Opinion
Case Nos. 99-CV-75799-DT, 99-CV-75922-DT, 99-CV-75923-DT, 99-CV-75924-DT, 99-CV-75925-DT, 99-CV-75927-DT, 99-CV-75929-DT, 99-CV-75930-DT, 99-CV-75958-DT, 99-CV-75959-DT, 99-CV-75960-DT, 99-CV-76007-DT, 99-CV-76008-DT, 99-CV-76009-DT, 99-CV-76010-DT, 99-CV-76063-DT, 99-CV-76214-DT, 99-CV-76215-DT, 00-CV-70029-DT, 00-CV-70076-DT, 00-CV-70176-DT, 00-CV-70177-DT, 00-CV-70178-DT, 00-CV-70179-DT.
April 7, 2000
SCHEDULING ORDER RE ABOVE-CAPTIONED APPEALS AND VARIOUS MOTIONS
Introduction
A hearing was held on the Joint Motion by the Debtor Dow Corning Corporation and the Official Committee of Tort Claimants to Consolidate Pending Appeals, Set Briefing Schedule and Convene Status Conference and various parties' motions to extend time to file appellate briefs.
Written responses were filed and various parties presented their positions on procedures relating to setting briefing schedules and hearings on the issues presented on appeal.
Appeals have been filed from the Bankruptcy Court's November 30, 1999 Confirmation Order and the Bankruptcy Court's December 21, 1999 Opinion on Best-Interests-Of-Creditors Test, Feasibility, and Whether Plan and the Proponents Comply with the Applicable Provision of Title 11.
Various motions relating to the appeals have also been filed, including, a Motion to Vacate the December 21, 1999 Opinion, a Motion for Withdrawal of the Reference, and a Motion to Dismiss the appeals filed from the December 21, 1999 Opinion.
The Court is mindful of the importance to the Debtor, the Tort Claimants' Committee, numerous individual claimants, the various creditors, and the Shareholders of an expeditious, concise, and straightforward resolution of the issues currently before the Court. To expeditiously resolve the matters before the Court and in the interest of judicial economy, the Court will hear the matters at the same time. For purposes of having a uniform briefing schedule and hearing oral arguments on the matters at the same time only, the Proponents' Motion to Consolidate the Pending Appeals, Set Briefing Schedule and Convene Status Conference, and, otherwise, DENIED without prejudice.
Various parties' motions to extend the appeal briefing schedule are GRANTED.
A review of this Court's docket and the Bankruptcy Court's docket, indicates that given the latest notices of appeals (filed on January 10, 2000), the designation and cross-designation of records should be completed by January 31, 2000, with transmittal dates to the District Court and entry on the District Court docket estimated to occur between February 1 and February 4, 2000. Based on these dates, the Court issues the following briefing schedule:
Appeal Briefs
The Appellants of the November 30, 1999 Confirmation Order must file and serve an appellant's brief by Friday, February 18, 2000.
The Appellees of the November 30, 1999 Confirmation Order and the Appellants of the December 21, 1999 Opinion must file and serve an appellee's and/or appellant's brief by Monday, March 13, 2000.
The Appellees of the December 21, 1999 Opinion must file and serve an appellee's brief by Tuesday, March 28, 2000. The Appellants of the November 30, 1999 Confirmation Order must also file and serve a reply brief by Tuesday, March 28, 2000.
The Appellants of the December 21, 1999 Opinion must file and serve a reply brief by Tuesday, April 4, 2000.
Form of Briefs
If any party is both an appellant and appellee on appeal, that party may file a consolidated appellant and appellee brief in response and/or in reply, so long as the parties expressly so note on their briefs. The parties may consolidate and/or incorporate arguments from other briefs, so long as the parties expressly so note on their briefs.
For example: the Appellants of the December 21, 1999 opinion who are Appellees on the November 30, 1999 order appeal may file a consolidated Appellant/Appellee brief and the Appellants of the November 30, 1999 order may file a consolidated response to the December 21, 1999 opinion appeal brief and reply to the November 30, 1999 order appeal brief; or, as Proponents requested at oral arguments, they may file four (4) consolidated briefs in response to the November 30, 1999 order appellants' briefs, which may also be labeled Proponents' appellant brief.
