Petition for Writ of Certiorari — Charter Consolidated, Ltd., et al., Petitioners v. Cape Intermediate Holdings Limited, Individually and as Successor in Interest to Cape Asbestos Company Limited, By and Through Its Receiver Peter D. Protopapas, et al.

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the Supreme Court

of South Carolina (May 27, 2026) ...................... 1a

APPENDIX B: Order of the Supreme Court

of South Carolina Denying Rehearing

(Aug. 4, 2026) .................................................... 36a

APPENDIX C: Order of the Supreme Court

of South Carolina Denying Stay of

Remittitur (Aug. 25, 2026) ............................... 41a

APPENDIX D: Order of the Supreme Court

of South Carolina Granting Certiorari

(June 26, 2025) ................................................. 54a

APPENDIX E: Order of the South Carolina

Court of Common Pleas (Oct. 13, 2025) ........... 62a

APPENDIX F: Order of the South Carolina

Court of Common Pleas (Mar. 17, 2023) ........ 127a

APPENDIX G: Excerpts of Briefs Below ............. 131a

APPENDIX H: Constitutional Provisions

Involved ........................................................... 165a

U.S. Const. amend. XIV, § 1 ........................... 165a

U.S. Const. art. I, § 8, cl. 3 ............................. 165a

1a

APPENDIX A

THE STATE OF SOUTH CAROLINA

In The Supreme Court

John A. Tibbs and Margaret B. Tibbs, Respondents,

v.

3M Company; 4520 Corp., Inc.; A.O. Smith

Corporation; A. W. Chesterton Company; ABB Inc.;

Air & Liquid Systems Corporation; AIW-2010 Wind

Down Corp.; Amentum Environment & Energy,

Inc.; Anchor/Darling Valve Company; Armstrong

International, Inc.; Asbestos Corporation Limited

ASCO, L.P.; Atlas Asbestos Co.; Atlas Turner, Inc.;

AWT Air Company, Inc.; Bahnson, Inc.; Banner

Industries International, Inc.; Banner Industries,

LLC; Banner Industries of N.E., Inc.; Barretts

Minerals, Inc.; Beaty Investments, Inc.; Bechtel

Corporation; The Bonitz Company; Brand

Insulations, Inc.; BW/IP, Inc.; Canvas CT, LLC;

Cape plc; Carboline Company; CB&I Laurens, Inc.;

Cleaver-Brooks, Inc.; Consolidated Electrical

Distributors, Inc.; Copes-Vulcan, Inc.; Covil

Corporation; Crane Instrumentation & Sampling,

Inc.; Crosby Valve, LLC; Daniel International

Corporation; Davis Mechanical Contractors, Inc.;

Dezurik, Inc.; Duke Energy Carolinas, LLC; Duke

Energy Corporation; Eaton Corporation; Ellington

Insulation Company, Inc.; Emerson Electric Co.;

Fisher Controls International, LLC; Flame

Refractories, Inc.; Flowserve Corporation;

Flowserve US, Inc.; Fluor Constructors

International; Fluor Constructors International,

Inc.; Fluor Daniel Services; Fluor Enterprises, Inc.;

FMC Corporation; Foster Wheeler Energy

2a

Corporation; Gardner Denver Nash, LLC; General

Boiler Casing Company, Inc.; General Cable

Corporation; General Cable Industries, Inc.;

General Electric Company; Gould Electronics, Inc.;

Goulds Pumps, Incorporated; Goulds Pumps, LLC;

Great Barrier Insulation Co.; Grinnell, LLC; Hajoca

Corporation; Howden North America, Inc.; HPC

Industrial Services, LLC; IMO Industries, Inc.; ITT,

LLC; Joy Global Underground Mining, LLC; K-Mac

Services, Incorporated; Metropolitan Life Insurance

Company; Mine Safety Appliances Company, LLC;

MP Supply, Inc.; The Nash Engineering Company;

Occidental Chemical Corporation; Paramount

Global; Patterson Pump Company; PECW Holding

Company; Pfizer, Inc.; Piedmont Insulation, Inc.;

Plastics Engineering Company; Presnell Insulation,

Co., Inc.; Redco Corporation; Riley Power, Inc.;

Rockwell Automation, Inc.; RSCC Wire & Cable,

LLC; Schneider Electric USA, Inc.; Sequoia

Ventures, Inc.; Spirax Sarco, Inc.; SPX Corporation;

Stafford Insulation Company; Standard Insulation

Company of N.C., Inc.; Starr Davis Company, Inc.;

Starr Davis Company of S.C., Inc.; Sterling Fluid

Systems (USA), LLC; TE Wire & Cable, LLC;

Thermo Electric Company, Inc.; Union Carbide

Corporation; Valves and Controls US, Inc.; Velan

Valve Corp.; Viking Pump, Inc; Vistra Intermediate

Company, LLC; The William Powell Company;

Wind Up, Ltd.; Yuba Heat Transfer LLC; and Zurn

Industries, LLC, Defendants,

And Cape plc, individually and as successor in

interest to Cape Asbestos Company Limited, by and

through its duly appointed Receiver Peter D.

Protopapas, Respondent,

v.

3a

Anglo American PLC, individually and as successor

in interest to Anglo American Corporation of South

Africa, Ltd.; DeBeers, PLC, individually and as

successor in interest to DeBeers S.A.; DeBeers

Centenary AG; DeBeers Consolidated Mines, Ltd.,

n/k/a DeBeers Consolidated Mines Proprietary,

Ltd.; DeBeers UK, Ltd.; DeBeers Jewelers, Ltd.;

DeBeers Jewelers US, Inc.; Anglo American US

Holdings, Inc.; Element Six US Corp.; Element Six

Technologies US Corp.; Element Six Technologies

(OR) Corp.; First Mode Holdings, Inc.; Platinum

Guild International (USA) Jewelry, Inc.; Lightbox

Jewelry, Inc.; Forevermark US, Inc.; Anglo

American Crop Nutrients (USA), LLC; Charter

Consolidated, Ltd.; ESAB Corporation; Central

Mining & Investment Corporation, Ltd.; Cape

Holdco, Ltd.; The Law Debenture Corporation, PLC;

Cape Industrial Services Group, Ltd.; Mohed

Altrad; Altrad UK, Ltd.; Cape UK Holdings Newco,

Ltd.; Altrad Services, Ltd., f/k/a Cape Industrial

Services Ltd.; Altrad Investment Authority S.A.S.;

Sparrows Offshore Group, Ltd.; Hawk Bidco US,

Inc.; Arranco US, LLC; Sparrows Offshore, LLC;

The Sparrows Group, LLC, Third-Party

Defendants,

Of Which Charter Consolidated, Ltd.; ESAB

Corporation; Central Mining & Investment

Corporation, Ltd.; Mohed Altrad; and Altrad

Investment Authority S.A.S., are the Appellants.

Appellate Case No. 2025-002104

Appeal From Richland County

Jean Hoefer Toal, Acting Circuit Judge

4a

Opinion No. 28337

Heard February 25, 2026 – Filed May 27, 2026

AFFIRMED AS MODIFIED IN PART AND

REVERSED IN PART

A. Victor Rawl, Jr. and William James Blount, of

Gordon & Rees LLP, of Charleston, for Appellants

Charter Consolidated, Ltd., ESAB Corporation, and

Central Mining & Investment Corporation, Ltd.

Kevin A. Hall and Matthew Todd Carroll, of

Womble Bond Dickinson (US) LLP, of Columbia; and

Mary Elizabeth O’Neill, of Womble Bond Dickinson

(US) LLP, of Charlotte, North Carolina; all for

Appellants Altrad Investment Authority S.A.S. and

Mohed Altrad.

Gray Thomas Culbreath and John Thomas Lay,

Jr., of Gallivan, White & Boyd, PA, of Columbia;

Lindsay Anne Joyner and Eleanor Lasseigne Jones,

of Gallivan, White & Boyd, PA, of Charleston;

Jonathan M. Robinson and Shanon N. Peake, of

Smith Robinson Holler DuBose Morgan, LLC, of

Columbia; George Murrell Smith, Jr., of Smith

Robinson Holler DuBose Morgan, LLC, of Sumter;

Troy S. Brown, of Philadelphia, Pennsylvania;

Lauren McCulloch Semlinger, of Houston, Texas;

and Paul A. Scrudato, of New York, New York; all for

Respondent Cape, PLC.

Theile Branham McVey, John D. Kassel, and

Jamie Rae Rutkoski, of Kassel McVey, of Columbia;

Charles William Branham, III and David

Christopher Humen, of Dean Omar Branham

5a

Shirley, LLP, of Dallas, Texas; all for Respondents

Margaret B. Tibbs and John A. Tibbs.

