4.40°7T VV VAT NY LA Tk PON Ae NTE NT ee AYN ANE - Lynda A. Bennett 1251 Avenue of the Americas Lowenstein | Pertner New York, New York 10020 Sandler enrrereice neer eae T. (973) 597-6338 atu ie F. (973) 597-6339 CSDN} E: ibennett@lowenstein com <CUMENT April 4, 2024 CTRONICA..LY FILED 1C Hs met _ Geren) 4 a -Y — VIA ECF if om 48 [ery y YD | SSS oe LG ly ) (pe The Hon. Colleen McMahon. U.S.D.J. pf? ite United States District Court Southern District of New York (= ye y 500 Pearl Street. Room 24A uy A ke (7 New York. New York 10007 Av (US? □□ Me ve □□ YN Re: Certain Underwriters at Lloyd’s, London v. BASF Corporation, \ □ No. 1:24-cv-01684 aie □ □□□ a, PW 1 yh □□□ Dear Judge McMahon: <h /V □□ Q ny □□ Pursuant to Rule V(H) of Your Honor’s Individual Practices and Procedures, Defendarl!/ | BASF Corporation ("BASF”). as successor in interest to Ciba Corporation, respectfully submits □□ J this Letter Motion to address why service of the Complaint filed by Plaintiffs Certain underren □□□ at Lloyd’s. London and Certain London Market Insurance Companies (collectively, the “London MW fi Insurers”) provides additional grounds for the Court to stay this action. 2 i U INTRODUCTION At While the parties were in the midst of briefing their respective motions concerning the □□ proper venue for this insurance recovery action to be heard. on March 26, 2024, the London | □□ \/ Insurers served their Complaint on BASF. (ECF No. 18.) Thus, notwithstanding that BASF □ rf previously moved to stay its time to respond to the Complaint until the Judicial Panel on □ r Multidistrict Litigation (“JPML”) resolves whether this matter should be assigned to the Hon. □□ Richard M. Gergel. U.S.D.J. as part of the pending multidistrict litigation proceeding captioned J re Aqueous Film-Forming Foams Products Liability Litigation. MDL No. 2873 (the “AEFE MDL"), (ECF No. 9), technically, BASF’s time to respond to the Complaint has begun to run. To

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SUNN Ae TON TO NN NI rm INE I IDNR EOD Om The Hon. Colleen McMahon. U.S.D.J. April 4. 2024 Page 2

avoid any doubt that BASF does not have to respond to the merits of the Complaint by the current April 16, 2024 deadline, Fed. R. Civ. P. 81(c)(2)(A), BASF addresses the impact of the London Insurers serving the Complaint. For the reasons BASF previously argued, thiscase should be transferredto the MDL given the overlapping issues between the proceedings. Buteven if the JPML does not follow the Conditional Transfer Order (“CTO”) the Panel Clerk entered finding that transfer is appropriate. BASF will move to dismiss the Complaint under Rule 12(b). or, alternatively. for transfer to the District of South Carolina pursuant to

where the prior insurance recovery action BASF filed on February 27, 2024 against the majority of insurers that are parties to this action is pending before Judge Gergel (the “First Filed Action”). Unlike BASF’s previous motions which go to establishing why the Courthas subject matter jurisdiction over this action and why deference to the JPML on the question of venue is warranted, (ECF Nos. 10. 23). the Court cannot rule on BASF’s potential motion to dismiss or transfer unless: (i) the JPML elects notto transfer this action to the AFFF MDL; and (ii) this Court confirms that it has subject matter jurisdiction. For these additional reasons. and as discussed further below, the Court should stay BASF’s time to respond to the Complaint. LEGAL ARGUMENT A district court’s “power to stay proceedings is incidental to the power inherent in even court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co..

. 255 (1936). In considering whether to enter a stay, courts consider: (1) the private interests of the plaintiff in proceeding expeditiously with the civil litigation as balanced against the prejudice to the Lowenstein Sandler

NAA ee Te ET eee □□□ Oe The Hon. Colleen McMahon, U.S.D.J. April 4. 2024 Page 3

plaintiffs if delayed; (2) the private interests of and burden on the defendants: (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation: and (5) the public interest. Kappel v. Comfort,

(S.D.N.Y. 1996). Staying BASF’s time to respond to the Complaint will promote judicial economy and preserve the parties’ resources because it will allow the parties to delay briefing a motion that BASF likely will never have to file. In this action’s current posture. BASF will not need to move to dismiss the Complaint or for transfer to the District of South Carolina where the First Filed Action is pending if the JPML transfers this action to the AFFF MDL. as the JPML has preliminarily indicated it will do in its CTO. Moreover, even if the JPML were to assign this action to this Court. the Court cannot rule on BASF’s potential motion to dismiss or transfer unul after it determines that it has subject matter jurisdiction. Compare Ritchie Cap. Mgmt., LLC v. Gen. Elec. Cap. Corp..

. 471 (S.D.N.Y. 2015) (“It is common for courts to stay an action pending a transfer decision by the JPML”), with Am. Standard, Inc. v. Oakfabco, Inc..

.715 (S.D.N.Y. 2007) (“When an action ts removed from state court. the district court must initially determine whether it has subject matter jurisdiction overa plaintiffs claim before reaching the merits of a motion to dismiss. for summary judgment. or for other relief). and Levitt v. State of Marvland Deposit Ins. Fund Corp..

. 1490 □□□ (E.D.N.Y. 1986) (“Federal courts must... find the existence of subject-matter jurisdiction before they may entertain a motion to transfer”), Thus. withouta stay, the parties needlessly willhave to prepare theirrespective memoranda addressing BASF’s substantive response to the Complaint prior to the JPML and Judge Gergel. or potentially this Court, ruling on the multiple threshold jurisdictional motions concerning whether

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WweASwU 4.0°T UV □□□ WIV! RYAVeUliimeiit oe YOUN Votive aT 1 Mody TMT The Hon. Colleen McMahon, U.S.D.J. April 4. 2024 Page 4+

this action belongs in the AFFF MDL orsome other forum. Depending on the rulings entered by those tribunals, any substantive response to the Complaint that BASF files in this action may be moot. The Court therefore should conserve party resources by staying BASF’s time to respond to the Complaint until those issues are resolved. Granting a stay will not prejudice the London Insurers because they too will benefit from conserving the time and resources necessary to brief BASF’s potentially unnecessary motion. CONCLUSION For the forgoing additional reasons, BASF’s time to respond to the Complaint should be stayed.

Respectfully submitted, s/ Lynda A, Bennett Lynda A. Bennett

B1004'164 44-24 215926429.1

ce: Counsel of record (via ECF)

Lowenstein S.andier