Case KJC Doc 4868 Filed 09/25/17 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

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1 Case KJC Doc 4868 Filed 09/25/17 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: EXIDE TECHNOLOGIES, Reorganized Debtor. Chapter 11 Case No (KJC) Hearing Date: September 28, 2017 at 1:00 p.m. (Eastern) Reply Deadline: September 25, 2017 at 4:00 p.m. (Eastern) Ref. Dkt. Nos. 4821, 4847, 4863, 4865 REPLY IN SUPPORT OF MOTION OF VERNON TORT CLAIMS TRUSTEE, PURSUANT TO 28 U.S.C. 1334, FOR ENTRY OF ORDER ABSTAINING FROM ADJUDICATING RELIEF REQUESTED IN REORGANIZED EXIDE S MOTION FOR INJUNCTIVE RELIEF Craig R. Jalbert, CIRA, solely in his capacity as trustee (the Tort Trustee ) of the Vernon Tort Claims Trust (the Tort Trust ), hereby files this reply in further support of the Motion of Vernon Tort Claims Trustee, Pursuant to 28 U.S.C. 1334, for Entry of Order Abstaining from Adjudicating Relief Requested in Reorganized Exide s Motion for Injunctive Relief [Dkt. No. 4847] (the Motion to Abstain ), 1 and respectfully states as follows: PRELIMINARY STATEMENT 1. The Tort Trustee is not seeking to recover against Reorganized Exide s personal assets in respect of the Parallel California Proceeding or the Recovery Litigation. Rather, through the Parallel California Proceeding, the Tort Trustee is seeking only limited relief to enable the Tort Trustee to proceed as against applicable insurance in the Recovery Litigation (as provided under the Plan/Term Sheet), notwithstanding Reorganized Exide s repeated postbankruptcy bad faith, misconduct, frustration, and breach of the Plan/Term Sheet (and the covenant of good faith and fair dealing). This relief is critically important, as the Recovery Litigation is likely the only opportunity for the Tort Trust beneficiaries (i.e., the victims of 1 Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Tort Trustee s Motion to Abstain, the Plan, and/or the Vernon Tort Claims Term Sheet, as applicable.

2 Case KJC Doc 4868 Filed 09/25/17 Page 2 of 14 Exide s Vernon facility) to obtain any material recovery on account of their injuries and losses. The California State Court where the Recovery Litigation has been pending for several years is the proper tribunal to adjudicate this post-bankruptcy dispute between the Tort Trustee and Reorganized Exide, not the Bankruptcy Court. 2. Reorganized Exide s principal basis for attempting to invoke this Court s postbankruptcy jurisdiction 2.5 years after Reorganized Exide emerged from bankruptcy that the Tort Trustee is purportedly seeking to undo the Plan and discharge injunction, and to proceed against [Reorganized] Exide with settled and discharged prepetition claims (Reorganized Exide Obj. 3, 32) is simply not true. The Tort Trustee is seeking to recover only against applicable insurance, and, thus, neither the Parallel California Proceeding nor the Recovery Litigation implicates the discharge or injunction provisions of the Plan, Confirmation Order, or Bankruptcy Code. 3. Reorganized Exide makes several other unavailing arguments in its Objection to the Tort Trustee s Motion to Abstain. 2 Reorganized Exide contends that the Tort Trustee is not permitted to even raise the issue of abstention because, pursuant to Article XIV of the Plan and the Confirmation Order, the Bankruptcy Court purportedly retained exclusive jurisdiction to hear and determine the post-bankruptcy dispute between the Tort Trustee and Reorganized Exide. Reorganized Exide Obj. 3, 8, 20, 21. But, the Bankruptcy Court explicitly declined to retain exclusive jurisdiction under Article XIV of the Plan and the Confirmation Order, cautioning Debtor s counsel at the Plan confirmation hearing that such exclusive jurisdiction clauses may lead to mischief. 2 See Reorganized Debtor s Objection to Motion of Vernon Tort Claims Trustee for Entry of an Order Abstaining from Adjudicating Reorganized Debtor s Motion to Enforce the Plan Injunction and Vernon Tort Claims Term Sheet, filed September 21, 2017 [Dkt. No. 4863] (the Reorganized Exide Objection or Reorganized Exide Obj. ). 2

