IN RE JOINT EASTERN & SOUTHERN DIST. ASBESTOS LIT.

Nos. 692-696, Dockets 95-5004(L), 95-5006, 95-5010, 95-5014 and 95-5016.

78 F.3d 764 (1996)

In re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION (Two Cases). In re JOHNS-MANVILLE CORPORATION, Debtor (Two Cases). Bernadine K. FINDLEY, as Executrix of the Estate of Hilliard Findley, Uma Lail Caldwell, as Executrix of the Estate of Odell Caldwell, Joseph C. Jones, James William Barnette, Jr., on behalf of themselves, and all others similarly situated as beneficiaries of the Manville Personal Injury Settlement Trust, Edward Lindley, Plaintiff Class, Future Claimants, Leslie Gordon Fagen, as legal representative of future claimants, on behalf of future claimants of the Manville Personal Injury Settlement Trust and the Subclass of Present Claimants, Plaintiffs-Appellees, Maryland Plaintiffs, Plaintiffs-Intervenors-Appellees, United States Fidelity and Guaranty Company, Plaintiff-Intervenor-Appellant, Porter-Hayden Co., a member of the Distributor Subclass, Intervenor-Appellant, Owens-Corning Fiberglass Corporation and Subclass 3, consisting of all beneficiaries of the Manville Trust who, as former producers, manufacturers, distributors, and/or installers of asbestos and asbestos-containing products, have or may have in the future contribution and/or indemnification claims against the Manville Trust (except for those distributors whose claims for contribution and/or indemnification are based on their distribution of asbestos-containing products of Manville Corp. (the Manville distributors subclass), shall be referred to as "the co-defendant Manufacturers subclass", and Manville Distributor Subclass Representatives E.J. Bartells Co. and J.T. Thorpe Co., on Behalf of Themselves and the Manville Distributor Subclass, Claimants-Appellants, MacArthur Subclass, Claimant-Appellee, v. Robert FALISE, Louis Klein, Jr., Christian E. Markey, Jr., and Frank Macchiarola, not individually but solely in their capacities as Trustees of the Manville Personal Injury Settlement Trust, Defendants-Appellees, Donald M. Blinken, Daniel Fogel, Francis H. Hare, Jr., John C. Sawhill, not individually but solely in their capacities as Trustees of the Manville Personal Injury Settlement Trust, Defendants, Subclass 1, consisting of the distributors of Johns-Manville products, excluding MacArthur Co. and its affiliated companies, which shall be referred to as "the Manville distributors subclass", Subclass 2, consisting of MacArthur Company and its affiliated companies, which shall be referred to as "the MacArthur subclass", Subclass 3, consisting of all beneficiaries of the Manville Trust who, as former producers, manufacturers, distributors, and/or installers of asbestos and asbestos-containing products, have or may have in the future contribution and/or indemnification claims against the Manville Trust (except for those distributors whose claims for contribution and/or indemnification are based on their distribution of asbestos-containing products of Manville Corp.) (The Manville distributors subclass), shall be referred to as "the co-defendant Manufacturers subclass", Subclass 4, consisting of all future beneficiaries of the Manville Trust who may file or bring asbestos claims against the trust in the future, which shall be referred to as "the future claimants subclass." When a claim is filed or brought the person bringing that claim will shift from this subclass to the applicable subclass encompassing present claimants against the Trust, Subclass 5, "Present Claimants Subclass", Subclass 6, "Pre-November, 1990 judgments and settlements subclass", Claimants-Appellees, Subclass of Future Claimants, Plaintiff-Intervenor-Appellee. Joseph F. AMATO, Jr., Frank E. Beavers, Alvin J. Bowles, Jr., Leonard D. Brown, Raymond Butler, Grover Claytor, Ray H. Cook, Dorothy M. Cooper, Personal Representative of the Estate of Edmond Cooper, Julia Cornwell, Personal Representative of the Estate of George Allen Cornwell, Leonard S. Crawford, Frank Pierce Crosby, Jr., Helen M. Davis, Personal Representative of the Estate of Francis Davis, Frank Eberhardt, Jr., Douglas E. Ellinger, Elizabeth Finelli, Personal Representative of the Estate of Nicholas Finelli, Russell J. Garner, William L. Goulart, Sr., Clifton F. Hess, Rex E. Hollis, Reuben Hurst, Frank A. Keelan, Priscilla P. Killeen, Personal Representative of the Estate of James Killeen, Roger Liller, Tommy Junior Linkous, Harrison O. McLeod, Ray Merrill, John W. Myers, Myrtle V. Pessagno and Barbara Wrenn, Personal Representatives of the Estate of Elwood T. Pessagno, Carl Poore, Bob A. Reed, Samuel Saylor, Richard P. Stepp, Richard H. Stuart, Anna Sugrue, Personal Representative of the Estate of John N. Sugrue, Harold E. Tewell, David A. Thomas, Donald Thompson, Stanley Lee Ward, James M. Whittles, James E. Wilson and Whitney L. Winegard, Claimants-Appellants, v. SUBCLASS 1, consisting of the distributors of Johns-Manville products, excluding MacArthur Co. and its affiliated companies, which shall be referred to as "the Manville distributors subclass", Owens-Corning Fiberglass Corporation and Subclass 3, consisting of all beneficiaries of the Manville Trust who, as former producers, manufacturers, distributors, and/or installers of asbestos and asbestos-containing products, have or may have in the future contribution and/or indemnification claims against the Manville Trust (except for those distributors whose claims for contribution and/or indemnification are based on their distribution of asbestos-containing products of Manville Corp.) (the Manville distributors subclass), shall be referred to as "the co-defendant Manufacturers subclass", and Manville Distributor Subclass Representatives E.J. Bartells Co. and J.T. Thorpe Co., on Behalf of Themselves and the Manville Distributor Subclass, Claimants-Appellees.