James Ledlie of Motley Rice, LLC, of Mount

Pleasant, as Amicus Curiae for Motley Rice, LLC.

Kush A. Shukla of Meirowitz & Wasserberg, LLP, of

Columbia, as Amicus Curiae for Meirowitz &

Wasserberg, LLP. Joshua Drew Cagle of Maune,

Raichle, Hartley, French & Mudd, LLC, of Mount

Pleasant, as Amicus Curiae for Maune, Raichle,

Hartley, French & Mudd, LLC. Kenneth J. Wilson of

Roger, Patrick, Westbrook & Brickman, LLC, as

Amicus of Curiae for Rogers, Patrick, Westbrook &

Brickman, LLC. Thomas A. Limehouse, Jr. of

Limehouse LLC, as Amici Curiae for Santa Fe

Braun, Inc.; Rentavla, LLC; ITT, LLC; Goulds

Pumps, LLC; Dovers, LLC and Velvet V.

Corporation. William Camden Lewis of Richardson

Thomas, LLC, of Columbia; Terry E. Richardson, Jr.

of Richardson Thomas, LLC, of Barnwell; Robert W.

Cowan of Bailey Cowan Heckaman, PLLC, of

Houston Texas, all as Amicus Curiae for Asbestos

Victims. Jenna Brooke Kiziah McGee of Parker Poe

Adams & Bernstein, LLP, of Charleston, as Amicus

Curiae for New-Indy Containerboard, LLC. Wesley

Brian Sawyer of Murphy & Grantland, PA, of

Columbia, as Amicus Curiae for National Union Fire

Insurance Co. of Pittsburgh, PA. Beattie B. Ashmore

of Beattie B. Ashmore, PA, of Greenville, as Amicus

Curiae.

JUSTICE HILL: This is an appeal from an order

in an asbestos case confirming the appointment of a

receiver over Cape Intermediate Holdings Limited

(CIHL), an English company. We refer to the order as

the Confirmation Order. The case was brought by

6a

John A. Tibbs and his wife, who sued numerous

defendants alleging they had caused Mr. Tibbs’ lung

cancer. The Tibbs’ complaint named Cape plc as one

of the defendants.

It is helpful to begin by straightening out the

confusion about which “Cape” entity is the real party

in interest in this litigation. Both Cape plc and CIHL

are descendants of Cape Asbestos Company, LTD,

which was incorporated in E ngland in 1893. Space

and time do not allow us to recount the vertigoinducing chronology of changes to the name and

corporate form Cape Asbestos Company, LTD has

undergone since its 1893 birth. What matters is that

everyone agrees the correct entity is CIHL, and the

Confirmation Order reflects this change.

There have been pleadings and orders in this case

and another asbestos case known as Park (which we

will soon discuss) that name Cape plc as the

defendant. It appears this Cape plc was a successor

in interest to Cape Asbestos Company, LTD, and

predecessor in interest to CIHL, facts these papers

spell out. This Cape plc was an English company, and

the name of the Cape group from 1989 to 2011.

Appellants argue that the Cape plc that is named in

these cases is not the English company known as Cape

plc, but the entity named Cape plc that was

incorporated in the Bailiwick of Jersey in 2011 (Cape

Jersey) and is a current parent company of CIHL.

They make this argument–which was accepted by an

English court decision we will later discuss–in part to

claim that Cape Jersey cannot be responsible for any

conduct any Cape company took before 2011. For our

purposes, we agree with the trial court that CIHL is

the correct defendant. Any reference to “Cape” in this

7a

opinion refers to CIHL and its predecessors and

affiliates, not Cape Jersey.

The trial court had earlier appointed a receiver for

Cape plc in Park v. Armstrong International, Inc.,

Case No. 2021-CP-40-02727, another asbestos case

where it had not answered or appeared. Keith Park,

who had been the personal representative for his

mother Isabella Park’s estate, moved for the Receiver

to be appointed.

Due to confusion or

miscommunication, and unbeknownst to Keith’s trial

counsel and the trial court, the Park estate had been

closed, and Keith’s appointment as personal

representative had been terminated before he filed

the motion. The trial court granted Keith’s motion in

2023. It appears trial counsel did not learn of the

estate closure until 2025, at which time the estate was

reopened and Keith was reappointed as personal

representative.

The Park Appointment Order directed the

Receiver to, among other things, “administer all

assets of Cape, accept service on behalf of Cape,

engage counsel on behalf of Cape and take any and all

steps necessary to protect the interests of Cape

whatever they may be.”

Although the order

emphasized the Receiver was to collect and

administer “any insurance assets of Cape,” the third

paragraph of the order gave the Receiver sweeping

powers over Cape’s property.

Relying on the Park Appointment Order, the

Receiver accepted service of the Tibbs’ complaint on

behalf of Cape plc. The Receiver answered the

complaint and brought a third-party complaint

against several parties, including (1) Altrad

Investment Authority SAS and Mohed Altrad

(collectively, the Altrad appellants), and (2) Charter

8a

Consolidated Ltd., E SAB Corporation, and Central

Mining & Investment Corporation Ltd. (collectively,

the Charter appellants), who are the Appellants now

before us. The Receiver’s third-party complaint

alleges causes of action for unjust enrichment,

constructive trust, alter-ego/amalgamation, and

accounting.

Appellants answered the third-party complaint

and also moved to dismiss it, contending the trial

court lacked personal jurisdiction over Cape and

them. They also moved to dissolve the receivership

over Cape. After the trial court denied both motions,

Appellants appealed and filed two petitions for writ of

certiorari.

The appeals were dismissed as

interlocutory. In the meantime, we decided Welch v.

Advance Auto Parts, Inc., 445 S.C. 640, 916 S.E.2d 320

(2025), cert. denied sub nom. Atlas Turner, Inc. v.

Welch, No. 25-213, 2026 WL 79875 (U.S.S.C. Jan. 12,

2026), which set forth guidelines for appointing a

receiver before judgment and clarified the scope of the

receiver’s authority in that case. In the wake of Welch,

we granted Appellants’ two pending certiorari

petitions and remanded to the trial court with

instructions directing the trial court to confirm the

Receiver’s appointment and scope of authority

complied with Welch. We further directed the trial

court to ensure “the receiver has been authorized to

conduct its work by an order filed in the specific case

as to which the work is to take place. The receiver is

not to be authorized to conduct work as to a case in

which no receiver appointment order has been filed.”

The order also warned the parties against filing future

improper petitions or interlocutory appeals

(Appellants have filed over a dozen related to this

case) or engaging in other inappropriate behavior, and

it held several motions for sanctions in abeyance.

9a

Once Tibbs was remanded, Appellants renewed

their attacks on the Park Appointment Order. For his

part, the Receiver sought an order confirming that his

appointment in Park satisfied Welch and our remand

instructions.

On October 13, 2025, the trial court issued the

Confirmation Order. Besides clarifying that CIHL

was the correct defendant, the Confirmation Order

ruled that a pre-judgment receiver was warranted for

CIHL because it had engaged in moral fraud and was

in danger of insolvency. The Confirmation Order also

scaled back the scope of the Receiver’s authority.

This appeal followed. Appellants challenge the

Confirmation Order on numerous fronts. They claim

the Confirmation Order is void because it is merely a

continuation of the Park Appointment Order and not

a receivership order entered “in the specific case” as

our June 26 remand order required. Appellants

further contend the Confirmation Order is

illegitimate because it relied on the Park Appointment

Order, which they claim was void or invalid for

various reasons that we will soon examine.

Appellants also maintain the Confirmation Order

runs afoul of Welch, and that no personal jurisdiction

exists over either CIHL or the Appellants.

We now address these arguments, mindful our

standard of review requires us to uphold the

Confirmation Order unless the trial court exceeded its

wide discretion in imposing it. See Midlands Util.,

Inc. v. S.C. Dep’t of Health & Env’t Control, 301 S.C.

224, 228, 391 S.E.2d 535, 538 (1989) (providing “the

appointment of a receiver is within the discretion of

the circuit judge”).

10a

I.

