FILED JUN 17 2025 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP Nos. CC-24-1161-SGF BEN NYE CO., INC., CC-24-1162-SGF Debtor. Bk. No. 2:24-bk-11857-DS THE GORI LAW FIRM on behalf of Humberto Machado and Humberto Machado, Jr., 2023-LA-1307 in the Third MEMORANDUM* Judicial District (Illinois); Jami Sager and Douglas Sager, 2422-CC00137, Missouri; and Russell Kolber, 21 L 1564 in the Third Judicial District (Illinois); MAUNE RAICHLE HARTLEY FRENCH & MUDD, LLC on behalf of Claudia Smith, 22 STCV 18719 in the Los Angeles Superior Court; and Robbin Watts as Personal Representative for Joseph Sniegocki, 23-010939, Broward County, Florida; SIMON GREENSTONE PANATIER, PC on behalf of Gary Schmidt and James Schmidt, 62 CV 22 4900 in the Ramsey County, Minnesota District Court; WATERS KRAUS PAUL & SIEGEL on behalf of Stacy Belanger and Peter Belanger, 22 STCV 08775 in the Los Angeles Superior Court; WEITZ &

* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. LUXENBERG P.C. on behalf of Michele Rusinko and Robert Weisenfeld, MID-L- 6742-23 AS, Middlesex County, New Jersey, Appellants, v. BEN NYE CO., INC.; GREGORY KENT JONES, Sub-Chapter-V Trustee, Appellees.

Appeal from the United States Bankruptcy Court for the Central District of California Deborah J. Saltzman, Bankruptcy Judge, Presiding

Before: SPRAKER, GAN, and FARIS, Bankruptcy Judges.

INTRODUCTION

Appellants are a group of five asbestos personal injury law firms and

eight asbestos personal injury plaintiffs (collectively, “Appellants”) with

lawsuits pending against subchapter V 1 debtor Ben Nye Co., Inc.

(“Debtor”), a small, family-owned business subject to mounting asbestos

claims. Appellants have alleged that some of Debtor’s products contain talc

contaminated by asbestos, and the plaintiffs’ exposure to these products

resulted in them contracting asbestos-related illnesses. Debtor denies its

products contain asbestos, but its litigation costs continued to increase. It

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure.

2 filed bankruptcy to address all asbestos claims.

Appellants challenge the bankruptcy court’s order setting a bar date

and its order confirming Debtor’s plan of reorganization. As to the bar date

order, Appellants contend that the order impermissibly required all

asbestos litigants—current and future—to file a proof of claim regardless of

whether the litigants then held “claims” against Debtor within the meaning

of the Bankruptcy Code. We agree that the bar date order improperly

included a discharge-like injunction. Appellants’ remaining arguments

attacking the bar date order—which focus on who holds claims—are

premature.

Appellants’ arguments challenging plan confirmation as denying due

process and barring future claimants are unavailing. The confirmation

order did not determine who holds claims. Nor did Debtor’s plan purport

to make this determination. The discharge injunction in the plan applies

only to those who held claims or causes of action as of the plan’s effective

date. But the plan did not attempt to identify who holds these claims. This

question remains to be adjudicated through the claims allowance process

or through enforcement of the discharge injunction. Therefore, we do not

address Appellants’ plan confirmation arguments for the same reason we

decline to address most of Appellants’ arguments concerning the bar date

order: they are premature.

The inclusion of an injunction within the bar date order was error.

The attempt to establish who held claims against Debtor as part of the bar

3 date order was similarly erroneous. Given the limited nature of the error,

we ORDER CORRECTED the bar date order to delete the injunction

contained in Paragraph 9 and to revise Paragraph 8 consistent with this

decision to clarify that the bar date order did not decide whether all future

asbestos claimants were subject to the bar order and the discharge

injunction. As corrected, the bar date order is AFFIRMED. Also, the

confirmation order is AFFIRMED.

FACTS2

Appellants have not challenged on appeal any of the bankruptcy

court’s findings of fact. Indeed, Appellants did little or nothing during the

plan confirmation process to counter Debtor’s evidence. Accordingly, our

recitation of facts draws heavily from the bankruptcy court’s findings and

the declarations Debtor submitted in support of its plan.

Debtor manufactures and sells makeup primarily for theatrical and

costume purposes. It has been family owned and operated since its

founding in 1966. At the time of its bankruptcy filing, ownership of the

company was held by Dana and Gina Nye as trustees for a family trust.

Dana serves as Debtor’s president and chief executive officer, and Gina has

served as its chief financial officer.

2 We exercise our discretion, when appropriate, to take judicial notice of documents electronically filed in the underlying bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

, 233 n.9 (9th Cir. BAP 2003). 4 A. Prepetition asbestos lawsuits.

In December 2004, Debtor was named for the first time as a

defendant in a personal injury lawsuit allegedly arising from the use of its

products. The plaintiff alleged that she had suffered injury after using

Debtor’s face powder, which allegedly contained asbestos. In response,

Debtor conducted “intensive research” but found no evidence of asbestos

in its products. Debtor did not have insurance for this type of claim and

spent about $50,000 in defense costs on this first personal injury action. The

case was dismissed in 2005 without settlement.

Seventeen years later, and while still weathering the economic impact

of the COVID-19 pandemic, Debtor was sued a second time. Again, the

plaintiff alleged exposure to asbestos from Debtor’s face powder. In this

second lawsuit, Debtor was among 60 defendants and vigorously defended

its position, spending nearly $500,000 in legal fees. It also paid $37,500 to

settle this case.

Between July 2021 and March 2024, Debtor was named as a

defendant in eight more asbestos lawsuits. In these lawsuits, Debtor was

named with multiple other defendants, including many large and well-

known companies.

Debtor has consistently denied that it has manufactured any products

containing asbestos or causing illness. Nor has anyone ever presented any

evidence to the contrary. But asbestos lawsuits are expensive to defend,

and the Debtor had no insurance to fund its defense. Debtor’s legal

5 expenses steadily rose—from $62,513 in 2021, to $301,945 in 2022, and then

to $407,289 in 2023. Debtor could not continue to sustain legal expenses in

these amounts. When combined with decreases in revenue that Debtor

simultaneously experienced, it sustained a net loss of $453,102 for the year

ending December 31, 2023. In turn, these circumstances “substantially

depleted” Debtor’s cash position.