3 Case KJC Doc 4868 Filed 09/25/17 Page 3 of Reorganized Exide alleges that, at an August 21, 2017 hearing before the California State Court in the Recovery Litigation, the California State Court deferred to the Bankruptcy Court in respect of this dispute between the parties. Reorganized Exide Obj. 3, 16. This contention misconstrues the context and events of the August 21st hearing. Reorganized Exide filed the Reorganized Exide Motion (without advance notice to the Tort Trustee) the morning of that hearing. Without a reasonable opportunity to review the Reorganized Exide Motion prior thereto, counsel to the Tort Trustee was blindsided at the August 21st hearing by Reorganized Exide s procedural gambit. After the hearing, the Tort Trustee was afforded an opportunity to review the Reorganized Exide Motion and immediately recognized what Reorganized Exide was attempting to do (i.e., end run a merits-based adjudication of the Tort Trustee s post-bankruptcy causes of action in respect of Reorganized Exide s breach of the Plan/Term Sheet). Accordingly, the Tort Trustee initiated the Parallel California Proceeding to squarely and fully adjudicate the matters raised therein. In this regard, the Tort Trustee notes that it initiated the Parallel California Proceeding in accordance with guidance provided by the United States District Court for the Central District of California (in procedurally infirm litigation brought by certain of Reorganized Exide s insurers) that certain matters raised before the District Court ha[ve] to be resolved in the state court. See, e.g., Motion to Abstain, Ex. 7 (July 27, 2017 Hr g Tr. at 29:21-31:12) (whether there has been a valid assignment is something that I cannot resolve because this is something that has to be resolved in state court ). 5. Reorganized Exide contends that the Parallel California Proceeding threatens [Reorganized] Exide s fresh start. Reorganized Exide Obj. 5, 45. This statement is unfounded. As noted above, the Tort Trustee is not seeking to recover against Reorganized 3

4 Case KJC Doc 4868 Filed 09/25/17 Page 4 of 14 Exide s personal assets, but rather only against applicable insurance, and the fresh start that Reorganized Exide has already obtained pursuant to the Plan and Confirmation Order is not threatened in any way. Indeed, according to published reports, since emerging from bankruptcy 2.5 years ago, Reorganized Exide appears to be performing quite well, with $619 million in reported revenue for the quarter ended June 2017 (beating year-over-year and projected revenues by tens of millions of dollars), and $2.8 billion in projected revenue for the fiscal year ended The Tort Trustee also feels obliged to explain the dispute with Reorganized Exide regarding what law should govern the assignment that Reorganized Exide is obligated to provide to the Tort Trustee under the Plan/Term Sheet (a dispute that Reorganized Exide blithely characterizes as spurious ), notwithstanding that this dispute is not properly before the Bankruptcy Court (although it is addressed in the Parallel California Proceeding). Reorganized Exide Obj. 2. The Tort Trustee has repeatedly requested an assignment governed by the law of California the jurisdiction where the Recovery Litigation is pending and the hundreds of victims of Reorganized Exide are situated because an assignment governed by California law most clearly provides for the accomplishment of the essential purpose of the Plan/Term Sheet (i.e., permitting the Tort Trustee to proceed with the Recovery Litigation as against applicable insurance). Without justification, Reorganized Exide has refused to provide an assignment governed by California law. On information and belief, Reorganized Exide (in apparent collusion with its insurers) refuses to provide such an assignment because the law of jurisdictions other than California is less settled, and it would be potentially more cumbersome and costly for the Tort Trustee to overcome the insurers potential technical, non-substantive arguments to 3 See Exide Tops Earnings Estimates For 1Q18; Raises FY18 Revenue Outlook, DEBTWIRE, September 12, 2017 ( Alert&utm_term=58e22deb b57df&userAlertProfileSysId=919234). 4