A. Whether the Confirmation Order was a

Receivership Order Filed in this “Specific Case”

The trial court believed it was complying with the

remand order by filing the Park Appointment Order

and the Confirmation Order in the Tibbs action. We

understand the trial court’s reasoning and agree the

filing met the spirit of our instructions. We also

acknowledge that where a general receiver has been

appointed, it is not always practical or efficient to

require a new receivership appointment process in

every case in which the receiver may need to act. See

Adler v. Seamen, 266 F. 828, 838–39 (8th Cir. 1920);

see also Rule 66, SCRCP. In such instances, the

traditional practice has been for the receiver to return

to the appointing court and seek an expansion of his

authority allowing him to act in the new matter. See

Equity Trust Co. Custodian ex rel. Eisenmenger IRA v.

Cole, 766 N.W.2d 334, 341–42 (Minn. Ct. App. 2009);

1 Ralph Ewing Clark, Clark on Receivers § 108 (3d ed.

1959); 75 C.J.S. Receivers § 63 (March 2026 Update).

But in this case, the Receiver (who is a pre-judgment,

rather than general, receiver) did not seek such

permission, and the trial court did not require it.

In future cases, a pre-judgment receiver should

not be authorized to take control of a company’s assets

or otherwise act in lawsuits outside the case in which

he is appointed. Of course, if a receiver is appointed

after judgment, the trial court has much more latitude

in permitting the receiver to operate in other matters

or lawsuits and in expanding the receiver’s authority.

B. The Park Appointment Order

As mentioned, much of Appellants’ attack on the

Confirmation Order focuses on their belief that the

11a

2023 Park Appointment Order for Cape plc is void or

invalid. Cape plc has not challenged the Park

Appointment Order or made any objection or

appearance in that lawsuit.

In normal circumstances, Appellants would not

have standing to challenge Keith’s capacity to file the

motion for a receivership because they are not parties

in Park. In general, a receivership order is not subject

to collateral attack by a third party unless the order

is void. See Green v. Bookhart, 19 S.C. 466, 470–71

(1883) (“A third person, when sued, cannot object to

the regularity of the receiver’s appointment when the

judgment debtor has waived the objection . . . “

(cleaned up)). However, “[i]f the court is without

jurisdiction to appoint a receiver the order is void and

may be attacked or disregarded whenever it comes

collaterally in question.” Porter v. Brown, 149 S.C.

151, 162 n.1, 146 S.E. 810, 814 n.1 (1929) (quoting 34

Cyc. p. 168) (J. Cothran, concurring in result); see also

Grant v. A.B. Leach & Co., 280 U.S. 351, 359 (1930)

(holding validity of receivership appointment “could

not have been questioned by a collateral attack in

another court”); Hudson v. All Star Mills, Inc., 315

S.E.2d 514, 516–17 (N.C. Ct. App. 1984); Clark, supra,

at § 109; 16 Fletcher Cyc. Corp. § 7764 (2025).

Here, Appellants are parties in Tibbs. Because the

Park Appointment Order and the Confirmation Order

have been filed in Tibbs, Appellants may challenge

the receivership directly. We emphasize, however,

that an order appointing a receiver may not be

challenged in a collateral case unless it is shown the

appointment order is void.

We remind that an order is only void if it is issued

from a court that lacked personal jurisdiction or

subject matter jurisdiction. Thomas & Howard Co. v.

12a

T.W. Graham & Co., 318 S.C. 286, 291, 457 S.E .2d

340, 343 (1995) (“Irregularities which do not involve

jurisdiction do not render a judgment void.”).

Appellants make numerous claims that the

Confirmation Order is void. There is no question the

trial court had subject matter jurisdiction over the

wrongful death action and the receivership motion,

and the trial court’s rulings that it had personal

jurisdiction over Cape in Park are not before us.

Despite the fact that the issue of personal jurisdiction

is interlocutory, we have reviewed the trial court’s

order denying the Appellants’ motion to dismiss for

lack of personal jurisdiction and the Confirmation

Order, and there is ample prima facie evidence of

personal jurisdiction over each of the Appellants and

Cape. This is despite the fact that Cape has not

appeared at all in this case and the Appellants have

refused to engage in even jurisdictional discovery.

The trial court still has to review the issue on the

merits, and the parties, including Appellants, may

present additional evidence as to this issue at trial.

We therefore cannot accept Appellants’ arguments

that the Confirmation Order is void.

i.

Keith’s

Authority

Representative

as

Personal

We reject Appellants’ suggestion that the Park

Appointment Order is invalid because Ms. Park’s

estate was closed when the order was entered.

Appellants insist the reopening of the estate and

Keith’s reappointment as personal representative

cannot relate back to or otherwise revive the original

receiver appointment order. Yet that is precisely

what section 62-3-701 of the South Carolina Code

(2022) allows.

13a

Appellants point us to a New York case that

concluded South Carolina law did not allow relation

back of actions taken before an estate is reopened for

subsequent administration. See Bargil Assoc., LLC v.

Crites, 135 A.D.3d 676, 677–78 (N.Y. App. Div. 2016).

The sparse Bargil decision overlooked key provisions

of our Probate Code. Although it cited to section 623-608 of the South Carolina Code (2022), which states

the termination of the appointment of a personal

representative “ends the right and power pertaining

to the office,” the section goes on to provide an

exception that allows the terminated personal

representative to “at any time prior to distribution or

until restrained or enjoined by court order . . . perform

acts necessary to protect the estate[.]” Id. And where,

as here, a successor personal representative is

appointed pursuant to section 62-3-613 of the South

Carolina Code (2022), he has “the same power and

duty as the original personal representative to

complete the administration and distribution of the

estate[.]” S.C. Code Ann. § 62-3-716 (2022). And once

a personal representative or successor personal

representative is appointed, his powers “relate back in

time to give acts by the person appointed which are

beneficial to the estate occurring prior to appointment

the same effect as those occurring thereafter.” § 62-3701.

This statutory scheme confirms that Keith’s

reappointment related back in time and gave him the

power and authority to seek appointment of the

Receiver in Park on behalf of his mother’s estate. The

Bargil decision misunderstood this process, and it

relied on two cases that pre-dated our adoption of the

Probate Code. These cases had held that a person

whose appointment as an administrator of an estate

had been terminated had no authority or capacity to

14a

bring a wrongful death action on behalf of the estate,

and any subsequent appointment could not relate

back to the initial filing. See Cockcroft v. Airco Alloys,

Inc., 276 S.C. 184, 277 S.E.2d 587 (1981); Glenn v. E.I.

DuPont De Nemours & Co., 254 S.C. 128, 174 S.E.2d

155 (1970). Appellants proclaim these cases still

control.

But we repudiated Cockcroft and Glenn in

Thomas v. Grayson, 318 S.C. 82, 456 S.E .2d 377

(1995). There, Ms. Thomas, a foreign personal

representative, brought a wrongful death action in

South Carolina. The defendants contended Ms.

Thomas lacked the capacity to sue because she had

not filed the necessary papers in the South Carolina

probate court to authenticate her appointment. By

the time she later filed the papers, the statute of

limitations on the wrongful death suit had run, and

the defendants moved to dismiss on that basis.

Answering a certified question from the federal

district court, we held that under Rules 15(c) and

17(a) of the South Carolina Rules of Civil Procedure,

the amendment of the complaint that reflected the

authentication related back to the filing of the original

complaint, which was within the statute of

limitations. We noted that the rationale of Cockroft

and Glenn “was based on the idea that a change in

[the] plaintiff’s capacity to sue was tantamount to

bringing a new cause of action.” Thomas, 318 S.C. at

89, 456 S.E.2d at 380. We explained this rationale no

longer exists given the pleading rules set forth in

Rules 15(c) and 17(a), which now permit amendments

to pleadings to relate back, so that legitimate claims

are not tossed out on “a technicality in the pleading.”

Id. at 89, 456 S.E.2d at 380–81. Because this holding

was dispositive, we did not address the district court’s

15a

question of whether § 62-3-701 also allows relation

back. We now hold it does.

Appellants claim that § 62-3-701 only applies to

actions taken by someone on behalf of an estate before

it is opened, not to actions taken after an estate has

been closed. Appellants’ interpretation draws no

support from the words of the statute, nor from the

well of common sense. It would be senseless to say

that someone’s beneficial actions taken on behalf of an

estate after the decedent’s death but before the estate

is first opened could be ratified by the later

appointment of a personal representative, but the

same actions taken by someone on behalf of a closed

estate that is later reopened cannot be so rescued. In

either event, the law provides a mechanism for

protection of estate property when an estate has not

yet been opened or has been closed.

Still, Appellants harken to McCullar v. Estate of

Campbell, 381 S.C. 205, 672 S.E.2d 784 (2009), where

we held a claim brought against an estate that has

been closed is a nullity. But McCullar is off point. It

did not address the effect of reopening an estate or

involve the relation back mechanisms of Rules 15 and

17, SCRCP, and § 62-3-701.

ii.