B. Debtor’s bankruptcy and the Bar Date Motion.

Debtor filed its subchapter V bankruptcy in March 2024, after

realizing that continuing to defend the ongoing asbestos lawsuits would

result in overwhelming legal expenses. Debtor was concerned that the

continuing litigation would require it to permanently shutter its business,

liquidate its assets, and terminate its employees. Nor would Debtor be able

to repay its creditors, regardless of the merits of their claims, if forced to

close and liquidate.

Within several days of filing bankruptcy, Debtor moved to set special

notice procedures and a special bar date for filing “known and unknown”

asbestos personal injury claims (“Bar Date Motion”). Debtor asked the

bankruptcy court to set a bar date for filing all asbestos proofs of claim

regardless of whether the parties exposed to Ben Nye products had

manifested any asbestos-related illnesses. The principal purpose of the Bar

Date Motion was to fix the time for filing proofs of claim in the bankruptcy

as contemplated in Rule 3003(c)(2) and (3).

As Debtor noted, absent leave to file a belated claim, a failure to

6 timely file a claim pursuant to Rule 3003(c)(2) and (3) typically means that

such creditor “will not be treated as a creditor for that claim for voting and

distribution.” Rule 3003(c)(2). However, Debtor’s request for relief went

significantly further. In the Bar Date Motion, Debtor requested broad

injunctive relief against any “Asserted Asbestos Claim.” The Bar Date

Motion broadly defined this term as covering all “asserted asbestos related

injury claims,” regardless of whether the claimant had manifested any

illness from being exposed prepetition to Debtor’s products. As Debtor

explained, “the claims of future claimants must be addressed as asbestos

related injuries arise many years after exposure to the asbestos containing

product.” Though it acknowledged that § 524(g) typically provides the

means to bind future asbestos litigants by means of a channeling

injunction, Debtor conceded that it lacked the insurance or assets necessary

to utilize that statute.3 Nonetheless, it maintained that it could bind future

3 Fireman's Fund Insurance Co. v. Plant Insulation Co. (In re Plant Insulation Co.),

(9th Cir. 2013), generally described the nature and function of plans proposed pursuant to § 524(g):

Under § 524(g), a court-appointed fiduciary stands in for the future asbestos claimants, and the court ensures that any proposed plan is fair to them. This is necessary because, under a § 524(g) plan, the bankruptcy court enters a series of “channeling injunctions” that can put an end to all present and future asbestos litigation by preventing any entity from taking legal action to collect a claim or demand that is to be paid in whole or in part by a trust created through a qualifying plan of reorganization. In the typical § 524(g) plan, . . . [t]he trust is established by the plan and is generally funded by insurance proceeds and securities in the reorganized debtor. In theory, by funding the trust with securities of the reorganized 7 asbestos litigants through a “robust claims bar date notice process that

includes publication notice.” To do so, the Bar Date Motion sought an

order stating that:

any holder of a [sic] an Asserted Asbestos Claim against the Debtor that is required to file a proof of claim in accordance with an entered order of the Court granting this Motion, but fails to do so on or before the Asserted Asbestos Claim Bar Date, shall (a) be forever barred, estopped, and enjoined from asserting such a claim against the Debtor, their property, or their estates (or submitting a proof of claim with respect thereto) and (b) not be treated as a creditor with respect to such claim for the purposes of voting and distribution with respect to any chapter 11 plan of reorganization that may be filed in this bankruptcy case.

Bar Date Motion at 10:17-21 (emphasis added).

Debtor’s proposed bar date notice mirrored the breadth of injunctive

relief sought in the Bar Date Motion. As set forth in the bar date notice:

If you do not submit a claim by the Asbestos Claim Bar Date and later manifest asbestos-related disease, you will not be eligible for compensation from the Company. Even if you have not been diagnosed with disease or experiences [sic] symptoms, you must make a claim to preserve your right to compensation if you develop an asbestos-related illness in the future.

(Emphases added.) The bar date notice emphasized that: “Failure to file a

claim by the Asbestos Claim Bar Date will result in any existing or future

debtor, the trust has an “evergreen” source of value for future asbestos claimants. There are a number of special requirements a plan must meet for a debtor to obtain § 524(g) injunctive relief.

Id. (cleaned up). 8 claim against the Company arising from asbestos exposure being barred.”

(Emphasis added.) The bar date notice defined “the Company” as Ben Nye,

Co. Inc. By declaring non-filing asbestos litigants ineligible to pursue

compensation from “the Company,” as opposed to “the bankruptcy

estate,” the bar date notice confirmed that Debtor was seeking not merely

to bar all asbestos litigants who failed to timely file claims from

participating in the bankruptcy but also to preclude them from attempting

to collect from Debtor at any time or in any manner in the future.

Appellants opposed the Bar Date Motion but did not directly

challenge the broad injunctive relief sought. Instead, they pointed out that

Debtor sought to apply the bar date to anyone previously exposed to

Debtor’s products, including those who had not yet manifested any illness.

Appellants argued this was unfair and legally improper for two reasons.

First, they contended that these future or latent asbestos personal injury

litigants did not hold “claims” within the meaning of the Bankruptcy Code

under the Ninth Circuit’s fair contemplation test adopted by California

Department of Health Services v. Jensen (In re Jensen),

(9th Cir.

1993). Absent a claim, they argued, those persons whose claims were not

within their fair contemplation at the time of the bankruptcy filing were

not subject to the bankruptcy claims process or any bar date. Appellants

maintained that the only way Debtor properly could “bind” or “discharge”

the future asbestos litigants was by complying with the statutory

provisions of § 524(g).

9 Second, Appellants claimed that broadly imposing the notice

procedures and a claims bar date violated the constitutional due process

rights of future asbestos litigants. Appellants contended that it was

unreasonable to expect future litigants to “make an informed decision”

about whether they had a claim against Debtor for an asbestos personal

injury that had not yet manifested. Appellants pointed out that asbestos

personal injuries typically took decades to manifest themselves. According

to Appellants: “[n]o amount of notice today can bind claims that will arise

in the future. . . . Because the Debtor’s bar date scheme has no hope of

fulfilling its stated goals of discharging future claims, it will serve no

legitimate reorganizational purpose.”

