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Creditors Seek Judge's Removal In Asbestos Case

Credit Pacific Service Union In move that could prolong and complicate an already contentious bankruptcy case, creditors of Owens Corning, which was driven into Chapter 11 proceedings by asbestos lawsuits, are pressing for the removal of the presiding judge. Legal experts say the challenge by the creditors could be used to undermine the legitimacy of the judge's previous rulings in its case.

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Credit First Service Union The creditors filed a request on Oct. 10 for Federal District Judge Alfred M. Wolin in Newark to recuse himself from the case of Owens Corning - which faces hundreds of thousands of asbestos claims and has already paid $5 billion to settle many of those - on the grounds that some of his advisers faced a serious conflict of interest.

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Card Credit Mobile Service Dissatisfied with the judge's response, on Oct. 24 they went over his head, asking the United States Court of Appeals for the Third Circuit to order him either to step aside or speed up his consideration of the recusal motion. Then on Monday, a three-judge panel of the Third Circuit, which oversees Judge Wolin's court, ordered all interested parties in the bankruptcy case to respond to the creditors' request by Nov. 21. In the meantime, the judge's advisers have been ordered to provide statements outlining their work. And on Wednesday, Judge Wolin stayed proceedings in all five of the large bankruptcy cases he oversees.

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Card Credit Discover Service "That means they're taking this very seriously," Margaret A. Berger, a professor at Brooklyn Law School, said of the move by the appeals court. Intervening directly in a lower-court proceeding is unusual enough, she said, and doing so to order the lower-court judge to step out of the case is more so. "This is very odd," she remarked.

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Credit Public Service Union The problem, according to the creditors, is that two of Judge Wolin's outside advisers represent asbestos claimants in other asbestos-related bankruptcies. The creditors are Kensington International and Springfield Associates, two investment funds controlled by Elliott Associates and its affiliate, Elliott International, both private investment firms. They argue that as a result, the advisers do not have an impartial view of the judge's handling of the case and their presence creates at least an appearance of impropriety.

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Card Credit Processing Service In court filings, Kensington and Springfield assert that two consultants appointed to advise the court in managing the Owens Corning bankruptcy have for 22 months also represented people holding future asbestos claims against G-I Holdings, another company in bankruptcy proceedings as a result of asbestos. The creditors say the dual roles create a potential conflict of interest because the two advisers may have tried to persuade Judge Wolin to handle issues in the Owens Corning bankruptcy in a way that would help asbestos claimants in the G-I bankruptcy.

Center Credit Service Union "Because of the numerous similarities between these cases, the conflicted advisers have been able to advocate positions in G-I based upon this court's decisions - decisions that were issued while the conflicted advisers were assisting this court," the creditors wrote in support of their recusal motion. "The conflicted advisers have even gone so far as to tell the court in the G-I case how this court will rule on issues in the future, and to use that yet-to-be-issued decision as precedent for how the G-I court should rule."

Card Credit Service Wireless A clerk for Judge Wolin said he would not comment on the proceedings. One of the two advisers named by the creditors, C. Judson Hamlin, also declined to comment; the other adviser, David R. Gross, did not return phone calls seeking comment.

Credit Security Service Union But in his response to the appellate court's order calling for briefs on the recusal motion, Judge Wolin indirectly questioned the motives of the creditors, noting that it is his role "to ensure that any motion before it is presented for a proper purpose and not for purposes of delay or other, self-serving ends." For nearly two years, he wrote elsewhere, "No party has objected to the involvement of any of the court-appointed advisers."

Credit Report Service The timing of the motion may be suspect, the judge suggested. It was filed before he issued a ruling in the bankruptcy case on whether to consolidate all of Owens Corning's assets to satisfy creditors - a move that would reduce the amount that would be recovered by creditors like Kensington, Springfield and Credit Suisse First Boston (which, as an agent for other bank creditors, supported the motion in a separate filing). The creditors contend that they only recently obtained the information about the advisers' potential conflicts from their role in other asbestos bankruptcy cases.

Blogspot Com Christian The judge also defended his handling of the motion, writing that it was filed shortly before he began a 10-day trip out of New Jersey and that he had every intention of responding "with all deliberate speed."

Christian Counseling Credit The two advisers were appointed on Dec. 28, 2001, and their tasks were to include "mediation of disputes, holding case management conferences, and consultation with counsel," according to Judge Wolin's order. Any finding that they had a conflict of interest could pose a serious problem for the court and could be used by the creditors to question nearly two years' worth of rulings in the Owens Corning bankruptcy.

Credit Federal Service Union "I don't know how you undo that," Ms. Berger, the law professor, said. "Having another judge really only would operate in terms of future decisions," and revisiting the issues resolved by Judge Wolin would be very costly and time-consuming, she said. But, she cautioned, "We haven't heard the other side."

Credit Monitoring Service The other companies in bankruptcy cases before Judge Wolin are W. R. Grace, Armstrong World Industries, Federal-Mogul and USG. They, too, face hundreds of thousands of claims seeking billions of dollars by people who say they have suffered injury from exposure to asbestos made or used by the companies. The two creditors' motion could not only delay the process of determining how much current and future claimants may receive, but it could also extend the period of time that all five companies languish in bankruptcy proceedings.

Credit Division Service Andrew L. Kaufman, a law professor at Harvard who studies judicial ethics, said reliance on outside experts is risky. "We've got to trust our judges that they won't be the pawn of somebody," he said. "It's right to worry about it," he continued, but noted that it was possible simply to choose the wrong expert adviser. "If it turns out the judge made a mistake," he said, "then the judge made a mistake."

Card Credit Online Service Recusal is warranted "when the judge's impartiality may reasonably be questioned," Mr. Kaufman said. Motions asking judges to withdraw are relatively rare, he said, but are becoming more common as judges become more vocal about their personal views on issues and as they rely more often on experts for advice.

Consumer Counseling Credit Inc "When I first started getting interested in these issues," Mr. Kaufman said, "I thought that judges needed all the help they could get and that was not a bad idea. I've come to think it's a terrible idea."

Card Credit Fleet Service By Jonathan D. Glater
New York Times - 11/6/2003

Topic: Toxics

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