United States Court of Appeals, Second Circuit.

Decided February 21, 1996.


Attorney(s) appearing for the Case

Elihu Inselbuch, New York City (James Sottile, IV, Christian R. Pastore, Caplin & Drysdale, New York City, Ness, Motley, Loadholt, Richardson & Poole, Charleston, South Carolina, Wartnick, Chaber, Harowitz Smith & Tigerman, San Francisco, California, Wilentz Goldman & Spitzer, Woodbridge, New Jersey, Baron & Budd, Dallas, Texas, Rose, Klein & Marias, Los Angeles, California, on the brief), for Plaintiffs-Appellees.

Timothy J. Hogan, Baltimore, Maryland (Peter G. Angelos, Baltimore, Maryland, on the brief), for Plaintiffs-Intervenors-Appellees Maryland Plaintiffs in the consolidated appeals, and for Claimants-Appellants Amato et al., in No. 95-5016.

Bert W. Rein, Washington, D.C. (Wiley, Rein & Fielding, Washington, D.C., Michael P. Murphy, Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, New York, on the brief), for Plaintiff-Intervenor-Appellant United States Fidelity and Guaranty Company.

Francis J. Lawall, New York City (John B. Glendon, Charles H. Carpenter, Pepper, Hamilton & Scheetz, New York City on the brief, for Claimants-Appellants Manville Distributors in the consolidated appeals, and for Claimants-Appellees Manville Distributors in No. 95-5016; Robert S. Hillman, Louis G. Close, Jr., Gardner M. Duvall, Whiteford, Taylor & Preston, Baltimore, Maryland, on the brief for Intervenor-Appellant Porter Hayden Co.).

Anne E. Cohen, New York City (Roger E. Podesta, Sandra L. Cobden, Debevoise & Plimpton, New York City, on the brief), for Claimants-Appellants Owens-Corning Fiberglass Corporation and the Subclass of Codefendant Manufacturers in the consolidated appeals, and for Claimants-Appellees Owens-Corning Fiberglass Corporation and the Subclass of Codefendant Manufacturers in No. 95-5016.

John H. Faricy, Jr., Minneapolis, Minnesota (James J. Higgins, Boyar, Higgins & Suozzo, Morristown, New Jersey, on the brief), for Claimant-Appellee MacArthur Subclass.

James L. Stengel, New York City (Richard J. DeMarco, Jr., Laurie Strauch Dix, Steven J. Fink, Donovan Leisure Newton & Irvine, New York, New York, David T. Austern, Fairfax, Virginia, on the brief), for Manville Personal Injury Settlement Trust.

Before: KEARSE, WINTER, and CABRANES, Circuit Judges.


KEARSE, Circuit Judge:

This opinion deals with several asbestos-litigation appeals from a final judgment of the United States District Courts for the Eastern and Southern Districts of New York, Jack B. Weinstein, District Judge of the Eastern District and sitting by designation in the Southern District, and Burton R. Lifland, Chief Bankruptcy Judge of the Southern District (collectively the "Trial Courts" or "Courts"), approving...

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