In its reply, Debtor asserted that Appellants lacked standing to

represent the interests of future litigants and should not be permitted to

object to the Bar Date Motion on their behalf. Debtor further noted that,

absent a successful reorganization, there was no way for it to survive while

continuing to incur the legal defense costs associated with Appellants’

ongoing personal injury actions. Debtor also pointed out that § 524(g) was

not a practicable option given the Debtor’s size and finances. Moreover, the

relatively small number of prior asbestos personal injury actions limited its

ability to forecast its future exposure for such claims. Debtor insisted that

its proposed bar date notice would enable all future asbestos litigants to

10 “reasonably contemplate the existence” of their asbestos injury claims.4

Finally, Debtor detailed and corroborated with exhibits the third-party

testing it had procured reflecting that it had found no asbestos in its

products containing talc.

At the hearing on the Bar Date Motion, the bankruptcy court declined

to dispose of Appellants’ objections to the Bar Date Motion on third-party

standing grounds and instead substantively overruled them. The court

found that there was “no possibility” of Debtor creating a practicable

§ 524(g) trust as part of a reorganization plan.5 The court also noted that the

instant case was not particularly analogous to the bankruptcies of huge

companies with extensive mass tort liability exposure. Among other things,

it emphasized Debtor’s small size and the absence of a single finding of any

4 Citing Umpqua Bank v. Burke (In re Burke),

, at *2 (9th Cir. BAP Nov. 25, 2019), Debtor acknowledged that courts in the Ninth Circuit generally apply the fair contemplation test to determine when a creditor’s claim arises. But Debtor pointed out that more liberal tests have been applied in other circuits—particularly in mass tort cases and asbestos injury cases. See, e.g., Jeld–Wen, Inc. v. Van Brunt (In re Grossman's Inc.),

, 125 (3d Cir. 2010) (en banc); Epstein v. Off. Comm. of Unsecured Creditors of Est. of Piper Aircraft Corp.,

(11th Cir. 1995); In re Johns-Manville Corp.,

(Bankr. S.D.N.Y. 2016), aff’d,

(S.D.N.Y. 2020), aff’d,

(2d Cir. Sept. 28, 2022). Debtor observed that the Ninth Circuit has not been presented with asbestos injury claims for consideration and posited that the Ninth Circuit would depart from the fair contemplation test under such circumstances—in favor of the more liberal tests utilized in other circuits. However, according to Debtor, even if the Ninth Circuit were to adhere to the fair contemplation test for assessing the timing and existence of asbestos injury claims, its proposed bar date notice procedures would adequately inform the future asbestos litigants of the existence of their claims. 5 Appellants have not challenged this finding on appeal.

11 asbestos in any of Debtor’s products.

The bankruptcy court did not decide whether the fair contemplation

test applied or whether future asbestos litigants with latent injuries held

claims within the meaning of the Bankruptcy Code. Nor did the

bankruptcy court specifically comment on Debtor’s request to broadly bar

both existing and future asbestos litigants who did not timely file proofs of

claim from ever pursuing Debtor for compensation outside of bankruptcy.

From the hearing transcript, it appears the issue never was addressed by

the court other than to note that adequate notice appeared to have been

given.

On April 17, 2024, the bankruptcy court entered its order granting the

Bar Date Motion, subject to some adjustments to Debtor’s proposed

noticing procedures. The order set a bar date of June 3, 2024 for the filing of

“Asserted Asbestos Claims.” It also specified that the bar date applied “to

any person or entity that asserts an Asserted Asbestos Claim against

Debtor based upon the alleged exposure to Debtor’s products prior to the

Petition Date.” The order also specified that, subject to claimants’ rights

under Rule 3003(c)(3), any claimant holding an Asserted Asbestos Claim

who failed to file a claim on or before the June 3, 2024 bar date would “be

forever barred, estopped, and enjoined from asserting such a claim against

Debtor, its property, or its estate.”6

6 Rule 3003(c)(3) provides that if the time to file a proof of claim has expired, a proof of claim still may be filed under the circumstances set forth in Rule 3002(c)(2), (3), 12 Creditors filed 286 proofs of claim by the bar date. Another six

Asserted Asbestos Claims were filed after the bar date. The filed claims

totaled $1,614,505,867.76. As the bankruptcy court observed:

The filing of many of the claims appears to have been orchestrated. Claims were filed throughout the night on the days prior to the bar date. Over 150 claimants asserted that their claim amounts are the exact same $10 million number. It appears that nearly all (if not all) holders of Asserted Asbestos Claims filed proofs of claim that consist solely of the form proof of claim with no supporting attachments or evidence.

Separate bar dates were set for governmental and general claims.

Other than Asserted Asbestos Claims, a total of six priority and general

unsecured claims were filed in the aggregate amount of $6,582.04.

C. Plan proceedings and the confirmation order.

Debtor filed its proposed subchapter V plan in June 2024. As detailed

in the plan, Debtor’s annual earnings varied significantly from year to year

over the ten years preceding its bankruptcy filing. Additionally, during the

five years preceding its bankruptcy filing, it suffered a net loss of $718,304

in 2020, and another net loss of $453,102 in 2023, but it described 2019,

2021, and 2022 as “marginally profitable.”

Debtor’s papers in support of its plan also discussed asset valuations

(4), and (7). In relevant part, paragraph (7) of Rule 3002(c) permits the bankruptcy court to grant an extension of time to a creditor who shows that “notice was insufficient to give the creditor a reasonable time to file.” Likewise, a showing of “excusable neglect” will suffice to permit the court to grant such an extension of time. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,

, 382–83 (1993). 13 and provided an analysis of potentially avoidable transfers and a chapter 7

liquidation analysis. Debtor concluded that general unsecured creditors

would receive nothing if its reorganization efforts failed and it was forced

to liquidate in chapter 7. Debtor also projected $233,504 in net disposable

income over the next three years, which it calculated had a net present

value of $203,165 (“Net Disposable Income”). These analyses, valuations,

and projections were supported by declarations from Gina Nye and several

of Debtor’s professionals.

Debtor’s financial situation also included a secured DIP loan of

$300,000 from Dana Naye, which the bankruptcy court approved to help

Debtor survive the bankruptcy process. The plan additionally provided

that Dana Nye would provide exit financing to Debtor, on substantially the

same terms as the DIP loan, if the cash on hand on the effective date was

insufficient to make all plan payments due at that time.

