfully submits sufficient

cause exists for the Court to permit the filing of the Verified Statement to be filed under seal

pursuant to section 107(c) of the Bankruptcy Code.

NOTICE

20. Notice of this Motion, has been served by first class mail and/or first class mail,

and by electronic mail to: (i) counsel to the Debtors, (ii) counsel to each official committee, and

(iii) the office of the United States Trustee. In light of the nature of the relief requested, the Ad

Hoc Committee respectfully submits that no further notice need be given.

WHEREFORE, the Ad Hoc Committee respectfully requests entry of the proposed Order

substantially in the form submitted herewith and such other and further relief as the Court may

[remainder of page left intentionally blank]

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deem just and proper.

Dated: January 12, 2021 MORRIS JAMES LLP

/s/ Jeffrey R. Waxman

Jeffrey R. Waxman (DE Bar No. 4159)
Eric J. Monzo (DE Bar No. 5214)
Brya M. Keilson (DE Bar No. 4643)
500 Delaware Avenue, Suite 1500 Wilmington, DE
19801 Telephone: (302) 888-6800
E-mail: jwaxman@morrisjames.com
E-mail: emonzo@morrisjames.com
E-mail: bkeilson@morrisjames.com

-and-

David J. Molton, Esquire (admitted pro hac vice)

Bennett S. Silverberg, Esquire (admitted pro hac vice)
BROWN RUDNICK LLP
Seven Times Square
New York, NY 10036
Telephone: (212) 209-4800
E-mail: DMolton@brownrudnick.com
E-mail: BSilverberg@brownrudnick.com

-and-

Sunni P. Beville, Esquire (admitted pro hac vice)

BROWN RUDNICK LLP
One Financial Center
Boston, MA 02111
Telephone: (617) 856-8200
E-mail: sbeville@brownrudnick.com

Co-Counsel to the Ad Hoc Committee of Imerys

Talc Litigation Plaintiffs

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

: Chapter 11
In re: :
: Case No. 19-10289 (LSS)
IMERYS TALC AMERICA, INC., et al, : (Jointly Administered)
:
Debtors.1 : Hearing Date: February 10, 2021 at 10:00 a.m.
: Objection Deadline: February 3, 2021 at 4:00 p.m.

NOTICE OF MOTION OF THE AD HOC COMMITTEE TO SEAL

OR REDACT THE AMENDED VERIFIED STATEMENT PURSUANT
TO RULE 2019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE

To: counsel for the Debtors; counsel for each of the Official Committees; the Office of the United States
Trustee; and each of the parties having entered their appearance in these cases

On January 12, 2021, the Ad Hoc Committee of Imerys Talc Litigation Plaintiffs (the
“Movants”) filed a Motion to Seal or Redact the Amended Verified Statement Pursuant to Rule
2019 of the Federal Rules of Bankruptcy Procedure (the “Motion”).

If you object to the relief sought by the Motion, you are required to file a response to the Motion
on or before 4:00 p.m. on February 3, 2021.

At the same time, you must also serve a copy of the response upon Movant’s attorneys:

Jeffrey R. Waxman, Esquire David J. Molton, Esquire

Eric J. Monzo, Esquire Bennett S. Silverberg, Esquire
Brya M. Keilson, Esquire BROWN RUDNICK LLP
Morris James LLP Seven Times Square
500 Delaware Avenue, Suite 1500 New York, NY 10036
Wilmington, DE 19801 E-mail: DMolton@brownrudnick.com
E-mail: jwaxman@morrisjames.com E-mail: BSilverberg@brownrudnick.com
E-mail: emonzo@morrisjames.com
E-mail: bkeilson@morrisjames.com -and-
Sunni P. Beville, Esquire (admitted pro hac vice)
BROWN RUDNICK LLP
One Financial Center
Boston, MA 02111
Telephone: (617) 856-8200
E-mail: sbeville@brownrudnick.com

1
The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are:
Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada Inc. (6748). The
Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076.

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IF OBJECTIONS ARE FILED, A HEARING ON THE MOTION WILL BE HELD ON

FEBRUARY 10, 2021 AT 10:00 A.M.

IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY
GRANT THE RELIEF DEMANDED BY THE MOTION WITHOUT FURTHER NOTICE OR
HEARING.

Dated: January 12, 2021 /s/ Jeffrey R. Waxman

Jeffrey R. Waxman
Counsel for Movant

2
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Exhibit A

Proposed Order

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

:
In re: : Chapter 11
:
IMERYS TALC AMERICA, INC., et al, : Case No. 19-10289 (LSS)
: (Jointly Administered)
Debtors.1 :
: Re D.I. 2755

ORDER GRANTING MOTION OF THE AD HOC COMMITTEE TO SEAL

THE AMENDED VERIFIED STATEMENT PURSUANT TO RULE 2019 OF
THE FEDERAL RULES OF BANKRUPTCY PROCEDURE

Upon the motion (the “Motion”)2 of Brown Rudnick LLP (“Brown Rudnick”) and Morris

James LLP (“Morris James” and, together with Brown Rudnick, “Ad Hoc Committee Counsel”),

on their own behalf and on behalf of the Ad Hoc Committee of Imerys Talc Litigation Plaintiffs

(the “Ad Hoc Committee”), for entry of an order, pursuant to sections 105(a) and 107 of the

Bankruptcy Code, and Local Rule 9018-1(b), authorizing it to file under seal verified statement

that contain the names and addresses of certain of the claimants; it appearing that cause exists to

grant the relief requested in the Motion; and this Court having jurisdiction over this matter

pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the

United States District Court for the District of Delaware, dated February 29, 2012; and this Court

having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court

being able to issue a final order consistent with Article III of the United States Constitution; and

this Court having found that venue of this proceeding and the Motion in this District is proper

1
The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification
number, are: Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada Inc.
(6748). The Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076.
2
Capitalized terms used by not otherwise defined herein shall have the meaning ascribed to such terms in the
Motion.

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before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the

Motion having been provided under the particular circumstances, and it appearing that no other

or further notice need be provided; and after due deliberation; and sufficient cause appearing

therefor, it is hereby

ORDERED, ADJUDGED, AND DECREED THAT:

1. The Motion is GRANTED as set forth herein.

2. The Ad Hoc Committee is authorized to file the sealed form of Amended Verified

Statement Pursuant to Bankruptcy Rule 2019 (the “Amended Verified Statement”) as set forth

herein.

3. The Ad Hoc Committee will provide a copy of the Amended Verified Statement

to Debtors’ counsel, counsel to any official committee and counsel to the future claims

representative appointed in the Chapter 11 Cases, and the Office of the U.S. Trustee.

4. The Ad Hoc Committee will provide copies of the Amended Verified Statement

to other parties upon request, subject to entry into a non-disclosure agreement, however nothing

shall impair the right of the Ad Hoc Committee to seek entry of an Order, after notice and an

opportunity for hearing, that would not require the Ad Hoc Committee to provide a copy to

parties, even if they execute a nondisclosure agreement, in the event that the Ad Hoc Committee

believes that such request is for an improper purpose.

5. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry.

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6. This Court shall retain jurisdiction with respect to all matters arising from or

relating to the interpretation or implementation of this Order.

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