5 Case KJC Doc 4868 Filed 09/25/17 Page 5 of 14 attempt to defeat coverage. Such an outcome would frustrate the essential purpose of the Plan/Term Sheet, and Reorganized Exide s refusal to provide an assignment governed by California law further demonstrates the company s post-bankruptcy bad faith in respect of its obligations under the Plan/Term Sheet. 7. At bottom, the dispute between the Tort Trustee and Reorganized Exide is a postbankruptcy contract dispute (governed by applicable state law) that must be resolved through a full and fair process (such as the Parallel California Proceeding), that includes discovery, a full evidentiary hearing, and the right to a jury trial. Accordingly, the Bankruptcy Court should decline Reorganized Exide s invitation for the Bankruptcy Court to maintain perpetual jurisdiction over Reorganized Exide s post-bankruptcy affairs and should, instead, abstain from adjudicating the relief requested in the Reorganized Exide Motion. REPLY I. The Relief Requested In The Reorganized Exide Motion Is Not Predicated On Federal Bankruptcy Law; The Parallel California Proceeding Does Not Implicate The Plan Discharge. 8. Reorganized Exide argues that abstention is not appropriate because the relief requested in the Reorganized Exide Motion purportedly implicates the discharge provisions of the Plan and Confirmation Order and, therefore, arises under federal bankruptcy law. See Reorganized Exide Obj Reorganized Exide contends that, through the Parallel California Proceeding, the Tort Trustee is seeking to undo the Plan and discharge injunction, and to proceed against [Reorganized] Exide with settled and discharged prepetition claims. Reorganized Exide Obj. 3, However, through the Parallel California Proceeding, the Tort Trustee is seeking only limited relief as a means to pursue the Recovery Litigation as against applicable insurance likely the only opportunity for the Tort Trust beneficiaries (i.e., the victims of Exide s Vernon 5

6 Case KJC Doc 4868 Filed 09/25/17 Page 6 of 14 facility) to obtain any material recovery on account of their injuries and losses. Consistent with the discharge provisions of the Plan/Term Sheet and Confirmation Order, the Tort Trustee is not and will not be seeking any recovery against Reorganized Exide s personal assets in connection with the Parallel California Proceeding or the Recovery Litigation. Accordingly, and as set forth more fully in the Tort Trustee s Motion to Abstain and Objection to the Reorganized Exide Motion, 4 the discharge provisions of the Plan/Term Sheet, Confirmation Order, and Bankruptcy Code are not implicated by the Parallel California Proceeding (or the Recovery Litigation). 10. The vast majority of courts that have addressed this issue have held that, where a party is not seeking to recover against a debtor s personal assets, but rather is seeking to recover only against applicable insurance, a party may pursue a nominal action against a debtor without violating the discharge provisions of the Bankruptcy Code or a confirmed Chapter 11 plan. In Hendrix v. Page, the court analyzed the effect of a discharge in bankruptcy on litigation against the debtor s liability insurer outside of bankruptcy. Hendrix v. Page (In re Hendrix), 986 F.2d 195, 196 (7th Cir. 1993) (Posner, J.). The court held that the debtor s discharge did not prevent the plaintiff from proceeding in state court against the debtor, provided the plaintiff was seeking only proceeds from the debtor s insurance policy, because such a suit to collect merely the insurance proceeds and not the plaintiff s full damages... would not create a personal liability of the debtor. See id. at 197 ( [A]s to whether such an injunction extends to a suit only nominally against the debtor because the only relief sought is against his insured, the cases are pretty nearly unanimous that it does not. ). 11. In Winebrenner v. Morris, a creditor with a prepetition personal injury claim against the debtor moved for a determination that the discharge injunction did not prevent her 4 See Vernon Tort Claims Trustee s Objection to Reorganized Debtor s Motion for Entry of an Order (I) Enforcing the Plan Injunction and Vernon Tort Claims Term Sheet and (II) Awarding Costs and Attorney s Fees, filed September 21, 2017 [Dkt. No. 4865] (the Objection to Reorganized Exide Motion ). 6

7 Case KJC Doc 4868 Filed 09/25/17 Page 7 of 14 from pursuing a cause of action against the debtor in name only for the sole purpose of recovering from the debtor s liability insurer. Winebrenner v. Morris (In re Morris), 570 B.R. 708, 710 (Bankr. M.D. Pa. 2017). The court held that the plaintiff was permitted to proceed with the personal injury claim against the debtor, provided that any recovery in that action would be limited to applicable insurance coverage. See id. at 718. In so holding, the court considered that the debtor-defendant may experience some inconvenience if the Personal Injury Action is allowed to proceed, but found that barring the suit would effectively leave the injured Plaintiff/Claimant with no legal mechanism to seek recovery for her injuries. See id. at In Hawxhurst v. Pettibone Corp., a product liability claimant who failed to timely file a proof of claim in the debtor s Chapter 11 case moved to, among other things, modify the debtor s bankruptcy discharge injunction to permit a suit to recover insurance proceeds. Hawxhurst v. Pettibone Corp., 40 F.3d 175, (7th Cir. 1994). The court found that the claimant s requested modification of the discharge injunction was appropriate, reasoning that the claimant s nominal suit, if successful, will not create a personal liability of the debtor and therefore will neither deplete the debtor s assets or otherwise interfere with the administration of the bankruptcy proceeding, nor hinder the debtor s fresh start at the close of the proceeding. Id. at 181 (citing In re Fernstrom Storage & Van Co., 938 F.2d 731, 734 (7th Cir. 1991)); see also Green v. Welsh, 956 F.2d 30, 35 (2d Cir. 1992) (holding that a plaintiff was permitted to proceed against a discharged debtor solely to recover from the debtor s insurer ). 13. In Esposito v. Bellotti, the court considered the defendant s motion to dismiss the plaintiff s complaint on the grounds that the plaintiff had failed to intervene in the defendant s bankruptcy proceeding prior to the bankruptcy court s discharge of the defendant s debts. Esposito v. Bellotti, No. 3:11cv974, 2013 WL , at *2 (M.D. Pa. Aug. 7, 2013). The 7