CIHL is the Correct Defendant

Appellants next argue the appointment order is

invalid because it appointed a receiver for Cape plc,

when the true entity at issue is CIHL. As we stated

at the outset, the Confirmation Order corrected this

matter and ruled the proper party is CIHL. It is

settled law that even a judgment is not void because

it misnames or fails to name the real party in interest

if no one has been misled or prejudiced. See Griffin v.

Capital Cash, 310 S.C. 288, 292, 423 S.E.2d 143, 146

16a

(Ct. App. 1992).

It must be remembered that

receivership is an equitable remedy. E quity frowns

upon forfeiture. So do our rules of civil procedure:

Rule 17(a) of the South Carolina Rules of Civil

Procedure prohibits dismissal of an action simply

because the real party in interest was, through honest

mistake or difficulty in ascertaining identity, not

named. See Fisher on behalf of estate of Shaw-Baker

v. Huckabee, 422 S.C. 234, 239, 811 S.E.2d 739, 741

(2018).

Appellants further contend CIHL was not a

named defendant in either Park or Tibbs, that the

court had no personal jurisdiction over Cape, and that

Cape has never been served. The trial court has

already ruled that service of the first amended

complaint was proper on CIHL and Cape plc in Park

and personal jurisdiction existed. The relevant part

of the first amended complaint named “Cape

Intermediate

Holdings

Limited

f/k/a

Cape

Intermediate Holdings plc, individually and as

successor-in-interest to Cape Asbestos Company” and

“Cape plc, individually and as successor-in-interest to

Cape Asbestos Company” as defendants. Appellants’

appeal of those rulings have been deemed

interlocutory, and we will not review the rulings here

today. Appellants’ view that the second amended

complaint (whose allegations against Cape and CIHL

were identical to the first amended complaint) is the

“operative” pleading against CIHL and Cape is

mistaken. And we have just held that the trial court

has cured any misnomer that has occurred. The music

has stopped on Appellants’ name games.

17a

II.

A. Challenges to the Confirmation Order

Having concluded the initial Park Appointment

Order was valid, we now take up the array of

substantive challenges Appellants have lodged

against the Confirmation Order. The first batch of

these challenges relate to Appellants’ belief that the

Receiver’s claims are barred by Adams v. Cape

Industries plc (1990) 1 Ch 433 (CA), and a 2024

decision by a trial judge from the High Court of

Justice for E ngland and Wales (E WHC) that

reaffirmed Adams, CIHL v. Protopapas [2024] EWHC

2999.

i.

The E ffect of Adams and the E WHC’s

Ruling

Once the Receiver began to investigate whether

Cape had any insurance coverage or other assets

responsive to the damages sought against it, CIHL

and Cape Jersey asked the E WHC to enjoin the

Receiver from acting on their behalf. They contended

that the order appointing the Receiver is of no effect

in the United Kingdom because there was no personal

jurisdiction over them. They pointed to the 1990

English decision in Adams v. Cape, which, as a matter

of private international law, refused to recognize and

enforce a default judgement Mr. Adams and others

had obtained against Cape in a Texas federal court.

The Adams court concluded Cape did not have enough

presence in the United States to justify the federal

court’s exercise of jurisdiction over it, at least for

purposes of enforcing the foreign default judgment in

England. The Adams court ruled that Cape’s Illinois

subsidiary’s

distribution

of

Cape’s

asbestos

18a

throughout the United States could not be attributed

to Cape as a matter of English law.

The E WHC saw no daylight between the Texas

default order at issue in Adams and the order

appointing the Receiver for Cape. In its view, the

United Kingdom court did not have to recognize or

enforce an in personam judgment against Cape

because Adams had declared for all time that,

according to principles of private international law,

Cape was not present in the United States.

Interestingly, although the Receiver had not appeared

and was a United States citizen, the E WHC

summarily found it had personal jurisdiction over the

Receiver, though this finding was unaccompanied by

any facts, logic, or law.

The EWHC granted the injunction, and its order

purports to bar the Receiver from acting on behalf of

Cape anywhere in the world. Although the E WHC

acknowledged the Receiver had been appointed by

and is an officer of a South Carolina court, it refused

to craft a “carve-out” to its injunction order to allow

the Receiver to continue to act in South Carolina.

After extensive discussion, the E WHC concluded

comity did not block it from enjoining the Receiver,

the arm of a state court of the United States, for

“[u]nder English law the receiver should not be in a

position to conduct proceedings.” The E WHC took

pains to disclose it intended “no disrespect” by this

ruling, and it did not “sit as some sort of appellate

court” from a South Carolina trial court, though it

appreciated its ruling “brings about a clash between

two court systems.”

The E WHC did what it believed E nglish law

required it to do. We do not quite follow how a

receiver–an officer of the court of a sovereign nation–

19a

can be subject to fines, costs, or imprisonment for

carrying out the duties that court has authorized him

to undertake, and for which the law may offer him

immunity and other protection, but that is a matter,

perhaps, for another day. As noted, the EWHC is a

trial court, and appeals from it go first to the Court of

Appeals and then to the Supreme Court of the United

Kingdom. We are confident the E WHC would be

amazed at how Appellants have interpreted its ruling

and Adams. According to Appellants, those decisions

mean that an American court applying American law

is barred from finding that it has personal jurisdiction

over Cape.

One of the Appellants made this

breathtaking statement in its reply brief: “[T]he

Adams courts declined to recognize the Texas

judgment for a reason that United States courts

themselves would require: the absence of personal

jurisdiction over Cape.” Of course, the Texas federal

court implicitly found it had personal jurisdiction over

Cape. The EWHC was careful to note that Adams had

stated that in deciding whether a foreign court has

jurisdiction over a party sufficient to warrant

enforcement of the foreign judgment in E ngland,

E nglish courts “will apply not the law of the foreign

court itself but our own rules of private international

law.” The E WHC, further quoting Adams, observed

that E nglish principles of private international law

“will by no means necessarily coincide with the rules

applied by the foreign court itself in governing its own

jurisdiction . . . our courts are generally not concerned

with these rules.”

Appellants maintain no South Carolina or other

court can go behind Adams and attribute the activities

of the subsidiary to Cape or its successors or affiliates,

including Appellants. Appellants go so far as to argue

that Adams resolved for all time that Cape has never

20a

been “present” in the United States for the purpose of

personal jurisdiction. We cannot imagine a more

misguided view of comity than what Appellants are

proposing: that the issue of when the court of one

sovereign nation may exert personal jurisdiction over

a party should be decided by the laws of another.

Although the E WHC declined to grant comity to

the South Carolina receivership order, we suspect it

would be horrified to learn that the Appellants here

are asking us to declare that its ruling displaced the

well-developed South Carolina and federal common,

statutory, and constitutional law governing personal

jurisdiction in South Carolina courts. That was never

the E WHC’s stated intention, and no fair reading of

its ruling could lead to such an incredible conclusion.

We therefore decline Appellants’ request, and by

doing so, to paraphrase Benjamin Franklin, save the

EWHC from such mortification. 3 John Adams, Diary

and Autobiography of John Adams 422 (Butterfield,

et. al. eds., 1961).

We brush aside as unworthy of comment

Appellants’ fanciful argument that our Reception

Statute, section 14-1-50 of the South Carolina Code

(1976), requires us to apply Adams and the EWHC’s

rulings as if they were the binding law of this State.

ii.

Estoppel and Res Judicata

We now turn to Appellants’ various estoppel and

res judicata arguments. All of these arguments are of

a common thread: that the Receiver should be barred

from taking any position inconsistent with the Adams

decision, including its finding that under English law

Cape’s American subsidiary was not its alter-ego and

the subsidiary’s contacts could not be attributed to

Cape for purposes of determining personal

21a

jurisdiction. The EWHC scoffed at CIHL’s attempt to

use this same theory to apply estoppel against the

Receiver. (Coincidentally, as far as we can tell, this is

the only portion of the EWHC’s ruling that Appellants

do not believe binds us.) Like the E WHC, but for

different reasons, we reject Appellants’ various

estoppel and res judicata arguments.

Appellants’ estoppel and res judicata arguments

overlook the real import of Adams and distort the

doctrines. Res judicata, or claim preclusion, bars a

later suit by the same party when there has been a

previous adjudication by a court of the same subject

matter at issue in the later suit. Hughes on behalf of

Est. of Hughes v. Bank of Am. Nat’l Ass’n, 442 S.C.

