Case LSS Doc 2164 Filed 09/04/20 Page 1 of 11 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. x : : : : : : : : x

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ---

In re:

IMERYS TALC AMERICA, INC., et al.,1 Debtors. --- x : : : : : : : : x Chapter 11 Case No. 19-10289 (LSS) (Jointly Administered)

Hearing Date: September 23, 2020 at 10:00 a.m. ET Objection Deadline: September 16, 2020 at 4:00 p.m. ET

DEBTORS’ MOTION FOR ORDER UNDER 28 U.S.C. § 1452 AND FED. R. BANKR. P. 9006(b) AND 9027, FURTHER EXTENDING THE DEADLINE BY WHICH THE DEBTORS MAY REMOVE CIVIL ACTIONS

The debtors and debtors-in-possession in the above-captioned cases (collectively, the “Debtors”) hereby file this motion (the “Motion”) for entry of an order substantially in the form attached hereto as Exhibit A, under 28 U.S.C. § 1452 and Rules 9006(b) and 9027 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), extending by 117 days the deadline by which they may file notices of removal under Bankruptcy Rule 9027(a) (the “Removal Deadline”), from the current deadline of September 4, 2020, through and including December 30, 2020. In support of this Motion, the Debtors, by and through their undersigned counsel, respectfully represent:

JURISDICTION

1. This Court has jurisdiction to consider this Motion under 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012. This is a core proceeding pursuant to 28 U.S.C.

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§ 157(b). Venue of this proceeding and this Motion in this district is proper under 28 U.S.C. §§ 1408 and 1409. The statutory predicates for the relief requested herein are Bankruptcy Rules 9006(b) and 9027.

BACKGROUND

2. On February 13, 2019 (the “Petition Date”), the Debtors filed voluntary petitions in this Court commencing cases (the “Chapter 11 Cases”) for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). The factual background regarding the Debtors, including their business operations and the events leading to the filing of the Chapter 11 Cases, is set forth in detail in the Declaration of Alexandra Picard, Chief Financial Officer of the Debtors in Support of Chapter 11 Petitions and First Day Pleadings [Docket No. 10], which was filed on the Petition Date and is fully incorporated herein by reference.

3. The Debtors continue to manage and operate their businesses as debtors-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. On March 5, 2019, the Office of the United States Trustee for the District of Delaware (the “U.S. Trustee”) appointed an official committee of tort claimants (the “TCC”) in the Chapter 11 Cases. On June 3, 2019, the Court entered an order [Docket No. 647] appointing James L. Patton Jr. as the representative for future talc personal injury claimants pursuant to sections 105(a), 524(g)(4)(B)(i) and 1109(b) of the Bankruptcy Code (the “FCR”). As of this date, no trustee or examiner has been requested or appointed in the Chapter 11 Cases.

4. The Chapter 11 Cases are jointly administered for procedural purposes only pursuant to Bankruptcy Rule 1015(b).

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Actions [Docket No. 254], extending the Debtors’ original deadline to file notices of removal from May 14, 2019 through and including September 11, 2019.

6. On September 18, 2019, the Court entered its Order Under 28 U.S.C. § 1452 and Fed. R. Bankr. P. 9006(b) and 9027, Further Extending the Deadline by which the Debtors May Remove Civil Actions [Docket No. 1050], extending the Debtors’ deadline to file notices of removal from September 11, 2019 through and including January 9, 2020.

7. On January 23, 2020, the Court entered its Third Order Under 28 U.S.C. § 1452 and Fed. R. Bankr. P. 9006(b) and 9027, Further Extending the Deadline by which the Debtors May Remove Civil Actions [Docket No. 1447], extending the Debtors’ deadline to file notices of removal from January 9, 2020 through and including May 8, 2020 (the “Third Removal Order”). 8. On June 1, 2020, the Court entered its Fourth Order Under 28 U.S.C. § 1452 and Fed. R. Bankr. P. 9006(b) and 9027, Further Extending the Deadline by which the Debtors May Remove Civil Actions [Docket No. 1784], extending the Debtors’ deadline to file notices of removal from May 8, 2020 through and including September 4, 2020 (the “Fourth Removal Order”).