The plan proposed to pay Class 1 creditors—consisting of all

creditors holding prepetition general unsecured claims—the remainder of

Debtor’s Net Disposable Income after payment of all priority claims. In

August 2024, Debtor modified its plan to provide for a minimum payment

of $50,000 to Class 1 creditors, with any shortfall in cash to be provided by

Dana Nye as part of his exit financing.

The only other class identified in the plan was the class of equity

interest holders, which consisted of Dana and Gina Nye as trustees of the

Nye Family Trust. The equity interest holders were to retain their interests

14 but were prohibited from receiving any distribution on account of their

equity interest during the life of the plan.

The plan included injunction provisions, which in relevant part

barred all creditors “that have held, currently hold or may hold a claim . . .

that was stayed or discharged” from “commencing or continuing, in any

manner or in any place, any action or other proceeding.” The plan did not

purport to identify which claims had been stayed or discharged, though it

did specify that “[t]he injunction described in this paragraph . . . . is

applicable to all creditors and parties in interest with respect to claims or

causes of action arising or existing prior to the Plan Effective Date.”

Appellants objected to the plan. According to them, it was not

proposed in good faith because the plan would only materially benefit

Debtor, its professionals, and its president. Appellants further maintained

that there was little or no benefit to be derived from Debtor’s “nominal

payment” of $50,000 to the 288 asbestos claimants who filed claims against

the estate in an aggregate amount exceeding $1.5 billion.

Appellants additionally argued that: (1) the plan should commit five

years rather than just three years of its projected disposable income to fund

plan payments to creditors; (2) Debtor provided insufficient evidence to

support its financial projections; and (3) it was legally impermissible for the

plan to purport to limit personal injury claimants to the bankruptcy claims

process to redress their personal injuries.

Finally, Appellants appended a single paragraph just before the

15 conclusion of their plan objection contending that Debtor’s plan failed to

satisfy § 1129(a)(11). This statutory provision prohibits confirmation of a

plan when it is “likely to be followed by the liquidation, or the need for

further financial reorganization.” Appellants reasoned that liquidation or

further reorganization was likely to follow confirmation of Debtor’s plan

because the plan failed to provide “any form of money reserve or other

reasonable means of recovery for future claimants,” such as by establishing

a § 524(g) trust. Without offering any facts or legal analysis, Appellants

baldly posited: “this bankruptcy will not in any way affect the rights of

individuals whose injuries manifest themselves post-petition, including,

those individuals who are first exposed to the Debtor’s products post-

petition . . . .”

Debtor filed a reply in response to Appellants’ plan objections. In

relevant part, Debtor stated that it was untrue that the plan did not provide

for future litigants. Debtor argued that any future litigants were provided

for and bound by the Order granting Debtor’s Bar Date Motion and by the

Plan treatment proposed for Class 1 creditors. But Debtor also noted that

its plan did not purport to address any asbestos personal injury claims

allegedly arising from postconfirmation exposure to its products. As for

Appellants’ § 524(g) trust argument, Debtor acknowledged that it was not

invoking its protections. But it observed that a § 524(g) trust was not a

prerequisite to plan confirmation, and it had no way to fund such a trust in

any event.

16 After holding a plan confirmation hearing, the bankruptcy court

confirmed Debtor’s plan on September 19, 2024 and issued separate written

findings of fact and conclusions of law. The order not only confirmed the

plan but also reiterated the plan’s injunction provisions. In its findings of

fact and conclusions of law, the court found that Debtor had established by

a preponderance of the evidence that its plan, as modified, met all the

applicable requirements under §§ 1129 and 1191 for plan confirmation. The

court referenced the six declarations in lieu of direct testimony submitted

by Debtor in support of its plan. It also noted that Appellants did not seek

to cross-examine any of these declarants. Nor did they submit any

testimonial evidence in support of their objection.

The court also compared Appellants’ relatively anemic plan

confirmation objection to their “pervasive opposition” to nearly every step

taken by Debtor in the bankruptcy. It noted how their “response to this

modest small-business reorganization has been so litigious that their

actions threatened to shift all of the funds meant to pay the creditors back

to paying attorneys in connection with the bankruptcy.” Moreover, the

court concluded that Appellants’ true motive was “to derail this

subchapter V chapter 11 Case to [chill] the use of subchapter V of chapter

11 in the future by other similarly situated companies.” In support of this

conclusion, the court cited to Appellants’ “overarching and burdensome

discovery efforts,” their repeated statements that they sought to shutter

Debtor’s business and convert the case to chapter 7, and the fact that there

17 would be no recovery for unsecured creditors—including themselves—in

the event of a chapter 7 liquidation.

Appellants timely appealed both the order granting Debtor’s Bar

Date Motion and the plan confirmation order.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157. We have jurisdiction under

.

ISSUES

1. Did the bankruptcy court commit reversible error in its bar date

order?

2. Did the bankruptcy court commit reversible error when it confirmed

Debtor’s plan?

STANDARD OF REVIEW

Appellants raise only legal issues on appeal, including the proper

interpretation of the Bankruptcy Code. We review such issues de novo.

Irigoyen v. 1600 W. Invs., LLC (In re Irigoyen),

, 6 (9th Cir. BAP

2024). When we review a matter de novo, we give no deference to the

bankruptcy court’s decision. Id.; Kashikar v. Turnstile Cap. Mgmt., LLC (In re

Kashikar),

(9th Cir. BAP 2017).

DISCUSSION

Appellants challenge both the bar date order and confirmation of

Debtor’s subchapter V plan. Appellants contend that both of the

bankruptcy court’s decisions should be reversed because future asbestos

18 litigants have no “claim” under the Ninth Circuit’s fair contemplation test

that could be subjected to either a bar date or a plan. Additionally, they

argue that binding or discharging the claims of future litigants before they

manifest injury violates their due process rights. They contend it is unfair

and unreasonable to expect future litigants to make an “informed decision”

to appear in the bankruptcy court when their only connection to Debtor is

having used some of its products. On the other hand, Debtor has advocated

for adoption of a bright line rule that asbestos claims arise upon exposure

regardless of when any injury might manifest.