113, 130–31, 898 S.E.2d 102, 111 (2024). Res judicata

does not apply because the subject matter of the

Adams and E WHC decisions was enforcement of a

foreign judgment under principles of E nglish law.

The same goes for Appellants’ collateral estoppel (also

known as issue preclusion) arguments. Collateral

estoppel “bars the relitigation of only the particular

issues that were actually litigated and decided in the

prior suit.” Catawba Indian Nation v. State, 407 S.C.

526, 537, 756 S.E .2d 900, 906 (2014). All Adams

decided was that a Texas federal court judgment was

not enforceable against Cape in the United Kingdom.

The conclusions of Adams may be preclusive in later

United Kingdom litigation, but they pack no punch

under the state or federal law of a court in this

country. In essence, Appellants ask us to treat the

judgment of a Texas federal court that applied United

States law as having been overruled by a later

decision of a United Kingdom court applying English

law. Whether a South Carolina court can enforce

personal jurisdiction over a party is a matter

22a

determined solely by South Carolina and federal law,

not the law of a foreign country.

Appellants also urge that Adams bars the

Receiver’s third-party claims here because it held that

Cape’s American subsidiary was not its “alter-ego”

and could not be otherwise used to pierce Cape’s

corporate shield. Once again, Appellants’ aim is off.

As far as we know, no court has considered the merits

of the claims the Receiver makes in his third-party

complaint. These claims allege that Appellants and

other third-party defendants–not Cape’s long gone

American subsidiary that was the sole focus of

Adams–are alter egos of Cape. Whether they are may

be a matter to be decided under South Carolina law,

or the laws of E ngland, France, or another

jurisdiction. See Pertuis v. Front Roe Restaurants,

Inc., 423 S.C. 640, 650, 817 S.E.2d 273, 278 (2018).

Although Appellants claim the Receiver is bound

by the positions Cape took in Adams and has since

taken, when it comes to a Receiver, estoppel does not

always work in the way Appellants imagine.

Although a Receiver “stands in the shoes” of the party,

he is not always bound by the party’s previous actions.

This is true when it is alleged the party’s previous

transfers or activities were fraudulent. Clark, supra,

at § 802. One need not have a wide imagination to

understand why. See Scholes v. Lehmann, 56 F.3d

750, 754–55 (7th Cir. 1995) (explaining why a receiver

for a corporation is not always subject to equitable

defenses that would otherwise apply against the

corporation).

23a

III.

A. The Proper Scope of

Receivership over Cape

the

Pre-Judgment

Appellants maintain South Carolina law only

allows a receivership over a foreign corporation if

there is specific, identified property of the corporation

within this state. According to Appellants, this is

made plain by section 15-65-10 of the South Carolina

Code (2005), which provides in part:

A receiver may be appointed by a judge of the

circuit court, either in or out of court: . . .

(4) When a corporation has been dissolved, is

insolvent or in imminent danger of insolvency

or has forfeited its corporate rights, and, in

like cases, of the property within this State of

foreign corporations; and

(5) In such other cases as are provided by law

or may be in accordance with the existing

practice, except as otherwise provided in this

Code.

Pushing this point further, Appellants declare

that, outside of its in-state tangible property, “a

foreign corporation can never be in receivership”

under South Carolina law.

Appellants list no

authority for this sweeping statement because there

is none. And a quick glance at § 15-65-10 proves that

foreign corporations are not exempt from the reach of

the receivership statute.

The Confirmation Order relied on sections (4) and

(5) to justify the receivership appointment. We

conclude the trial court’s ruling that Cape was in

danger of insolvency lacks adequate evidentiary

support, so we reverse that part of the Confirmation

24a

Order that relied on section (4) to justify appointment

of the Receiver.

We hold the trial court was well within its

discretion in ruling that section (5) authorized the

appointment of a pre-judgment receiver over Cape.

“Our law allows appointment of a Receiver in several

circumstances, including ‘[i]n such other cases as are

provided by law or may be in accordance with the

existing practice, except as otherwise provided in this

Code.’” Welch, 445 S.C. at 659, 916 S.E .2d at 330

(quoting § 15-65-10(5)). This language was modeled

on the 1848 New York Civil Code. “At common law,

an equity court had the inherent power to appoint a

Receiver before judgment.” Id. “A Receiver may only

be appointed before judgment in the rarest of cases,

when ‘there is the strongest reason to believe that the

plaintiff is entitled to the relief demanded in his

complaint, and there is danger that the property will

be materially injured before the case can be

determined.’” Id. (quoting Richland Cnty. v. S.C.

Dep’t of Revenue, 422 S.C. 292, 313, 811 S.E.2d 758,

769 (2018)). “This extreme power may only be used in

extreme cases, such as where a defendant’s conduct

demonstrates it is fraudulently concealing or

disposing of assets that may be responsive to a later

judgment.” Id. The extreme power of imposing a

receivership before judgment can be used where the

defendant engages in what our decisions have coined,

a bit oxymoronically, “moral fraud,” defined as “a

conscious intent to defeat, delay, or hinder his

creditors in the collection of their debts.” VirginiaCarolina Chem. Co. v. Hunter, 84 S.C. 214, 200–21, 66

S.E. 177, 179 (1909) (emphasis added). This phrase–

”to defeat, delay, or hinder”–echoes the ancient words

of the Statute of Elizabeth, which prohibits fraudulent

transfers. S.C. Code Ann. § 27-23-10 (2007).

25a

The trial court had the discretion to appoint a

receiver pursuant to § 15-65-10(5) because Cape has

engaged in decades of moral fraud in asbestos

litigation, including in this case. As in Welch, Cape’s

conduct in this case “demonstrates it is seeking to

evade its responsibilities as a civil litigant” by

refusing to participate at all in Park and this case, or

any other United States asbestos cases. Welch, 445

S.C. at 331, 916 S.E.2d at 661. The record shows Cape

has resolved as a matter of corporate policy to not

engage in United States asbestos litigation because it

could not “foresee any court . . . enforcing a judgment

which would have enormous financial . . .

repercussions, when we really cannot be said to have

a moral responsibility and are simply victims of the

US product liability cult.”

(emphasis added).

Appellants contend Cape’s corporate machinations

are legitimate tactics under E nglish corporate law

and have been blessed by E nglish courts. But what

may be legitimate corporate structuring in a

company’s home country may still be deemed

illegitimate by the liability laws of a foreign country

where that company has caused harm.

Cape’s intent to defeat and hinder the Tibbs and

Park plaintiffs has gone well beyond the legitimate

efforts of a party defending itself by the rights granted

by civil procedure. Two episodes bear this out. The

first occurred when the Receiver subpoenaed Lloyds

of London to determine if it had issued any relevant

insurance policies to CIHL. Learning of the Receiver’s

contact, Ran Oren, the sole director of CIHL, wrote

Lloyds on Appellant Altrad’s letterhead and

instructed Lloyds not to obey the subpoena based on

the E WHC’s injunction against the Receiver. Mr.

Oren may have felt he needed to protect CIHL’s

interests by alerting Lloyds of the injunction, but we

26a

think it unlikely he would have written the letter in

the way he did if no insurance existed. A bit dog

barks.

The second episode involved a mutual release

CIHL, the Altrad Appellants, and some of the other

third-party defendants in Tibbs entered into after the

Receiver had been appointed. In the release, the

parties each gave up any claim they may have against

the other related to this case or any other asbestos

case in the United States. The release was a brazen

attempt to “defeat, delay, or hinder” the Tibbs and

other alleged asbestos victims in this country.

Virginia-Carolina Chem. Co., 84 S.C. at 200–21, 66

S.E. at 179.

Both episodes were an unlawful interference with

property under the control of the court and the

Receiver. See Ex Parte Tyler, 149 U.S. 164, 181 (1893)

(“No rule is better settled than that, when a court has

appointed a receiver, his possession is the possession

of the court, for the benefit of the parties to the suit

and all concerned, and cannot be disturbed without

the leave of the court, and that if any person, without

leave, intentionally interferes with such possession,

he necessarily commits a contempt of court, and is

liable to punishment therefor.”); Clark, supra, at § 253

(explaining that appointment of a receiver “prevents

the defendant from dealing with the chose in action to

the prejudice of the receiver, and of the res in control

and possession of the court”); 75 C.J.S. Receivers § 95

(March 2026 Update).

We agree, however, with Appellants that Cape’s

long corporate history of selling asbestos in the United

States knowing the danger it posed is not the type of

moral fraud relevant to establishing a receivership, as

it is not evidence of actions by Cape to “defeat, delay,

27a

or hinder” the Tibbs or others from pursuing their

claims. Virginia-Carolina Chem. Co., 84 S.C. at 200–

21, 66 S.E. at 179.

