Bankruptcy has been a comfortable haven for W.R. Grace & Co. for 11 years, but the company could emerge any day now -- or not.
Grace has avoided putting any time frame on when it will officially close its case, and for good reason. "You've asked the $64,000 question," says Grace spokesman Greg Euston about an exit date.
Judge Ronald L. Buckwalter of the U.S. District Court for the District of Delaware in Wilmington confirmed W.R. Grace's reorganization plan on Jan. 30 -- one day shy of a year since the plan's Jan. 31, 2011, confirmation by Judge Judith K. Fitzgerald of the U.S. Bankruptcy Court for the District of Delaware in Wilmington. Asbestos-related bankruptcy plans are subject to the jurisdiction of the related U.S. district court under Section 524(g) of the Bankruptcy Code.
The clock is now ticking. Potential appellants have until July 11 to appeal Buckwalter's confirmation order to the 3rd Circuit Court of Appeals and W.R. Grace will have 30 days after that to respond. The court will then hear arguments and make a decision.
The 30-day window started June 11, when Buckwalter reissued his confirmation decision, overruling all objections. Buckwalter affirmed his decision to address a plea from Garlock Sealing Technologies LLC, which he previously ruled had no standing in Grace's case. Garlock, which is proceeding through its own bankruptcy case in the U.S. Bankruptcy Court for the Western District of North Carolina in Charlotte, was named as a defendant alongside Grace in thousands of lawsuits claiming asbestos-related injuries.
Garlock has spent about $1.37 billion in indemnity payments and used more than $1 billion in insurance coverage, but still has 100,000 asbestos-related claims pending. The company had sought indemnity and contributions from Grace for many claims involving both companies.
The original 202-page U.S. District Court decision confirming W.R. Grace's plan rules that Garlock removed itself from the tort system once it filed for bankruptcy on June 5, 2010. Garlock filed its plan on Nov. 28, which, like Grace's, channels current and future claims to a trust. Garlock, however, has asserted that it hasn't yet officially established its trust and still may choose to litigate all claims in court.
Buckwalter's confirmation opinion said that if, by chance, Garlock returns to the tort system and suffers a judgment for which it would have to pay liabilities on account of Grace, then that would be accounted for under Grace's plan. Buckwalter then decided Garlock had no standing to appeal the order confirming Grace's plan.
On Feb. 3, however, Garlock moved the District Court to reconsider whether it could appeal. Garlock said Buckwalter's ruling misreads its plan, which it seems to assume has already been confirmed. The company noted its plan has only been proposed -- the court hasn't even approved its disclosure statement -- and therefore the plan could change. Buckwalter took the matter under advisement after hearing arguments on May 8.
Depending on the nature of the appeals, Grace may be able to emerge from bankruptcy before all appeals are settled. The company, however, won't know the nature of the appeals until the 30-day window to file appeals closes.
"The company no longer offers any estimates on when it will emerge," says Euston. After 11 years in bankruptcy, what's a few more months?