With one significant exception, the parties’ arguments are largely

outside the scope of this appeal. The purpose of the claims bar date is to

establish and give notice to creditors of the deadline to file claims – not to

adjudicate who actually holds a claim. True, some other circuits have ruled

as a matter of law that asbestos claims arise for bankruptcy purposes upon

exposure. See, e.g., Jeld–Wen, Inc. v. Van Brunt (In re Grossman's Inc.),

, 125 (3d Cir. 2010) (en banc); In re Johns-Manville Corp.,

(Bankr. S.D.N.Y. 2016), aff’d,

(S.D.N.Y. 2020), aff’d,

(2d Cir. Sept. 28, 2022). The Ninth Circuit has not addressed

this question, and it is immaterial to this disposition. This issue does not

affect our review of either the bar date order or plan confirmation.

We focus our attention on the scope and breadth of the bar date

order, which set the deadline for all asbestos litigants to file proofs of claim

to participate in the bankruptcy. To that extent, it is unremarkable and

19 unchallenged. However, the bar date order went further. It enjoined every

asbestos litigant from pursuing Debtor anywhere or at any time to the

extent the litigant failed to timely file a proof of claim. The bar date order

thus effectively discharged all asbestos liability arising from prepetition use

of Debtor’s products—except that asbestos litigants who filed proofs of

claim could recover to the extent provided by a confirmed plan. By doing

so, it goes far beyond setting the applicable deadline for filing proofs of

claim and restricting receipt of a bankruptcy distribution to asbestos

litigants who filed proofs of claim. This was error.

A. The bar date order impermissibly attempted to discharge all asbestos claims.

Section 502(b)(9) generally contemplates the disallowance of proofs

of claim not timely filed. However, in chapter 9 and 11 cases, there is no

fixed time period for filing proofs of claims. See Levin v. Maya Constr. (In re

Maya Constr. Co.),

(9th Cir. 1996). Instead, the

bankruptcy court must set a deadline as is appropriate under the

circumstances of each case. Indeed, Rule 3003(c)(3) specifically requires

bankruptcy courts to set such bar dates.

The purpose of the bar date “is

to enable the debtor and his creditors to know, reasonably promptly, what

parties are making claims and in what general amounts.” In re Stavriotis,

(7th Cir. 1992) (cleaned up) (quoting United States v.

Kolstad (In re Kolstad),

, 173–74 (5th Cir. 1991)); accord Grynberg

v. United States (In re Grynberg),

(10th Cir. 1993); see also

20 AARP v. First All. Mortg. Co. (In re First All. Mortg. Co.),

(C.D. Cal. 2001) (“If late-filed claims were not barred, it would never be

possible to determine with finality what [bankruptcy] payments are

required.” (cleaned up)).

With certain exceptions not relevant here, when a creditor in a

chapter 11 case fails to timely file a proof claim and fails to obtain leave to

file a late-filed claim, such creditor will not be permitted to participate

either in voting on the debtor’s plan or in receiving distributions under the

plan. In re Grynberg,

& n.4 (citing Rule 3003(c)(2)); Varela v.

Dynamic Brokers, Inc. (In re Dynamic Brokers, Inc.),

, 494–95 & n.5

(9th Cir. BAP 2003) (same); see also Warner Angle Hallam Jackson & Formanek,

P.L.C. v. Lock (In re LMM Sports Mgmt., LLC),

, at *5 (9th

Cir. BAP June 1, 2016) (explaining that Rule 3003(c)(2) “compliments [sic]

and effectuates § 502(b)(9) and § 1111(a), which when read together

provide that creditors in chapter 11 cases whose claims are scheduled as

disputed, contingent or unliquidated must timely file a proof of claim or

else their claims are subject to disallowance”). Accordingly, it is of little or

no moment, here, that the bar date order provided that “[a]ny person or

entity that is required, but fails, to file a proof of claim against the Debtor

for an Asserted Asbestos Claim will . . . not be treated as a creditor with

respect to such claim in this case, including for the purposes of voting and

distribution . . . .” This provision merely reiterated the specific

consequences for non-filing creditors enumerated in Rule 3003(c)(2).

21 Of greater concern is the bar date order’s grant of injunctive relief

against anyone with “an Asserted Asbestos Claim.” We are not aware of

any authority that permitted the bankruptcy court to grant an injunction

within an order establishing a claims bar date as part of a contested matter.

See Rule 7001(g).7 Indeed, we typically treat as error the use of a contested

matter to obtain relief when Rule 7001 requires an adversary proceeding.

See, e.g., Lakhany v. Khan (In re Lakhany),

(9th Cir. BAP

2015) (citing Ruvacalba v. Munoz (In re Munoz),

(9th Cir.

BAP 2002)); GMAC Mortg. Corp. v. Salisbury (In re Loloee),

(9th Cir. BAP 1999). If the bankruptcy court had required Debtor to

commence an adversary proceeding, it is unclear how Debtor practicably

could have complied with the applicable pleading and service

requirements necessary to render effective the injunctive relief it sought

against all current and future asbestos litigants. See generally Zepeda v. INS,

(9th Cir. 1983) (explaining that absent class certification,

federal courts only may grant injunctive relief against parties properly

before the court).

Equally troubling, the court’s order mandated that anyone who used

Debtor’s products prepetition needed to file a proof of claim or be forever

barred from recovering for asbestos injuries in any manner. In doing so, the

7 Rule 7001(g) provides that an adversary proceeding is required “to obtain an injunction or other equitable relief—except when the relief is provided in a Chapter 9, 11, 12, or 13 plan.” 22 bar date order circumvented the plan process. Sections 1141(d) and 1192

define the scope of a chapter 11 debtor’s discharge and when it arises. Any

discharge of debt depends, however, on confirmation of a plan under these

statutory sections. We are not aware of any authority that permits a chapter

11 debtor to obtain a discharge short of plan confirmation. Nor has Debtor

cited any.

It has long been established that the pre-plan rights and powers of

chapter 11 debtors-in-possession should not be used to circumvent the plan

process. See Rosenberg Real Estate Equity Fund III v. Air Beds, Inc. (In re Air

Beds, Inc.),

(9th Cir. BAP 1988) (“When a sale of all or

substantial assets of the estate is proposed in a Chapter 11 case under the

aegis of § 363(b)(1), there is the potential for circumventing the

requirements attendant to the confirmation of a Chapter 11 plan.” (citing

Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.),

,

1066 (2d Cir. 1983))). This restriction on the powers of debtors-in-

possession necessarily applied to Debtor’s request to the bankruptcy court

to fix a claims bar date.