B. Modification of the Confirmation Order

The Confirmation Order amended the scope of the

Receivership Order, deleting the paragraph that gave

the Receiver such sweeping powers over Cape’s

business. However, it left intact the broad authority

granted to the Receiver to “administer all assets of

Cape, accept service on behalf of Cape, engage counsel

on behalf of Cape, and take any and all steps

necessary to protect the interests of Cape whatever

they may be.” March 16, 2023 Park Appointment

Order at 1.

A pre-judgement receiver differs from a postjudgment receiver in many ways. While the order

appointing a general receiver after judgment may

authorize the receiver to act on a corporation’s behalf

in other matters and lawsuits in which he has not

been appointed, a pre-judgment receiver is limited to

conducting activities in and connected directly to the

pending lawsuit. While we affirm the appointment of

the pre-judgment receiver for Cape under the

circumstances here, we modify the Confirmation

Order and hold the pre-judgment receiver may only

operate to collect insurance assets and pursue such

legal and equitable claims the corporation may have

that can result in the receipt of assets responsive to

the Tibbs’ pending claims.

Allowing the pre-judgment receiver to operate in

this limited scope does not impair Cape’s right as a

foreign corporation to conduct its internal affairs free

from interference by a foreign court. The internal

affairs of Cape–its relations between its officers,

28a

directors, shareholders, and agents–are not affected

by the Confirmation Order as we have modified it. See

Pertuis, 423 S.C. at 649–50, 817 S.E .2d at 278

(defining internal affairs).

We have held that an action to pierce the

corporate veil or determine if a single business

enterprise/amalgamation exists does not implicate

the internal affairs doctrine. See id. at 650, 817

S.E .2d at 278 (the “threshold amalgamation issue is

not as much a question of the inner-workings of

foreign corporations as it is an assessment of whether

these entities actually operate as a single business

enterprise, and thus should be treated as a single

entity”). Other jurisdictions agree. See, e.g., KaiserFrancis Oil Co. v. Deutsche Oel & Gas, S.A., 566 P.3d

252, 264–66 (Alaska 2025) (citing Pertuis and

collecting cases). We leave it to the trial court to

consider Pertuis and determine whether the receiver’s

third-party claims should be controlled by South

Carolina law or the law of the jurisdiction of Cape’s

incorporation or some other jurisdiction.

Appellants insist that litigation decisions, such as

whether and how to sue, defend a lawsuit, or accept

service are solely for Cape’s board of directors and

cannot be lawfully made by a receiver. If Appellants

were right, then a receiver–even one appointed after

judgment–could never act in the lawsuit in which he

has been appointed. And if litigation decisions are

exclusively for Cape’s board, one wonders how

Appellants can make them on Cape’s behalf.

Appellants’ argument highlights that Cape is the

architect of its own predicament. It has never

appeared to defend its interests, and to argue that the

very conduct that made a receivership necessary now

somehow requires its reversal proves only that irony

29a

lives. Although in future cases a pre-judgment

receiver should not be authorized to accept service in

other lawsuits, Cape has had ample opportunity to

appear in this case. Its pursuit of the injunction order

in E ngland and entering into the release

demonstrates it is acutely aware of and has actual

notice of the claims against it. In fact, the release

Cape signed recited that CIHL and Cape plc were

“separately named defendants” in the Park action and

that Cape plc has also been sued in the Tibbs case. We

note too that the very authority that Appellants claim

states the rule that a corporation’s litigation decisions

are solely for the corporation’s board carries a

qualification Appellants ignore: that the rule only

applies when the board is disinterested and not

burdened by a conflict of interest. See Star v. TI

Oldfield Dev., LLC, 962 F.3d 117, 130–33 (4th Cir.

2020). And Star did not involve a corporation in

receivership.

Clinging to their claim that a South Carolina

court has no authority to appoint a receiver over an

out-of-state corporation, Appellants ask us to follow In

Re Whittaker, Clark & Daniels, Inc., 2026 WL

1131929 (3d Cir. Apr. 26, 2026), which considered

whether a South Carolina post-judgment receiver for

a New Jersey corporation could prevent the

corporation from filing bankruptcy. The Third Circuit

held the receiver could not prevent the filing because

he had not sought to enforce the receivership order in

New Jersey or petitioned to be appointed an ancillary

receiver in that state. Because he did not do so, the

corporation’s board retained the sole power to file

bankruptcy.

However, the Third Circuit

acknowledged “New Jersey law permits its courts to

recognize foreign receivership orders and appoint an

ancillary receiver to aid in the execution of foreign

30a

judgments, including by enjoining the corporation and

its board from taking specific actions and exercising

specific powers.”

The Third Circuit also emphasized the

receivership order did not by its terms give the

receiver control over the corporation’s internal affairs.

Although that resolved the issue, the Third Circuit

went on to observe that the full faith and credit clause

may not require a state to recognize and enforce

another state court judgment purporting to exercise

authority over the internal affairs of a foreign

corporation.

Whittaker therefore dealt with a much narrower

and far different question than the ones before us

involving CIHL. Nothing in Whitaker’s holding or its

dicta touches the question of whether South Carolina

law allows a South Carolina court to appoint a prejudgment receiver over a foreign corporation for the

purpose of pursuing potential insurance assets and

certain claims. As we have held, these pursuits do not

tread on the corporation’s internal affairs.

C. Bond

Appellants insist that both the Park Appointment

Order and the Confirmation Order must be reversed

because they failed to set a bond as required by section

15-65-60 of the South Carolina Code (2005). We

disagree.

First, Appellants have no standing to enforce the

bond provision because they do not possess or have the

right to possess the property covered by the

Confirmation Order as we have modified it, i.e. Cape’s

insurance assets and third-party claims. See Ex parte

Rowley, 200 S.C. 174, 186, 20 S.E .2d 383, 384, 387

(1942) (holding one not in possession of subject

31a

property in receivership may not challenge lack of

bond). Unless, of course, Appellants are admitting

they and Cape are in fact alter-egos or a single

business enterprise.

Second, the lack of a bond does not render a

receivership order void. As we earlier noted, a void

order is one made by a court without jurisdiction. Our

earlier cases had a broader view of what makes a

receivership order void. See Truesdell v. Johnson, 144

S.C. 188, 204, 142 S.E. 343, 348 (1928) (providing the

failure to have a clause in the appointment order

fixing the value of the property “is mandatory, and

without such clause the order is void”). The trial

court’s failure to set a bond in a receivership case does

not affect the court’s subject matter jurisdiction over

the issues in the case or its personal jurisdiction over

the parties. Thomas & Howard Co., 318 S.C. at 291,

457 S.E.2d at 343 (“Generally, a judgment is void only

if a court acts without jurisdiction. Irregularities

which do not involve jurisdiction do not render a

judgment void.” (internal citations omitted)). The

failure to set a bond does not render an order void.

Rather it may–though not always as we discuss

below–render an order invalid or, put another way,

voidable. See Innovative Waste Mgmt. Inc. v. Crest

Energy Partners GP, LLC, 423 S.C. 611, 614, 815

S.E.2d 780, 781 (Ct. App. 2018) (“A voidable judgment

is nothing more than one made in error by a court with

jurisdiction . . . .”). Accordingly, we clarify Truesdell

and hold that a receivership order that fails to set a

bond is not void.

It is true § 15-65-60 states that a bond must be

set. When receiverships began, they were designed to

protect property such as rents, crops, livestock, or

other personal property from being dissipated to the

32a

disadvantage of the owner’s looming creditors. These

items were tangible, had intrinsic market value, and

were often portable. A bond is designed to cover the

owner’s loss if it turns out the receivership wrongfully

deprived the owner of the use (and sometimes the

literal fruits) of his property. This dynamic is not in

play here. Here, the Receiver is authorized to seek

and collect only two things: insurance assets and

whatever he may collect by his third-party actions.

The insurance assets are worthless to anyone but

Cape and any potential judgment creditor. The value

of the third-party claims need not be bonded, for if the

Receiver obtains judgment based on them, it will

benefit Cape. We therefore hold there is no rational

need for a bond under the circumstances here. “The

reason for a rule must control the application of the

rule.” S.C. Ins. Co. v. James C. Greene & Co., 290 S.C.

171, 188, 348 S.E.2d 617, 626 (Ct. App. 1986).

D. Release

As we have held, the nature and timing of the

release is evidence of moral fraud justifying the

appointment of a pre-judgment receiver. We do not,

however, otherwise rule on the effect or validity of the

release. A release is an affirmative defense that must

be pled. Rule 8, SCRCP. The trial court must rule on

the merits of this defense, and nothing in our decision

here today may be construed as affecting the merits.

