Case 17-31795 Doc 1981 Filed 08/16/21 Entered 08/16/21 19:13:47 Desc Main

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UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

IN RE:
Case No. 17-BK-31795 (LTB)
1
BESTWALL LLC,
Chapter 11
Debtor.

MOTION TO INTRODUCE UNREDACTED OBJECTIONS OF ILLINOIS

CLAIMANTS TO PIQ ORDER

Bestwall LLC (“Bestwall” or the “Debtor”), the debtor and debtor in possession in the

above-captioned chapter 11 case, brings this Motion in an abundance of caution to ensure it will

be able to introduce at the compliance hearing scheduled for August 19, 2021 (the “Compliance

Hearing”) the objections made by the Illinois Claimants to the claims agent (Donlin Recano)

(the “Illinois Claimant Objections”) in response to this Court’s Order Pursuant to Bankruptcy

Rule 2004 Directing Submission of Personal Injury Questionnaires by Pending Mesothelioma

Claimants and Governing the Confidentiality of Responses (Dkt. 1670) (the “PIQ Order”).2 In

support thereof, the Debtor respectfully represents as follows:

BACKGROUND

1. At the show cause hearing on July 22, 2021, the Court found that the Illinois

Claimants and Maune, Raichle, Hartley, French & Mudd, LLC (“Maune Raichle,” and together

with the Illinois Claimants, the “Illinois Parties”) violated the PIQ Order by filing the lawsuit

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The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is 133 Peachtree
Street, N.E., Atlanta, Georgia 30303.
2
The Illinois Claimants are Patricia Blair, as personal representative for the Estate of Lee Blair; Violet Butler, as
personal representative for the Estate of Ralph Butler; Betty Jean Camilleri, as personal representative for the Estate
of Terrence Camilleri; Cheryl D. Wooter, as personal representative for the Estate of William Cutler; Sheryl Evans;
Kimberly Plant, as special administrator of the Estate of Sheryl Evans; Maria Fons, as personal representative for the
Estate of Miguel Fons; John Guzman, as personal representative of the Estate of Joe Guzman; Christopher Nelson,
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captioned Blair et al. v. Bestwall LLC, No. 3:21-cv-00675-SMY (S.D. Ill.) (the “Illinois

Lawsuit”) and are in contempt of the PIQ Order. 7/22/21 Tr. at 67-73. The Bankruptcy Court

gave the Illinois Parties the opportunity to purge their contempt by dismissing the Illinois

Lawsuit. The Illinois Parties declined that opportunity and chose to continue litigating the Illinois

Lawsuit. After further litigation, Judge Yandle in the U.S. District Court for the Southern District

of Illinois dismissed the Illinois Claimants’ complaint with prejudice under Civil Rules 12(b)(1)

and 12(b)(2) for lack of subject matter jurisdiction and lack of personal jurisdiction, and later

entered judgment consistent with her ruling.

2. On July 22, the Court continued the matter to August 19, 2021 at 9:30 a.m.. for a

compliance hearing, holding that “if the Illinois claimants and Maune Raichle firm have failed to

purge their contempt, the Court will likely impose a daily fine in an amount to be determined and

regardless of whether they have purged their contempt, the Court will consider whether to award

compensatory damages for the fees and expenses the debtor has incurred in defending the Illinois

lawsuit and prosecuting this contempt proceeding and will consider evidence at that time

regarding the fees and expenses incurred at that hearing.” 7/22/21 Tr. at 72.

3. At the Compliance Hearing, the Debtor intends to introduce the Illinois Claimant

Objections. The PIQ Order required the Illinois Claimants (and all Pending Mesothelioma

Claimants as defined in that order) to complete and return Questionnaire responses to the claims

agent (Donlin Recano) by July 26, 2021. PIQ Order ¶¶ 4, 5. Far from submitting full and

complete responses as required by the PIQ Order, the Illinois Claimants all submitted objections

that had no substantive information whatsoever. The objections simply identified the claimant

and law firm, and then asserted the very same objections (such as lack of personal jurisdiction

as personal representative for the Estate of Roger Nelson; and Melissa Taylor, as personal representative for the
Estate of Donald Taylor.

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and the absence of a subpoena) that this Court rejected on July 22 in proceedings where those

claimants were represented. All of the objections and non-responses were also submitted late

(postmarked on July 29 or 30).

4. Paragraph 14 of the PIQ Order provides:

If, in the course of this bankruptcy case, any Party intends to offer into evidence
or otherwise use Questionnaire Responses in connection with testimony,
argument, or filings in this Court, or any reviewing court, such Party shall provide
at least ten days written notice to the Pending Mesothelioma Claimant or Pending
Mesothelioma Claimants who provided the Questionnaire Response (via counsel,
where applicable) and may not divulge Questionnaire Responses except when the
following conditions are met: (a) such information is relevant to this bankruptcy
case; (b) there is no reasonable manner to use such information without disclosing
Questionnaire Responses; and (c) such Party has redacted or filed a proper motion
to seal (or, in the case of categories (iii) and (vi) sought Court approval through a
motion with notice to affected Pending Mesothelioma Claimants to introduce) (i)
Social Security numbers (except last four digits), (ii) dates of birth (except year),
(iii) names and addresses of claimant, claimant family members, and identifiable
minors (except for their initials), (iv) financial account numbers (except last four
digits), (v) medical information (except claimed disease, such as ‘pleural
mesothelioma,’ ‘peritoneal mesothelioma,’ and diagnosis date), and (vi)
settlement amounts.