Prior Appeals
The Court is aware that prior to the entry of the Confirmation Order, several appeals were filed. The parties to those appeals should determine whether they will pursue those appeals, and, if so, should abide by the briefing schedule set forth in this Order. Any appeals and motions filed in those appeals will be considered along with the matters subject to this Order if timely filed. The appeals filed prior to the November 30, 1999 Confirmation Order are case numbers: 99-CV-73574-DT, 99-CV-73657-DT, 99-CV-73658-DT, 99-CV-73659-DT, 99-CV-73941-DT, 99-CV-74218-DT, and 99-CV-75380-DT.
Notice re Dismissals for Failure to Prosecute an Appeal
If any Appellant does not file an Appellant's brief according to this schedule, or does not otherwise follow any of the procedural rules on appeal according to the Bankruptcy Rules, their appeal is subject to dismissal pursuant to Bankruptcy Rule 8001(a) and E.D. Mich. LR 41.2 for failure to prosecute an appeal.
Motion Briefs
Any response to any motion filed to date must be filed and served by Friday, January 28, 2000.
Any reply to any response must be filed and served by Tuesday, February 8, 2000.
Any motion to dismiss any pending appeal, which has not been filed to date, must be filed by Friday, February 11, 2000. The briefing schedule set forth in E.D. Mich. LR 7.1 will govern those motions.
Case Management Order
In connection with the implementation of the Plan entered by the Bankruptcy Court, the Proponents have submitted a proposed Case Management Order ("CMO") to be entered by this Court. The CMO will govern the procedures of the claims which will come before this Court. Any comments on the proposed CMO must be filed and served by Tuesday, February 18, 2000.
Case Numbers and other Filing Requirements
The parties must use the case number(s) assigned to their case or to the case they are responding to. Any documents must be delivered and filed with:
United States District Court Eastern District of Michigan Dow Litigation Unit, Room 128 231 West Lafayette Detroit, MI 48226 (313) 234-5090
Hearing Dates
A hearing on all of the appeals, motions and the proposed Case Management Order will begin on Wednesday, April 12, 2000, 10:00 a.m. The hearing will continue on April 13, 2000, if needed.IT IS SO ORDERED.
ORDER SETTING PROCEDURE FOR ORAL ARGUMENT INTRODUCTION
This matter is before the Court on Motions filed by the Plan Proponents, the United States and other appellants, to establish a procedure for oral argument on various appeals and other motions filed by the parties set for hearing on April 12 and 13, 2000. Responses have been filed. The Court, having reviewed the various proposals, sets forth the following procedure for the oral argument:
WEDNESDAY, April 12, 2000 (10:00 a.m.)
Opening of Court Appearances Preliminary Matters
I. Appeals from the Good Faith, Classification and Treatment of Domestic Claims
TOTAL TIME: 190 Minutes
A. Appellants' Argument (100 minutes) 1. United States, Case No. 99-CV-75799-DT (25 minutes) 2. Rita Altig, et al., Case No. 00-CV-70076 (15 minutes) 3. Jacobs, Case No. 99-75960 (15 minutes) 4. Schroeder and Hustead, Case Nos. 99-CV-75958 and Case No. 99-CV-76008 (20 minutes) 5. Shiseido, Case No. 99-CV-76007 (10 minutes) 6. Nevada Claimants, Case No. 99-CV-75924 (15 minutes) B. Appellees' Argument (90 minutes) C. Appellants' Rebuttal (Only to the extent that time was reserved and not used)
II. Appeals With Respect to Release/Injunction Provisions
TOTAL TIME: 300 minutes
A. Appellants' (Plan Opponents) Argument (115 minutes) 1. Nevada Claimants, Case No. 99-CV-75924 (60 minutes) 2. Janet Lacy, et al., Case No. 99-CV-75925 (including Jama Russano (5 minutes), if permitted by Lacy counsel) (15 minutes) 3. Pennsylvania Steering Committee, Case No. 99-CV-76063 (30 minutes) 4. Jacobs, Case No. 99-CV-75960 (5 minutes) 5. Schroeder, Case No. 99-CV-75958 (5 minutes) B. Appellee/Appellants' Argument by Plan Proponents, Shareholders and Insurance Companies (150 minutes) 1. Appellee's Argument in Response 2. Appellants' Argument, Case Nos. 99-CV-76214, 99-CV-76215, 00-CV-70029, 00-CV-70176, 00-CV-70177 C. Appellees' Argument in Response to Case Nos. 99-CV-76214, 99-CV-76215, 00-CV-70029, 00-CV-70176, 00-CV-70177 (35 minutes) 1. United States (15 minutes) 2. Other Appellees' Arguments in Response (20 minutes) D. Appellants' Rebuttal (Plan Opponents) (Only to the extent that time was reserved and not used) E. Appellee/Appellants' Rebuttal (Plan Proponents, Shareholders and Insurance Companies) (Only to the extent that time was reserved and not used)
THURSDAY, April 13, 2000 (9:00 a.m.)