IV.

A. The Trial Court’s May 23, 2024 Sanctions Order

in Tibbs

We address one final item Appellants raise on

appeal, even though it does not relate directly to the

Receivership appointment. Appellants believe they

have spotted yet another void order by the trial court

33a

or, in their words, a “jural nullity”: the trial court’s

May 23, 2024 order that granted the Receiver’s motion

for sanctions and imposed adverse inferences against

Appellants. Appellants claim this order is void

because the trial court had no jurisdiction over the

case because Appellants’ appeals of several earlier

orders were still pending.

It appears Appellants had three appeals pending

when the May 23, 2024 order was entered: two from

the December 6, 2023 order denying Appellants’

motions to dismiss for lack of personal jurisdiction and

to dissolve the receivership, and one from the March

12, 2024 order granting plaintiff’s motions to compel

discovery. As Appellants well know, Rule 205,

SCACR, by its terms permits a trial court to “proceed[]

with matters not affected by the appeal.” Appellants’

pending appeals from the order denying the motion to

dismiss and the motion to dissolve the receivership

did not affect the matters inherent in the motion for

sanctions. Consequently, the trial court retained the

jurisdiction to rule upon it. See Cousar v. New London

Eng’g Co., 306 S.C. 37, 40, 410 S.E.2d 243, 245 (1991)

(providing “[i]n cases on appeal, the South Carolina

Rules of Court provide for the trial court to retain

jurisdiction over matters not affected by the appeal,”

and thus, the trial court’s “retention of jurisdiction

over discovery in this case was not an abuse of

discretion” where the appellants had appealed the

denial of their motion to amend their pleadings).

Appellants’ pending appeal from the March 12,

2024 order granting the motion to compel discovery

did, however, deal with the same issue that the May

23, 2024 order addressed: discovery. Yet, because

Appellants’ appeal from the March 12, 2024 order was

dismissed as interlocutory, the appeal did not divest

34a

the trial court of jurisdiction to enter the May 23, 2024

order. See, e.g., United States v. Green, 882 F.2d 999,

1001 (5th Cir. 1989) (“Notice of appeal from a nonappealable order, however, does not render void for

lack of jurisdiction acts of the trial court taken in the

interval between filing of the notice and dismissal of

the appeal.”); Euziere v. United States, 266 F.2d 88, 91

(10th Cir. 1959) (providing “all of the cases hold[ing]

that an appeal divests the trial court of jurisdiction

over the case . . . presuppose[] that there is a valid

appeal from an appealable order,” but an attempt to

appeal from an order found unappealable by the

appellate court “remains just that, an attempt. It is a

nullity and does not invest the appellate court with

jurisdiction, and consequently does not divest the trial

court of its jurisdiction”), cert. granted, judgment

vacated on other grounds, 364 U.S. 282 (1960));

Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir. 1972)

(“While filing a notice of appeal generally deprives the

district court of jurisdiction, where the notice is

manifestly deficient, e.g. by reason of reference to a

nonappealable order, the district court may disregard

it and proceed with the case. Otherwise, a litigant

could temporarily deprive a court of jurisdiction at

any and every critical juncture.” (internal citations

omitted)).

B. Appellants’ Supplemental Citations

Finally, we are disturbed by the Appellants’

misuse of Rule 208(b)(7), SCACR, which allows a

party to provide the Court with “supplemental

citations.” Since oral argument, Appellants have filed

three Notices of Supplemental Authority. All are

packed with argument, even though the rule flatly

states the notice is only allowed to refer to the matter

“to which the citations pertain” and “shall, without

35a

argument, state the reason for the supplemental

citations.” Rule 208(b)(7), SCACR (emphasis added).

Though the notices include some proper supplemental

citations, they teem with improper argument

(repeating points Appellants have made many times

before) and offer irrelevant updates about proceedings

pending in other trial courts. After Tibbs’ counsel

pointed out that argument was not permitted under

the Rule, Appellants responded with even more

argument. And all of this occurred after our June 26,

2025 order warning that future frivolous filings and

inappropriate

behavior

would

have

serious

consequences. Appellants’ misuse of the Rule will be

considered at a later date alongside the pending

motions for sanctions.

V.

Conclusion

We conclude the Confirmation order is not void,

and we affirm it as we have modified it today. We

reverse the portion of the Order that questioned

CIHL’s solvency.

AFFIRMED AS MODIFIED IN PART AND

REVERSED IN PART.

KITTREDGE, C.J., FEW, JAMES, JJ., and Acting

Justice Courtney Clyburn Pope, concur.

36a

APPENDIX B

The Supreme Court of South Carolina

John A. Tibbs and Margaret B. Tibbs, Respondents,

v.

3M Company; 4520 Corp., Inc.; A.O. Smith

Corporation; A. W. Chesterton Company; ABB Inc.;

Air & Liquid Systems Corporation; AIW-2010 Wind

Down Corp.; Amentum Environment & Energy,

Inc.; Anchor/Darling Valve Company; Armstrong

International, Inc.; Asbestos Corporation Limited

ASCO, L.P.; Atlas Asbestos Co.; Atlas Turner, Inc.;

AWT Air Company, Inc.; Bahnson, Inc.; Banner

Industries International, Inc.; Banner Industries,

LLC; Banner Industries of N.E., Inc.; Barretts

Minerals, Inc.; Beaty Investments, Inc.; Bechtel

Corporation; The Bonitz Company; Brand

Insulations, Inc.; BW/IP, Inc.; Canvas CT, LLC;

Cape PLC; Carboline Company; CB&I Laurens,

Inc.; Cleaver-Brooks, Inc.; Consolidated Electrical

Distributors, Inc.; Copes-Vulcan, Inc.; Covil

Corporation; Crane Instrumentation & Sampling,

Inc.; Crosby Valve, LLC; Daniel International

Corporation; Davis Mechanical Contractors, Inc.;

Dezurik, Inc.; Duke Energy Carolinas, LLC; Duke

Energy Corporation; Eaton Corporation; Ellington

Insulation Company, Inc.; Emerson Electric Co.;

Fisher Controls International, LLC; Flame

Refractories, Inc.; Flowserve Corporation;

Flowserve US, Inc.; Fluor Constructors

International; Fluor Constructors International,

Inc.; Fluor Daniel Services; Fluor Enterprises, Inc.;

FMC Corporation; Foster Wheeler Energy

Corporation; Gardner Denver Nash, LLC; General

37a

Boiler Casing Company, Inc.; General Cable

Corporation; General Cable Industries, Inc.;

General Electric Company; Gould Electronics, Inc.;

Goulds Pumps, Incorporated; Goulds Pumps, LLC;

Great Barrier Insulation Co.; Grinnell, LLC; Hajoca

Corporation; Howden North America, Inc.; HPC

Industrial Services, LLC; IMO Industries, Inc.; ITT,

LLC; Joy Global Underground Mining, LLC; K-Mac

Services, Incorporated; Metropolitan Life Insurance

Company; Mine Safety Appliances Company, LLC;

MP Supply, Inc.; The Nash Engineering Company;

Occidental Chemical Corporation; Paramount

Global; Patterson Pump Company; PECW Holding

Company; Pfizer, Inc.; Piedmont Insulation, Inc.;

Plastics Engineering Company; Presnell Insulation,

Co., Inc.; Redco Corporation; Riley Power, Inc.;

Rockwell Automation, Inc.; RSCC Wire & Cable,

LLC; Schneider Electric USA, Inc.; Sequoia

Ventures, Inc.; Spirax Sarco, Inc.; SPX Corporation;

Stafford Insulation Company; Standard Insulation

Company of N.C., Inc.; Starr Davis Company, Inc.;

Starr Davis Company of S.C., Inc.; Sterling Fluid

Systems (USA), LLC; TE Wire & Cable, LLC;

Thermo Electric Company, Inc.; Union Carbide

Corporation; Valves and Controls US, Inc.; Velan

Valve Corp.; Viking Pump, Inc; Vistra Intermediate

Company, LLC; The William Powell Company;

Wind Up, Ltd.; Yuba Heat Transfer LLC; and Zurn

Industries, LLC, Defendants,

And Cape PLC, individually and as successor in

interest to Cape Asbestos Company Limited, by and

through its duly appointed Receiver Peter D.

Protopapas, Respondent,

v.