RELIEF REQUESTED

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it become necessary to do so. The Debtors respectfully request that the proposed December 30, 2020 Removal Deadline apply to all matters specified in Bankruptcy Rules 9027(a)(2) and (3).2

BASIS FOR RELIEF

10. The removal of pending civil actions is governed by 28 U.S.C. § 1452 and Bankruptcy Rule 9027. Specifically, section 1452(a) provides:

A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.

28 U.S.C. § 1452(a). Bankruptcy Rule 9027(a)(2) further provides, in relevant part: If the claim or cause of action in a civil action is pending when a case under the [Bankruptcy] Code is commenced, a notice of removal may be filed [in the bankruptcy court] only within the longest of (A) 90 days after the order for relief in the case under the [Bankruptcy] Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under § 362 of the [Bankruptcy] Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief.

Bankruptcy Rule 9027(a)(2).

11. With respect to postpetition actions, Bankruptcy Rule 9027(a)(3) provides that a notice of removal may be filed:

[O]nly within the shorter of (A) 30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed, or (B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons.

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12. Under Bankruptcy Rule 9006(b), the Court may extend unexpired time periods, such as the Debtors’ removal period, without notice:

[W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion . . . with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Fed. R. Bankr. P. 9006(b).

13. It is well settled, in this district and others, that this Court is authorized to extend, for cause, the removal period provided under 28 U.S.C. § 1452 and Bankruptcy Rule 9027. See Pacor, Inc. v. Higgins, 743 F.2d 984, 996 n.17 (3d Cir. 1984), overruled on other grounds by Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 134–35 (1995) (holding the bankruptcy court’s power to grant an extension of the removal period pursuant to Bankruptcy Rule 9006(b) is “clear”); see also Caperton v. A.T. Massey Coal Co., Inc., 251 B.R. 322, 325 (S.D. W.Va. 2000) (“Considered in pari materia with [Bankruptcy] Rule 9027, [Bankruptcy] Rule 9006 provides authority to enlarge the thirty-day time period for removing actions arising under the Bankruptcy Code.”); In re Jandous Elec. Constr. Corp., 106 B.R. 48, 50 (Bankr. S.D.N.Y. 1989) (holding that the period in which to file a motion to remove may be expanded pursuant to Bankruptcy Rule 9006); In re World Fin. Servs. Ctr., Inc., 81 B.R. 33, 39 (Bankr. S.D. Cal. 1987) (noting that “it appears that the Supreme Court intended to give bankruptcy judges the powers to enlarge the filing periods” of Bankruptcy Rule 9027(a) pursuant to Bankruptcy Rule 9006(b)); Raff v. Gordon, 58 B.R. 988, 990 (E.D. Pa. 1986) (“An expansion of time [to file notices of removal] is authorized under the [Bankruptcy] Rules.”).

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distributed by one or more of the Debtors (collectively, the “Civil Actions”), and believe that it is prudent to seek a further extension of the time established by Bankruptcy Rule 9027 to protect the rights of the Debtors and their estates to remove these Civil Actions.

15. Since the commencement of the Chapter 11 Cases, the Debtors’ management and professional advisors have devoted a significant amount of time and effort towards ensuring a steady progression of the Chapter 11 Cases. As a result of productive discussions and negotiations with the TCC, the FCR, and other key parties in these Chapter 11 Cases, on May 15, 2020, the Debtors filed the Joint Chapter 11 Plan of Reorganization of Imerys Talc America, Inc. and Its Debtor Affiliates Under Chapter 11 of the Bankruptcy Code [Docket No. 1714] (the “Plan”) and the Disclosure Statement for Joint Chapter 11 Plan of Reorganization of Imerys Talc America, Inc. and Its Debtor Affiliates Under Chapter 11 of the Bankruptcy Code [Docket No. 1715], which (i) embody a global settlement (the “Imerys Settlement”) of issues among the Debtors, the TCC, the FCR, and Imerys S.A. (the Debtors’ parent entity) and the Debtors’ non-debtor affiliates, and (ii) establish the Talc Personal Injury Trust to resolve Talc Personal Injury Claims (each as defined in the Plan) against the Debtors and other specified parties.

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claims between the parties and generates substantial recoveries for holders of Talc Personal Injury Claims, and (ii) facilities the assumption of the defense of all J&J Talc Claims (as defined in the Amended Plan) by Johnson & Johnson and/or its affiliates. In addition, the Amended Plan and Amended Disclosure Statement were filed in part to address certain objections and informal comments the Debtors received from various third parties. As of the date hereof, the Amended Disclosure Statement has not yet been approved by the Court.