5. On August 9 (ten days before the Compliance Hearing), the Debtor informed

counsel for the Illinois Claimants by letter and emails that the Debtor intends to introduce the

Illinois Claimant Objections at the Compliance Hearing. The Debtor informed counsel for the

Illinois Claimants that the Debtor does not consider these objections to be “Questionnaire

Responses” within the meaning of the PIQ order because they are simply non-responses and

objections. Thus, the Debtor does not believe a motion is required to introduce the Illinois

Claimant Objections without the claimants’ names redacted, as would otherwise be required by

paragraph 14.

6. The Debtor asked counsel for the Illinois Claimants on August 9 to confirm that

the Illinois Claimants do not disagree with the Debtor on this point (or, in the alternative, to

consider the Debtor’s communication the ten days’ notice required by paragraph 14 of the PIQ

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Order). Counsel for the Illinois Claimants informed the Debtor on August 16 that they do

disagree with the Debtor’s interpretation.

7. The Debtor thus brings this Motion in an abundance of caution to ensure it can

introduce the Illinois Claimant Objections, with the Illinois Claimants’ names unredacted, at the

Compliance Hearing.

JURISDICTION AND VENUE

8. The Court has jurisdiction over this motion pursuant to 28 U.S.C. §§ 157 and

1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper before this

Court pursuant to 28 U.S.C. §§ 1408.

RELIEF REQUESTED

9. The Debtor respectfully requests that the Court enter an order, substantially in the

form attached hereto as Exhibit A, permitting the Debtor to introduce the Illinois Claimant

Objections without redacting the Illinois Claimants’ names. To the very limited extent the

Illinois Claimant Objections include other information required to be redacted by paragraph 14

of the PIQ Order, the Debtor will do so (for instance, one submission includes a full birthdate).

10. The Illinois Claimant Objections provide further evidence that the Illinois Parties

have not purged their contempt. Instead, the Illinois Claimants have violated the PIQ Order again

by failing to submit compliant Questionnaire Responses by the July 26 deadline, as required by

the PIQ Order that binds them. PIQ Order ¶¶ 4, 5. The evidence will show the Illinois Claimant

Objections were not simply deficient. Rather, they provided no substantive information

whatsoever, but merely asserted jurisdictional arguments the Court has already rejected in

proceedings in which the Illinois Parties participated (most recently, in the show cause hearing).

This constitutes further evidence of Maune Raichle’s and the Illinois Claimants’ contempt. See,

e.g., Maness v. Myers, 419 U.S. 449, 458 (1975) (“If a person to whom a court directs an order

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believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply

promptly with the order pending appeal.”). Far from purging their contempt, the Illinois Parties

have exacerbated it.

11. The Debtor can demonstrate these facts at the Compliance Hearing only by

introducing the Illinois Claimant Objections without the claimant names redacted. Thus, to the

extent the Illinois Claimant Objections constitute Questionnaire Responses, the “information is

relevant to this bankruptcy case” and “there is no reasonable manner to use such information

without disclosing Questionnaire Responses,” satisfying the criteria in paragraph 14 of the PIQ

Order.

WHEREFORE, the Debtor respectfully requests that the Court enter an order,

substantially in the form attached hereto as Exhibit A, permitting introduction of the Illinois

Claimant Objections without the claimant names redacted.

Dated: August 16, 2021 Respectfully submitted,

Charlotte, North Carolina
/s/ Garland S. Cassada
Garland S. Cassada (NC Bar No. 12352)
Richard C. Worf, Jr. (NC Bar No. 37143)
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
E-mail: gcassada@robinsonbradshaw.com
rworf@robinsonbradshaw.com

Gregory M. Gordon (TX Bar No. 08435300)

JONES DAY
2727 North Harwood Street, Suite 500
Dallas, Texas 75201
Telephone: (214) 220-3939
Facsimile: (214) 969-5100
E-mail: gmgordon@jonesday.com
(Admitted pro hac vice)

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Jeffrey B. Ellman (GA Bar No. 141828)

JONES DAY
1221 Peachtree Street, N.E., Suite 400
Atlanta, Georgia 30361
Telephone: (404) 581-3939
Facsimile: (404) 581-8330
E-mail: jbellman@jonesday.com
(Admitted pro hac vice)

ATTORNEYS FOR DEBTOR AND DEBTOR

IN POSSESSION