8 Case KJC Doc 4868 Filed 09/25/17 Page 8 of 14 court denied defendant s motion to dismiss, concluding that the plaintiff can continue this action against the defendant to establish liability and recover from defendant s insurer. Id. In so holding, the court explained that courts have consistently held that a bankruptcy discharge does not affect the liability of liability insurers and does not prevent establishing their liability by proceeding against a discharged debtor. Id. at *3. Accordingly, the court held that the plaintiff could proceed against the discharged debtor to establish a basis for recovery from the debtor s insurer. See id. at *4 (citing Green v. Welch, 956 F.2d 30 (2d Cir. 1992)). 14. Similarly, citing to the opinions in Hawxhurst and Hendrix, the Bankruptcy Court in SelectBuild observed that courts have determined that a bankruptcy discharge does not preclude a suit brought nominally against the debtor in order to seek relief against the insurer. See In re SelectBuild Illinois, LLC, Case No (KJC), 2015 WL , at *8 (Bankr. D. Del. May 28, 2015) (Carey, J.) (denying reorganized debtor s motion to enforce plan injunction). 15. The Tort Trustee initiated the Parallel California Proceeding in the California State Court to enforce the Tort Trust s contractual rights under applicable state law and enable the Tort Trustee to pursue the Recovery Litigation as against applicable insurance. See Motion to Abstain, Ex. 7 (July 27, 2017 Hr g Tr. at 29:21-31:12); Motion to Abstain, Ex. 2 (Parallel California Proceeding Complaint). The Tort Trustee is not and will not be seeking to recover against Reorganized Exide s personal assets in respect of the Parallel California Proceeding or the Recovery Litigation, and, therefore, the discharge provisions of the Plan and Confirmation Order are not implicated by the Parallel California Proceeding or the Reorganized Exide Motion (through which Reorganized Exide seeks to enjoin the Parallel California Proceeding). 8

9 Case KJC Doc 4868 Filed 09/25/17 Page 9 of Reorganized Exide s contention that the Bankruptcy Court must adjudicate the Reorganized Exide Motion because federal bankruptcy law is at play is without merit. The Parallel California Proceeding does not run afoul of the discharge provisions of the Plan, Confirmation Order, or Bankruptcy Code and, accordingly, does not raise any issues of federal bankruptcy law that would militate against this Court s abstention from hearing the Reorganized Exide Motion. II. The Bankruptcy Court Explicitly Did Not Retain Exclusive Jurisdiction Under The Plan And Confirmation Order. 17. Nearly 2.5 years after emerging from bankruptcy, Reorganized Exide requests that the Bankruptcy Court adjudicate the relief requested in the Reorganized Exide Motion. Reorganized Exide contends that this is appropriate because, pursuant to Article XIV of the Plan and the Confirmation Order, the Bankruptcy Court purportedly retained exclusive jurisdiction in respect of the dispute embodied in the Reorganized Exide Motion/Parallel California Proceeding, and that, as a result, the Tort Trustee waived any right to request that the Bankruptcy Court abstain from adjudicating such dispute. Reorganized Exide Obj. 3, 8, 20, Reorganized Exide is mistaken. At the Plan confirmation hearing held on March 27, 2015 (the Confirmation Hearing ), the Bankruptcy Court explicitly declined to approve the retention of exclusive jurisdiction under Article XIV of the Plan. In this regard, the Bankruptcy Court and counsel for then-debtor Exide engaged in the following colloquy: THE COURT: First, Article 14 of the plan, what does that provide? MR. DUNCOMB: It s the retention of jurisdiction. THE COURT: Yeah, I m not going to approve an exclusive jurisdiction provision. I will approve I ll retain jurisdiction. So that part of the plan or confirmation order needs to be revised to make that provision the two paragraphs I ve seen so far, where you provided for jurisdiction, I m okay with those topics. I had a situation come up, not too long ago on a case, that caused me to believe that exclusive jurisdiction provisions in plans 9