Bar date orders cannot and should not affect the rights of creditors (if

any) outside of bankruptcy; they only preclude non-filing creditors from

participating in the bankruptcy—and only to the extent of voting and

distribution. See In re Grynberg,

, cited with approval in Dolven

v. Bartleson (In re Bartleson),

(9th Cir. BAP 2000). In Grynberg,

the United States held a nondischargeable tax claim.

. The

23 Grynbergs argued that the United States’ failure to file a proof of claim

resulted in the disallowance of the claim as well as its discharge under their

plan. But the subject plan contained no language purporting to discharge

this debt.

. The bankruptcy court rejected the debtors’ argument,

and the Ninth Circuit Court of Appeals affirmed. As the Grynberg court

explained:

failure to file a proof of claim before the bar date simply precludes a creditor from participating in the voting or distribution from the debtor’s estate. Neither the rules nor the bar order prevents a creditor holding a nondischargeable debt who has not filed a proof of claim from collecting outside of bankruptcy.

. 8

Unless and until Debtor confirmed its plan, all non-filing creditors

effectively held nondischargeable claims because the discharge provided in

§ 1141(d) and 1192 had not yet arisen. The Bankruptcy Code permits no

8 Section 1141(d)(1)(A) discharges “any debt that arose before the date of confirmation ….” Section 101(12) defines a debt as a “liability on a “claim.” Here, the claims bar date order prematurely assumed who had claims and who did not. A debtor generally may not discharge future or nonexistent “claims.” In re Johns–Manville Corp.,

(“[E]stablishing the existence of a claim ‘is only the first step in determining whether [Ms. Berry’s] claims were discharged.’” (quoting Placid Oil Co. v. Williams (In re Placid Oil Co.),

(Bankr. N.D. Tex. 2012) aff’d,

(5th Cir. 2014))). A limited exception applies in asbestos cases where the debtor complies with § 524(g). This subsection enables a debtor to address future demands arising from asbestos injuries if a number of requirements are satisfied, including the appointment of a future asbestos claims representative, the establishment of a trust to pay future asbestos claims, and the entry of a channeling injunction as part of a confirmed plan. For a variety of valid reasons, Debtor did not attempt to comply with the requirements of § 524(g). Accordingly, Debtor only could discharge, through its plan, pre-existing asbestos claims. 24 other type of discharge of debts in chapter 11. Accordingly, the bankruptcy

court erred by issuing what amounted to a discharge injunction as part of

its bar date order.

We hold that an order setting a claims bar date cannot be used as a

proxy for a debtor’s discharge. Enjoining non-filing asbestos litigants from

seeking any future recovery from Debtor is improperly broad; it would

apply equally to those that do not have a “claim” for purposes of

bankruptcy. More importantly, it would improperly impose an injunction

apart from a confirmed chapter 11 plan or the discharge injunction. That

limited provision within the bar date order is unenforceable and must be

stricken. But that is all the relief that is required and justified at this time.

B. We need not determine which asbestos litigants hold “claims” within the meaning of the Bankruptcy Code, or whether the “fair contemplation test” applies to asbestos litigants.

The parties have primarily argued for and against the application of

the fair contemplation test to the bar date order. Appellants argue that the

bankruptcy court erred in entering the injunction because future litigants

cannot hold “claims” under the fair contemplation test. Debtor argues that

the injunction was appropriate because asbestos litigants have a “claim” in

bankruptcy upon exposure.

The Bankruptcy Code broadly defines a claim as the “right to

payment, whether or not such right is reduced to judgment, liquidated,

unliquidated, fixed, contingent, matured, unmatured, disputed,

25 undisputed, legal, equitable, secured, or unsecured.Ӥ 101(a)(5)(A). Courts

have used numerous approaches to examine when a claim exists for

bankruptcy purposes—for asbestos claims as well as other types of claims.

See, e.g., In re Grossman's Inc., 607 F.3d at 121-25; Epstein v. Off. Comm. of

Unsecured Creditors of Est. of Piper Aircraft Corp.,

(11th

Cir. 1995); Lemelle v. Universal Mfg. Corp.,

, 1274–78 (5th Cir.

1994); Cal. Dep't of Health Servs. v. Jensen (In re Jensen),

(9th Cir. 1993); In re Johns-Manville Corp.,

.

Several courts have adopted the rule of law advocated by Debtor.

Addressing when an asbestos claim exists for purposes of bankruptcy, the

Third Circuit surveyed various approaches in In re Grossman's Inc., 607 F.3d

at 121-25. The Third Circuit in Grossman’s Inc. concluded that

“[i]rrespective of the title used, there seems to be something approaching a

consensus among the courts that a prerequisite for recognizing a ‘claim’ is

that the claimant’s exposure to a product giving rise to the ‘claim’ occurred

pre-petition, even though the injury manifested after the reorganization.”

Id. at 125. Similarly, a bankruptcy court in the Second Circuit reviewed the

various approaches applied to determine when an asbestos claim arises in

In re Johns–Manville Corp.,

-37. It observed that “courts have

repeatedly found that prepetition exposure to asbestos giving rise to a post-

petition injury manifesting constitutes a prepetition claim in bankruptcy.”

.

The Ninth Circuit has not specifically addressed when an asbestos

26 claim exists in bankruptcy. More generally, it has adopted and applied the

fair contemplation test to evaluate when claims exist. In In re Jensen,

, the Ninth Circuit considered whether a claim for

environmental cleanup liabilities was discharged by the debtor’s

bankruptcy. The parties vigorously disputed whether the state

government’s CERCLA9 rights constituted a “claim” that had been

discharged even though a cause of action did not mature until after the

bankruptcy. The Ninth Circuit attempted to balance or reconcile competing

concerns by picking a standard or test for ascertaining the outer boundary

of the term “claim.” It canvased and assessed the various existing tests for

determining whether and when a claim arises, including the conduct

approach, the relationship approach, the fair contemplation approach, and

the right to payment approach.

It ultimately selected the fair

contemplation test as striking the appropriate balance between the

competing policy concerns.

at 930-31 In doing so, the Ninth Circuit

raised the concern that the conduct approach failed to account for the

creditor’s potential lack of knowledge that its rights existed.

.

Jensen similarly criticized the “expansive relationship approach” because

unless circumscribed it “takes on the characteristics of and thus suffers

from the same infirmities as the [prepetition conduct] approach.”

(citations omitted).

