Opinion
CASE NO. 95-20512.
July 29, 2005
Deborah E. Greenspan, Esq., Dickstein Shapiro Morin Oshinsky LLP, Washington, DC, Attorney for DOW CORNING CORPORATION AND THE DEBTOR'S REPRESENTATIVES.
Dianna L. Pendleton-Dominguez, Esq., St. Marys, OH, Attorney for THE CLAIMANTS' ADVISORY COMMITTEE.
STIPULATION AND ORDER DEFERRING RESPONSES TO MOTIONS FOR LEAVE TO FILE LATE PROOFS OF CLAIM OR LATE NOTICES OF INTENT
Reorganized Dow Corning Corporation, the Debtor's Representatives, and the Claimants' Advisory Committee (collectively, the "Petitioners") file this Stipulation and Order Deferring Responses to Motions for Leave to File Late Proofs of Claim or Late Notices of intent, and in support thereof state as follows:
1. On June 1, 2004 (the "Effective Date"), the Amended Joint Plan of Reorganization (the "Plan") became effective.
2. Only claimants who file timely claims are eligible to participate and receive distributions under the Plan. The Confirmation Order deemed as timely any proofs of claims filed by November 30, 1999.
3. After the November 30, 1999 deadline, claimants could still be eligible to participate under the Plan by filing, no later than 90 days after the Effective Date (i.e., August 30, 2004), a notice of intent with respect to a proof of claim that was timely filed on their behalf pursuant to Bankruptcy Rule 3005. See Annex A § 2.02(b)(i).
4. Pursuant to the process established by the District Court, a party who filed a late notice of intent could seek judicial consideration by filing a motion pursuant to the Federal Rules of Civil Procedure with this Court within 30 days after receiving notice from the Settlement Facility-Dow Corning Trust that her/his notice of intent was filed late (i.e., after August 30, 2004). See Annex A § 2.02(b)(iii).
5. In November 2004 Dow Corning received the Motion of Helen Talbott for Authorization to File a Late Claim (the "First Request"). Anticipating additional similar requests, including requests by parties who filed late notices of intent, the Petitioners filed a Preliminary Response to the First Request. The Petitioners requested that the Court defer consideration of the First Request on the merits so that an omnibus process could be established to address such requests in an efficient and uniform manner, to avoid piecemeal litigation, and to promote consistency in the resolution of late claim requests. The First Request remains pending with the Court.
6. To date, the Petitioners are aware of ten additional requests seeking to file a late notice of intent (requests by M.C. Takahashi, Delana Davis, Agnes M. Talkington, Pamela J. Fields, Ann M. Tomosky, Judith Wilhelm-Echols, Molly A. McKnight, Carolyn A. Bliss, Angela M. Elliott, and Terri Anderson). These requests vary in nature and need to be researched in order to provide an appropriate response to this Court. For instance, some requests allege grounds for relief while others are silent as to the reasons for the request. Others are procedurally defective in the manner that the request has been presented — for example, by filing a notice of appeal to the wrong court (i.e., the Sixth Circuit Court of Appeals).
7. Deferring consideration of requests for leave to file a late proof of claim or a late notice of intent until the Petitioners can submit a recommended process to this Court for handling such requests would be appropriate, and would promote judicial economy and consistency in addressing such requests. The Petitioners intend to present such a recommendation to the Court no later than September 16, 2005.
WHEREFORE, the Petitioners request that the Court defer the time period required for the filing of responses to any motions or other requests seeking authority to file late proofs of claim or late notices of intent until the Court has considered the Petitioners' procedural recommendations.
In light of the foregoing stipulations and representations, it is hereby
ORDERED that the time period in which to respond to motions or other requests seeking authority to file late proofs of claim or late notices of intent, including those motions or requests specified above, is hereby deferred until further notice; and it is further
ORDERED that the Petitioners, after consultation with the Claims Administrator, shall present to the Court their recommended procedures for the handling of requests for leave to file late proofs of claim or late notices of intent by September 16, 2005.