10 Case KJC Doc 4868 Filed 09/25/17 Page 10 of 14 and confirmation orders are not appropriate and can lead to mischief that s not anticipated. MR. DUNCOMB: Understood. March 27, 2015 Hr g Tr. at 171:8-21 (emphasis added), relevant excerpt attached hereto as Exhibit Pursuant to the Confirmation Order, the Bankruptcy Court retains non-exclusive jurisdiction in respect of the matters set forth in Article XIV of the Plan to the fullest extent permitted by law. Confirmation Order 67. The Confirmation Order further provides that, to the extent that there is a conflict between the Plan and the Confirmation Order, the Confirmation Order governs in all respects. Confirmation Order 65, Contrary to Reorganized Exide s contention, the Bankruptcy Court affirmatively did not retain exclusive jurisdiction pursuant to Article XIV of the Plan, but rather retained nonexclusive jurisdiction over matters integral to the implementation of the Plan, and even then only to the extent permitted by law. As set forth in the Tort Trustee s Motion to Abstain (and the Tort Trustee s Objection to Reorganized Exide Motion), the Court lacks post-confirmation subject matter jurisdiction to adjudicate the Reorganized Exide Motion and the inclusion of a nonexclusive retention of jurisdiction provision in the Plan and Confirmation Order does not change this outcome. See, e.g., Objection to Reorganized Exide Motion, Section I (citing Binder v. Price Waterhouse & Co., LLC (In re Resorts Int l, Inc.), 372 F.3d 154, 161, (3d Cir. 2004)). 21. Reorganized Exide s request to invoke the Bankruptcy Court s jurisdiction 2.5 years after emerging from bankruptcy raises the specter of perpetual Bankruptcy Court jurisdiction over Reorganized Exide s affairs. In Pettibone Corp. v. Easley, Judge Easterbrook cautioned against such perpetual jurisdiction, observing: 10

11 Case KJC Doc 4868 Filed 09/25/17 Page 11 of 14 Once the bankruptcy court confirms a plan of reorganization, the debtor may go about its business without further supervision or approval. The firm also is without the protection of the bankruptcy court. It may not come running to the bankruptcy judge every time something unpleasant happens. Formerly a ward of the court, the debtor is emancipated by the plan of reorganization. A firm that has emerged from bankruptcy is just like any other defendant in a tort case: it must protect its interests in the way provided by the applicable nonbankruptcy law F.2d 120, 122 (7th Cir. 1991) (citations omitted). 22. Reorganized Exide also cites to the jurisdictional provision of the Trust Agreement as purportedly precluding the Tort Trustee from arguing for abstention and supporting this Court s jurisdiction. But, this argument too fails. First, parties cannot create by contract federal jurisdiction where it otherwise does not lie. See, e.g., First Am. Mktg. Corp. v. United Integrity Grp., Civ. A. No , 2009 WL , at *3 (E.D. Pa. July 22, 2009) (quoting Mitchell v. Maurer, 293 U.S. 237 (1934)) (finding that agreement did not confer federal jurisdiction because a lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties ); see also Affine Commc ns LLC v. Eztel Commc ns LLC, No. IP C-BS, 2002 WL (S.D. Ind. June 28, 2002) ( [U]nder settled legal principles, parties cannot create exclusive federal jurisdiction in a particular venue simply by fashioning a forum selection clause to that effect; the elements supporting federal jurisdiction must be satisfied as a matter of law. ). Second, the Tort Trustee s principal post-bankruptcy causes of action against Reorganized Exide are in respect of Reorganized Exide s post-bankruptcy breach of the Plan and Term Sheet, neither of which (pursuant to the Confirmation Order) provide for the Bankruptcy Court s exclusive jurisdiction. Finally, the retention of jurisdiction provision under the Trust Agreement was never intended to be wielded as a sword by Reorganized Exide. Indeed, during negotiations over the Trust Agreement, the Tort Trustee was adamant that Reorganized Exide would have no post-bankruptcy role in the administration of the Tort Trust. 11