“CERCLA” refers to the Comprehensive Environmental Response, 9

Compensation, and Liability Act of 1980,

. 27 The Ninth Circuit subsequently has articulated the fair contemplation

test as follows: “a claim arises when a claimant can fairly or reasonably

contemplate the claim’s existence even if a cause of action has not yet

accrued under nonbankruptcy law.” Goudelock v. Sixty-01 Ass'n of

Apartment Owners,

(9th Cir. 2018) (citation omitted). Since

Jensen, the Ninth Circuit has consistently applied the fair contemplation

test to ascertain whether a bankruptcy claim existed in a variety of

situations.

(applying fair contemplation test to assess whether claim

arose prepetition for condominium assessments accrued postpetition); see

also SNTL Corp. v. Ctr. Ins. Co. (In re SNTL Corp.),

(9th Cir.

2009) (applying fair contemplation test to assess whether claim arose

prepetition for attorney’s fees accrued postpetition but arising from a

prepetition contract). There are several other examples of Ninth Circuit

decisions similarly applying the fair contemplation test. See, e.g., Picerne

Constr. Corp. v. Castellino Villas, A.K.F. LLC (In re Castellino Villas, A.K.F.

LLC),

(9th Cir. 2016) (again applying fair

contemplation test to assess whether claim arose prepetition for attorney’s

fees accrued postpetition but arising from prepetition contract); Cool Fuel,

Inc. v. Bd. of Equalization (In re Cool Fuel, Inc.),

(9th Cir.

2000) (applying fair contemplation test to assess whether tax claim arose

prepetition for taxes assessed postpetition but arising from debtor’s

prepetition fuel sales); ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.),

(9th Cir. 2006) (applying fair contemplation test to assess when claims

28 for employment discrimination arose); .

Both parties press for a determination of the applicable law

concerning when asbestos claims arise. But the bankruptcy court did not

make such a determination. There is nothing in its orders or in its oral or

written rulings discussing the fair contemplation test. Moreover, the Ninth

Circuit’s application of the fair contemplation test typically requires a fact-

specific examination of the surrounding circumstances before determining

who holds a claim and who does not. See, e.g., In re ZiLOG, Inc.,

; In re Cool Fuel, Inc.,

; In re Jensen,

. In

contrast, we have no specific claim before us for consideration, or even a

future claims representative present.

It is not surprising that the issue of whether future asbestos litigants

hold asbestos injury claims in this case was not thoroughly or persuasively

analyzed and developed. Unlike the debtors in the asbestos decisions cited

herein, Debtor here vigorously denies that any asbestos exposure occurred.

Additionally, in stark contrast to the future litigants they purport to speak

for, Appellants each indisputably contemplated the existence of their

respective asbestos claims prepetition because each already was involved

in prepetition asbestos litigation against Debtor. This means that

Appellants are poorly situated to assert the rights of future asbestos

litigants as the claims bar date did not harm Appellants. They already

commenced prepetition actions against Debtor, and these asbestos

claimants (as opposed to the law firms representing them) have filed

29 proofs of claim.

Appellants have alleged that they will be harmed by allowing future

asbestos litigants to participate in the distribution to unsecured creditors.

This argument is spurious and misstates the role of the bar date order,

which merely sets the deadline for claims to be filed. Whether those who

file proofs of claim hold a claim that should be allowed is a question for the

claims adjudication process. But the filing of a claim itself does not harm

other creditors. To the extent that proofs of claim have been filed for latent

asbestos injuries that do not qualify as claims, they remain subject to

disallowance through the claim objection process. It is not the role of a

claims bar date order to provide a premature opinion regarding who holds

a “claim” within the meaning of the Code. In short, the claims bar date

could not create a claim, allow a claim, or discharge a claim.

In sum, entry of the bar date order does not require our

determination of whether the rights of future asbestos litigants constitute a

“claim” within the meaning of the Code. In other words, whether

unidentified future asbestos litigants have a claim subject to Debtor’s

bankruptcy is not properly before us.10 Applying the fair contemplation

10 A significant number of future or latent asbestos litigants did file proofs of claim by the claims bar date. Yet, Debtor has candidly detailed why it cannot take advantage of the provisions of § 524(g) and has not provided for a future claims representative or reserved any payment for the so-called “existing claims” held by litigants who have filed proofs of claim but who have not yet manifested any asbestos injuries. These filed proofs of claim include no supporting documentation to establish their claims or support the significant damages uniformly asserted in each such claim. 30 test, as we must given Ninth Circuit precedent, it is unclear and

unknowable on this record whether any future, late-filed asbestos proof of

claims were within the fair contemplation of the filing asbestos litigants in

time to qualify as a “claim” within the meaning of the Code. Nor does this

appeal compel us to examine whether some other test should apply to

future asbestos litigants. The answer to these questions remain for another

day when the issue is properly presented and developed by a proper

claimant.

C. Any questions concerning notice and due process are not properly presented in this appeal.

Appellants’ only other argument on appeal of the bar date order

concerns due process. However, any alleged due process violation does not

constitute reversible error absent prejudice. Rosson v. Fitzgerald (In re

Rosson),

(9th Cir. 2008), partially abrogated on other

grounds as recognized by Nichols v. Marana Stockyard & Livestock Mkt., Inc. (In

re Nichols),

, 962 (9th Cir. 2021). For the same reasons we

concluded that Appellants have not been harmed by the bar date order, we

At oral argument in this appeal, counsel advised that Debtor is objecting to such claims for lack of support. Under Debtor’s arguments, this suggests that future asbestos claimants may have been placed in an untenable Catch 22 situation of having to file proofs of claim – to share in a $50,000 distribution which may be paid on the effective date – without any manifested injuries to permit allowance of their claims. The plan contains no provision for future litigants to recover anything after that distribution despite Debtor’s acknowledgement that asbestos injuries may manifest decades after exposure. Rather, it argues that such future asbestos claimants can assert excusable neglect for their failure to file a proof of claim well after the $50,000 has been disbursed. 31 similarly conclude that there is no prejudice to support Appellants’ due

process argument.

Any determination of whether a claim has been discharged “cannot

be divorced from fundamental principles of due process.” In re Grossman's

Inc., 607 F.3d at 125. Debtors must provide creditors with sufficient notice

of the bankruptcy and claims bar date to satisfy its constitutional due

process obligations. See In re Energy Future Holdings,

(3d. Cir. 2020); Williams v. Placid Oil Co. (In re Placid Oil Co.),

(5th Cir. 2014). This is because due process requires notice

“reasonably calculated” to apprise interested parties of the pendency of the

action and the opportunity to object. Mullane v. Cent. Hanover Bank & Tr.