I. Appeals from the Classification and Treatment of Foreign Claims
TOTAL TIME: 150 minutes
A. Appellants' Argument (75 minutes) 1. Shainwald Foreign Claimants, Case No. 99-CV-75929 2. Australian Tort Claimants, Case No. 99-CV-75927 3. New Zealand Claimants, Case No. 99-CV-75923 B. Appellees' Argument (75 minutes) C. Appellants' Rebuttal (Only to the extent that time was reserved and not used)
II. Appeals from Allowance of Claims in the Litigation Facility
TOTAL TIME: 90 minutes
A. Appellants' Argument (45 minutes) 1. Physicians Committee, Case No. 99-CV-75930 (30 minutes) 2. Hampton Physicians, Case No. 99-CV-75922 (15 minutes) B. Appellees' Argument (45 minutes) C. Appellants' Rebuttal (Only to the extent that time was reserved and not used)
III. Arguments on Motion to Vacate/Withdraw Reference
TOTAL TIME: 30 minutes
A. Movants/Plan Proponents (15 minutes) B. Parties' Opposing Motions (15 minutes) C. Movants' Rebuttal (Only to the extent that time was reserved and not used)
IV. Motion to Dismiss Appeals from December 21 Opinion
TOTAL TIME: 30 minutes
A. Movants/United States (15 minutes) B. Plan Proponents (15 minutes) C. Movants' Rebuttal (Only to the extent that time was reserved and not used)
V. Denial of the Motion to Compel Appeal
TOTAL TIME: 60 minutes
A. Motion to Dismiss Appeal, Case No. 99-CV-75380 (30 minutes) 1. Movants (15 minutes) 2. United States (15 minutes) 3. Movants' Rebuttal (Only to the extent that time was reserved and not used) B. Merits of Appeal (30 minutes) 1. Appellants' Argument (United States), Case No. 99-CV-75380 (15 minutes) 2. Appellees' Argument (15 minutes) 3. Appellants' Rebuttal (Only to the extent that time was reserved and not used)
VI. The Proposed Case Management Order
TOTAL TIME: 60 minutes
A. Plan Proponents (30 minutes) B. Plan Opponents (30 minutes) C. Plan Proponents' Rebuttal (Only to the extent that time was reserved and not used)
COORDINATION AMONG SIMILARLY SITUATED PARTIES
The parties are grouped together for the purposes of oral argument shall consult among themselves prior to oral argument to ensure that the general allocations made are accurate and notify the Court of changes made in the allocations within the time allowed. Parties should attempt to coordinate their presentations to avoid needless duplication of arguments. No later than 9:30 a.m. on April 12, 2000, each Appellant and Appellee will present the Court with a single list of the individuals who will be making presentations, the issues they will be addressing (identified by reference to the headings in this Order), the parties on whose behalf they will speak, and the time allocated to them.The Court reserves the right to change the schedule accordingly.
IT IS SO ORDERED.