12 Case KJC Doc 4868 Filed 09/25/17 Page 12 of 14 Accordingly, pursuant to Section of the Trust Agreement, the Tort Trustee and Reorganized Exide agreed that the Tort Trustee has the unilateral right to amend the Trust Agreement when necessary to carry out the purpose of the Tort Trust. Trust Agreement Pursuant thereto, the Tort Trustee has the unilateral right to amend the Trust Agreement to provide that the Bankruptcy Court retains non-exclusive jurisdiction over the Tort Trust The cases cited by Reorganized Exide in respect of their position that Article XIV constitutes a waiver of the Tort Trustee s right to seek abstention are not persuasive. See Reorganized Exide Obj. 22 (citing Street v. End of the Rd. Trust, 386 B.R. 539, 547 (D. Del. 2008); Fruit of the Loom, Inc. v. Magnetek, Inc. (In re Fruit of the Loom, Inc.), 407 B.R. 593, 598 (Bankr. D. Del. 2009)). As the reasoning in Street demonstrates, a retention of jurisdiction provision cannot operate as a waiver to seeking abstention from a dispute over which the court does not have subject matter jurisdiction. Cf. Street, 386 B.R. at 547. In Street, the court s conclusion that a forum selection clause operated as a waiver to seeking abstention follow[ed], and indeed depended upon, its determination that related to jurisdiction exist[ed] over the dispute. See id. ( Following the determination that related to jurisdiction exists here, which abstention does not affect, the Court concludes that the valid forum selection clauses... constitute a waiver of any right to mandatory abstention under section 1334(c)(2). (emphasis added)). Indeed, the Street court qualified that forum selection clauses are only enforceable in bankruptcy courts assuming jurisdiction otherwise lies. See id. Here, because the Bankruptcy 5 There are only two conditions on the Tort Trustee s unilateral right to amend the Trust Agreement: first, any amendment must be consistent with the Plan, Term Sheet, and Confirmation Order; second, to the extent that any amendment affects the rights of Tort Trust beneficiaries, such amendment must be approved by the Bankruptcy Court. Trust Agreement

13 Case KJC Doc 4868 Filed 09/25/17 Page 13 of 14 Court does not have subject matter jurisdiction over the Reorganized Exide Motion in the first instance, Article XIV cannot constitute a waiver to the Tort Trustee seeking abstention. Cf. id For the reasons set forth above, Reorganized Exide s citation to Fruit of the Loom in respect of retention of jurisdiction is inapposite. The Tort Trustee further notes that the court in Fruit of the Loom held that, regardless of whether an agreement provides for a retention of jurisdiction provision, the court may tak[e] up permissive abstention sua sponte pursuant to 28 U.S.C. 1334(c). Fruit of the Loom, 407 B.R. at 598. [Remainder of page intentionally left blank.] 6 This conclusion is supported by the related authority on bankruptcy jurisdiction which holds that retention of jurisdiction provisions in a plan or confirmation order cannot confer jurisdiction upon a bankruptcy court unless jurisdiction otherwise exists pursuant to 28 U.S.C or 28 U.S.C See Resorts Int l, 372 F.3d at 161; Shandler v. DLJ Merch. Banking, Inc. (In re Insilco Techs., Inc.), 330 B.R. 512, 519 (Bankr. D. Del. 2005) aff d 394 B.R. 747 (D. Del. 2008). 13

14 Case KJC Doc 4868 Filed 09/25/17 Page 14 of 14 CONCLUSION WHEREFORE, the Tort Trustee respectfully requests that the Court: (i) grant the relief requested in the Motion to Abstain and abstain from adjudicating the relief requested in the Reorganized Exide Motion; and (ii) grant such other and further relief to the Tort Trustee as the Court deems just and proper. Dated: September 25, 2017 Wilmington, Delaware THE ROSNER LAW GROUP LLC /s/ Frederick B. Rosner Frederick B. Rosner (DE #3995) Scott J. Leonhardt (DE #4885) 824 North Market Street, Suite 810 Wilmington, Delaware Telephone: (302) and- BROWN RUDNICK LLP William R. Baldiga Andrew M. Carty Jessica N. Meyers Seven Times Square New York, New York Telephone: (212) Facsimile: (212) v1 Counsel to Craig R. Jalbert, solely in his capacity as Trustee of the Vernon Tort Claims Trust 14

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