17. In conjunction with the Imerys Settlement, the Debtors also filed a motion seeking a Court order (i) authorizing and approving bidding procedures for the sale of all or substantially all of the Debtors’ assets; (ii) establishing procedures for the assumption and assignment of certain executory contracts and unexpired leases; (iii) establishing procedures in connection with the selection of a Stalking Horse Bidder (as defined therein), if any, and related protections; and (iv) approving the sale of assets free and clear of all Interests (as defined therein) pursuant to an asset purchase agreement [Docket No. 1718] (the “Sale Motion”). As detailed in the Sale Motion, the Debtors are pursuing a sale of all or substantially all of their assets to one or more buyers pursuant to section 363 of the Bankruptcy Code. On June 30, 2020, the Court entered an order [Docket No. 1950] that, among other things, established procedures related to the potential sale and the assumption and assignment of certain executory contracts and unexpired leases. Currently the hearing to approve the sale of the Debtors’ assets is set for November 4, 2020.

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19. As a result of the foregoing, including the variety of ongoing litigation proceedings and other negotiations, the Debtors are not yet in a position to determine whether it is appropriate to file notices of removal as to all or certain of the Civil Actions. Proceeding with prudence, the Debtors therefore seek a further extension of the time prescribed under Bankruptcy Rule 9027(a), from September 4, 2020 through and including December 30, 2020, to protect their right to remove those Civil Actions and other pending litigation if they deem it to be appropriate to do so. The extension sought will afford the Debtors a reasonable period to determine whether to remove pending litigation and will ensure that the Debtors do not forfeit valuable rights under 28 U.S.C. § 1452. Further, the rights of the Debtors’ adversaries in any litigation will not be prejudiced by such an extension because any party to an action that is removed may seek to have it remanded to the state court pursuant to 28 U.S.C. § 1452(b).

20. The Debtors further request that the order approving this Motion be without prejudice to (a) any position the Debtors may take on whether section 362 of the Bankruptcy Code stays any given Civil Action or other litigation pending against the Debtors and (b) the right of the Debtors to seek further extensions of the Removal Deadline.

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No. 16-31602 (JCW) (Bankr. W.D.N.C. June 14, 2017); In re Garlock Sealing Technologies LLC, Case No. 10-BK-31607 (Bankr. W.D.N.C. Feb. 18, 2011).

CONSENT TO JURISDICTION

22. Pursuant to Local Rule 9013-1(f), the Debtors consent to the entry of a final judgment or order with respect to this Motion if it is determined that the Court would lack Article III jurisdiction to enter such final order or judgment absent consent of the parties.

NOTICE

23. Notice of this Motion will be given to: (a) the U.S. Trustee; (b) the United States Attorney for the District of Delaware; (c) the Internal Revenue Service; (d) counsel to the TCC; (e) counsel to the FCR; and (f) those parties that have requested notice pursuant to Bankruptcy Rule 2002. The Debtors submit that, under the circumstances, no other or further notice is required.

24. A copy of this Motion is available on (a) the Court’s website: www.deb.uscourts.gov, and (b) the website maintained by the Debtors’ Claims and Noticing Agent, Prime Clerk LLC, at https://cases.primeclerk.com/imerystalc.

NO PRIOR REQUEST

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WHEREFORE, the Debtors respectfully request that the Court enter an order, substantially in the form attached hereto as Exhibit A, granting the relief requested in the Motion and such other and further relief as may be just and proper.

Dated: September 4, 2020 Wilmington, Delaware

/s/ Sarah E. Silveira

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981)

Michael J. Merchant (No. 3854) Amanda R. Steele (No. 5530) Brett M. Haywood (No. 6166) Sarah E. Silveira (No. 6580) One Rodney Square

920 North King Street Wilmington, DE 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: collins@rlf.com merchant@rlf.com steele@rlf.com haywood@rlf.com silveira@rlf.com - and -

LATHAM & WATKINS LLP

Jeffrey E. Bjork (admitted pro hac vice) Kimberly A. Posin (admitted pro hac vice) Helena G. Tseregounis (admitted pro hac vice) 355 South Grand Avenue, Suite 100

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Richard A. Levy (admitted pro hac vice) 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611

Telephone: (312) 876-7700 Facsimile: (312) 993-9767

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ---

In re:

IMERYS TALC AMERICA, INC., et al.,1 Debtors. --- x : : : : : : : : x Chapter 11 Case No. 19-10289 (LSS) (Jointly Administered)

Hearing Date: September 23, 2020 at 10:00 a.m. (ET) Obj. Deadline: September 16, 2020 at 4:00 p.m. (ET)

NOTICE OF MOTION AND HEARING

PLEASE TAKE NOTICE that, on September 4, 2020, the above-captioned debtors and debtors in possession (collectively, the “Debtors”) filed the Debtors’ Motion for Order Under 28 U.S.C. § 1452 and Fed. R. Bankr. P. 9006(b) and 9027, Further Extending the Deadline by Which the Debtors May Remove Civil Actions (the “Motion”) with the United States Bankruptcy Court for the District of Delaware (the “Court”).

PLEASE TAKE FURTHER NOTICE that, any responses or objections to the Motion must be in writing and filed with the Clerk of the Court, 824 North Market Street, 3rd Floor, Wilmington, Delaware 19801 on or before September 16, 2020 at 4:00 p.m. (prevailing Eastern Time).

PLEASE TAKE FURTHER NOTICE that, if any objections to the Motion are received, the Motion and such objections shall be considered at a hearing before The Honorable Laurie Selber Silverstein, United States Bankruptcy Judge for the District of Delaware, at the

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Court, 824 North Market Street, 6th Floor, Courtroom No. 2, Wilmington, Delaware 19801 on September 23, 2020 at 10:00 a.m. (prevailing Eastern Time).

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Dated: September 4, 2020 Wilmington, Delaware

/s/ Sarah E. Silveira

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981)

Michael J. Merchant (No. 3854) Amanda R. Steele (No. 5530) Brett M. Haywood (No. 6166) Sarah E. Silveira (No. 6580) One Rodney Square

920 North King Street

Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: collins@rlf.com merchant@rlf.com steele@rlf.com haywood@rlf.com silveira@rlf.com - and -

LATHAM & WATKINS LLP

Jeffrey E. Bjork (admitted pro hac vice) Kimberly A. Posin (admitted pro hac vice) Helena G. Tseregounis (admitted pro hac vice) 355 South Grand Avenue, Suite 100

Los Angeles, California 90071-1560 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 E-mail: jeff.bjork@lw.com kim.posin@lw.com helena.tseregounis@lw.com - and -

Richard A. Levy (admitted pro hac vice) 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611

Telephone: (312) 876-7700 Facsimile: (312) 993-9767

E-mail: richard.levy@lw.com

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ---

In re:

IMERYS TALC AMERICA, INC., et al.,1 Debtors. --- x : : : : : : x Chapter 11 Case No. 19-10289 (LSS) (Jointly Administered) Re: Docket No. __

FIFTH ORDER UNDER 28 U.S.C. § 1452 AND FED. R. BANKR. P. 9006(b) AND 9027, FURTHER EXTENDING THE DEADLINE BY WHICH

THE DEBTORS MAY REMOVE CIVIL ACTIONS

Upon the motion (the “Motion”)2 of the Debtors for an order under 28 U.S.C. § 1452 and Bankruptcy Rules 9006(b) and 9027 extending the Removal Deadline; and the Court having reviewed the Motion; and the Court having jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012; and the Court having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2) and that this Court may enter a final order consistent with Article III of the United States Constitution; and the Court having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and it appearing that proper and adequate notice of the Motion has been given and that no other or further notice is necessary; and upon the record herein; and after due deliberation thereon; and the Court having determined that there is good and sufficient cause for the relief granted in this order, it is hereby

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The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Imerys Talc America, Inc. (6358), Imerys Talc Vermont, Inc. (9050), and Imerys Talc Canada Inc. (6748). The Debtors’ address is 100 Mansell Court East, Suite 300, Roswell, Georgia 30076. 2

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ORDERED, ADJUDGED, AND DECREED THAT: 1. The Motion is GRANTED, as set forth herein.

2. All objections to entry of this Order, to the extent not withdrawn or settled, are overruled.

3. The Removal Deadline is extended by 117 days, through and including December 30, 2020.

4. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion.

5. This Order is without prejudice to (a) any position the Debtors may take on whether section 362 of the Bankruptcy Code stays any litigation pending against the Debtors and (b) the Debtors’ right to seek further extensions of the Removal Deadline.

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