Co.,

(1950). However, “[t]he Supreme Court has

‘recognized that, in the case of persons missing or unknown, employment

of an indirect and even a probably futile means of notification is all that the

situation permits and creates no constitutional bar to a final decree

foreclosing their rights.’” In re Johns–Manville Corp.,

(quoting

Mullane,

(citations omitted)). “[F]or unknown creditors

whose identities or claims are not reasonably ascertainable, and for

creditors who hold only conceivable, conjectural or speculative claims,

constructive notice of the bar date by publication is sufficient” to satisfy

due process.

(collecting cases).

Here, Debtor published notice of the bar date in the New York Times,

32 the Los Angeles Times, Variety,11 Mealey’s Litigation Report Asbestos, and

Mealey’s Asbestos Bankruptcy Reports. Debtor additionally posted a link

to the bar date notice on its website and its Instagram page. Appellants

argue that Debtor failed to prove that this notice was adequate and

sufficient to future asbestos litigants. Put differently, Appellants argue that

the notice of the bar date violated the due process rights of unknown future

litigants. They make no argument that the notice violated their own rights

and fail to explain why they have standing to make such a broad and

sweeping challenge or how they were harmed. Rather, their argument is

again premised on the belief that all future asbestos litigants who have not

manifested an injury do not have claims within the meaning of § 101(5).

Yet, no future asbestos litigant has raised this argument. Whether Debtor’s

notice of the claims bar date satisfied the due process rights of future

asbestos litigants raises a question for another day, to be raised by someone

who (1) holds such rights, and (2) contends that he or she was not provided

adequate notice despite Debtor’s efforts. See, e.g., In re Placid Oil Co.,

(holding that notice published in bankruptcy commenced

in 1986 was sufficient to preclude employee and spouse from pursuing

state court action commenced in 2008 for asbestos-related injuries); In re

Johns–Manville Corp.,

(holding that notice

11 Variety—an entertainment industry publication—evidently was included in the list of periodicals in which to publish because of the widespread use of Ben Nye products in the entertainment industry. 33 published in bankruptcy commenced in 1982 was sufficient to preclude

action by unknown future litigant brought roughly 30 years later).

Appellants, who each had commenced prepetition existing litigation

against Debtor or are counsel for those litigants, have suffered no injury

and are ill-suited to represent unknown future litigants as to the sufficiency

of the bar date notice. To hold otherwise would violate well-accepted third-

party standing principles. See Pony v. Cnty. of L.A.,

(9th Cir. 2006). However, we more broadly hold as a factual matter that

Appellants’ expressed concerns regarding the bar date notice are

premature. There is no party denying the sufficiency of Debtor’s notice as

applied to them. This issue, as well as the scope of asbestos claims, will

only be ripe for decision if and when someone who has not timely filed a

proof of claim seeks to recover from Debtor. See generally In re Energy Future

Holdings Corp,

(examining ripeness and whether the

appellants’ arguments there were sufficiently “crystallized”—factually

developed—to provide the court with enough information to decide the

matter conclusively).

D. Appellants’ arguments do not support reversal of the confirmation order.

In their appeal from the bankruptcy court’s confirmation order,

Appellants abandon their objections to confirmation raised before the

bankruptcy court. They now make the exact same arguments they made in

their appeal from the bar date order. They again contend that the future

34 litigants—with only latent asbestos injuries—have no “claim” under the

Bankruptcy Code, so there was no claim to discharge via Debtor’s

confirmed plan. They additionally insist that the due process rights of

future litigants were violated by plan confirmation. They maintain that

future litigants had no meaningful opportunity to appear in Debtor’s

bankruptcy case and be heard regarding matters that affected their rights

against Debtor.

Nothing in the confirmation order determined whether future

asbestos litigants hold claims. Nor did the confirmation order determine

whether future asbestos litigants are subject to the plan’s injunction

provisions. Similarly, the plan did not include a channeling injunction to

address future claims. In other words, the bankruptcy court’s decision

contains no ruling addressing the specific rights of, and restrictions on,

future asbestos litigants. Absolutely nothing in the plan’s injunction

provisions, or in its provisions governing the treatment of general

unsecured creditors, identifies future asbestos litigants as being subject to

these provisions. Instead, both the plan and the confirmation order left

these questions for another day—if, or when, they are presented by one or

more future asbestos litigants. Rather, the confirmed plan merely provides

for payment and discharge of “claims”–-whosoever might hold them.

Accordingly, Appellants have failed to demonstrate any error in

confirmation of Debtor’s plan.

Appellants’ confirmation order appeal effectively asks for an

35 advisory opinion regarding the rights of and restrictions on future asbestos

litigants. As we indicated in our discussion of the bar date order, we

decline their invitation to render such an opinion.

CONCLUSION

For the reasons set forth above, we hold that the bar date order

impermissibly enjoined anyone who used Debtor’s products prepetition

from pursuing any future recovery for an asbestos claim apart from its

bankruptcy. This injunctive relief went beyond the permissible scope of a

bar date order. Similarly, it was error to use of the bar date order to define

who holds a “claim” against Debtor for purposes of the bankruptcy.

Accordingly, Paragraphs 8 and 9 of the bar date order are hereby

ORDERED CORRECTED to read:

8. The Asserted Asbestos Claims Bar Date applies to any person or entity that asserts a claim as defined by

(5) against the Debtor based on the alleged exposure to the Debtor’s products prior to the Petition Date. Notwithstanding the foregoing, nothing in this Order will prejudice current and/or future claimants’ rights as set forth in Rule 3003(c)(3) of the Federal Rules of Bankruptcy Procedure. 9. Any person or entity that is required, but fails, to file a proof of claim against the Debtor for an asbestos claim, in accordance with this Order on or before the Asserted Asbestos Claims Bar Date, will not be treated as a creditor with respect to such claim in this case, including for the purposes of voting and distribution with respect to any chapter 11 plan of reorganization that may be filed in this bankruptcy case.

As corrected, the bar date order is AFFIRMED. Also, the confirmation

36 order is AFFIRMED.

37