38a

Anglo American PLC, individually and as successor

in interest to Anglo American Corporation of South

Africa, Ltd.; DeBeers, PLC, individually and as

successor in interest to DeBeers S.A.; DeBeers

Centenary AG; DeBeers Consolidated Mines, Ltd.,

n/k/a DeBeers Consolidated Mines Proprietary,

Ltd.; DeBeers UK, Ltd.; DeBeers Jewelers, Ltd.;

DeBeers Jewelers US, Inc.; Anglo American US

Holdings, Inc.; Element Six US Corp.; Element Six

Technologies US Corp.; Element Six Technologies

(OR) Corp.; First Mode Holdings, Inc.; Platinum

Guild International (USA) Jewelry, Inc.; Lightbox

Jewelry, Inc.; Forevermark US, Inc.; Anglo

American Crop Nutrients (USA), LLC; Charter

Consolidated, Ltd.; ESAB Corporation; Central

Mining & Investment Corporation, Ltd.; Cape

Holdco, Ltd.; The Law Debenture Corporation, PLC;

Cape Industrial Services Group, Ltd.; Mohed

Altrad; Altrad UK, Ltd.; Cape UK Holdings Newco,

Ltd.; Altrad Services, Ltd., f/k/a Cape Industrial

Services Ltd.; Altrad Investment Authority S.A.S.;

Sparrows Offshore Group, Ltd.; Hawk Bidco US,

Inc.; Arranco US, LLC; Sparrows Offshore, LLC;

The Sparrows Group, LLC, Third-Party

Defendants,

Of Which Charter Consolidated, Ltd.; ESAB

Corporation; Central Mining & Investment

Corporation, Ltd.; Mohed Altrad; and Altrad

Investment Authority S.A.S., are the Appellants.

Appellate Case No. 2025-002104

39a

ORDER

After careful consideration of the petition for

rehearing, the Court is unable to discover that any

material fact or principle of law has been either

overlooked or disregarded, and hence, there is no basis

for granting a rehearing. Accordingly, the petition for

rehearing is denied, and the matter is remanded to

the circuit court. However, notwithstanding the

issuance of the remittitur, this Court retains

jurisdiction over the pending motions for sanctions

that have been filed with this Court and any other

sanctions issues related to this appeal.

/s/ John W. Kittredge

C.J.

/s/ George C. James, Jr.

J.

/s/ D. Garrison Hill

J.

/s/ Courtney Clyburn Pope

A.J.

Columbia, South Carolina

August 4, 2026

cc:

Matthew Todd Carroll, Esquire

Kevin A. Hall, Esquire

Mary Elizabeth O’Neill, Esquire

A. Victor Rawl, Jr., Esquire

William James Blount, Esquire Jonathan

M. Robinson, Esquire Shanon N. Peake,

Esquire

John Thomas Lay, Jr., Esquire

Gray Thomas Culbreath, Esquire

Lindsay Anne Joyner, Esquire

Eleanor Lasseigne Jones, Esquire Troy

S. Brown, Esquire

40a

Lauren McCulloch Semlinger, Esquire

Paul A. Scrudato, Esquire

Theile Branham McVey, Esquire

John D. Kassel, Esquire

Jamie Rae Rutkoski, Esquire

Charles William Branham, III, Esquire

David Christopher Humen, Esquire

George Murrell Smith, Jr., Esquire

James Ledlie, Esquire

Kush A. Shukla, Esquire

Joshua Drew Cagle, Esquire

Kenneth J. Wilson, Esquire

Jenna Brooke Kiziah McGee, Esquire

Wesley Brian Sawyer, Esquire Thomas

Ashley Limehouse, Jr., Esquire William

Camden Lewis, Esquire

Terry E. Richardson, Jr., Esquire

Terry E. Richardson, Jr., Esquire

Robert W. Cowan, Esq, Esquire

The Honorable Jean Hoefer Toal

41a

APPENDIX C

The Supreme Court of South Carolina

John A. Tibbs and Margaret B. Tibbs,

Respondents,

v.

3M Company; 4520 Corp., Inc.; A.O. Smith

Corporation; A. W. Chesterton Company; ABB Inc.;

Air & Liquid Systems Corporation; AIW-2010

Wind Down Corp.; Amentum Environment &

Energy, Inc.; Anchor/Darling Valve Company;

Armstrong International, Inc.; Asbestos

Corporation Limited ASCO, L.P.; Atlas Asbestos

Co.; Atlas Turner, Inc.; AWT Air Company, Inc.;

Bahnson, Inc.; Banner Industries International,

Inc.; Banner Industries, LLC; Banner Industries of

N.E., Inc.; Barretts Minerals, Inc.; Beaty

Investments, Inc.; Bechtel Corporation; The Bonitz

Company; Brand Insulations, Inc.; BW/IP, Inc.;

Canvas CT, LLC; Cape PLC; Carboline Company;

CB&I Laurens, Inc.; Cleaver-Brooks, Inc.;

Consolidated Electrical Distributors, Inc.; CopesVulcan, Inc.; Covil Corporation; Crane

Instrumentation & Sampling, Inc.; Crosby Valve,

LLC; Daniel International Corporation; Davis

Mechanical Contractors, Inc.; Dezurik, Inc.; Duke

Energy Carolinas, LLC; Duke Energy Corporation;

Eaton Corporation; Ellington Insulation Company,

Inc.; Emerson Electric Co.; Fisher Controls

International, LLC; Flame Refractories, Inc.;

Flowserve Corporation; Flowserve US, Inc.; Fluor

Constructors International; Fluor Constructors

International, Inc.; Fluor Daniel Services; Fluor

Enterprises, Inc.; FMC Corporation; Foster

42a

Wheeler Energy Corporation; Gardner Denver

Nash, LLC; General Boiler Casing Company, Inc.;

General Cable Corporation; General Cable

Industries, Inc.; General Electric Company; Gould

Electronics, Inc.; Goulds Pumps, Incorporated;

Goulds Pumps, LLC; Great Barrier Insulation Co.;

Grinnell, LLC; Hajoca Corporation; Howden North

America, Inc.; HPC Industrial Services, LLC; IMO

Industries, Inc.; ITT, LLC; Joy Global

Underground Mining, LLC; K-Mac Services,

Incorporated; Metropolitan Life Insurance

Company; Mine Safety Appliances Company, LLC;

MP Supply, Inc.; The Nash Engineering Company;

Occidental Chemical Corporation; Paramount

Global; Patterson Pump Company; PECW Holding

Company; Pfizer, Inc.; Piedmont Insulation, Inc.;

Plastics Engineering Company; Presnell

Insulation, Co., Inc.; Redco Corporation; Riley

Power, Inc.; Rockwell Automation, Inc.; RSCC

Wire & Cable, LLC; Schneider Electric USA, Inc.;

Sequoia Ventures, Inc.; Spirax Sarco, Inc.; SPX

Corporation; Stafford Insulation Company;

Standard Insulation Company of N.C., Inc.; Starr

Davis Company, Inc.; Starr Davis Company of

S.C., Inc.; Sterling Fluid Systems (USA), LLC; TE

Wire & Cable, LLC; Thermo Electric Company,

Inc.; Union Carbide Corporation; Valves and

Controls US, Inc.; Velan Valve Corp.; Viking

Pump, Inc; Vistra Intermediate Company, LLC;

The William Powell Company; Wind Up, Ltd.;

Yuba Heat Transfer LLC; and Zurn Industries,

LLC, Defendants,

And Cape PLC, individually and as successor in

interest to Cape Asbestos Company Limited, by

43a

and through its duly appointed Receiver Peter D.

Protopapas, Respondent,

v.

Anglo American PLC, individually and as

successor in interest to Anglo American

Corporation of South Africa, Ltd.; DeBeers, PLC,

individually and as successor in interest to

DeBeers S.A.; DeBeers Centenary AG; DeBeers

Consolidated Mines, Ltd., n/k/a DeBeers

Consolidated Mines Proprietary, Ltd.; DeBeers

UK, Ltd.; DeBeers Jewelers, Ltd.; DeBeers

Jewelers US, Inc.; Anglo American US Holdings,

Inc.; Element Six US Corp.; Element Six

Technologies US Corp.; Element Six Technologies

(OR) Corp.; First Mode Holdings, Inc.; Platinum

Guild International (USA) Jewelry, Inc.; Lightbox

Jewelry, Inc.; Forevermark US, Inc.; Anglo

American Crop Nutrients (USA), LLC; Charter

Consolidated, Ltd.; ESAB Corporation; Central

Mining & Investment Corporation, Ltd.; Cape

Holdco, Ltd.; The Law Debenture Corporation,

PLC; Cape Industrial Services Group, Ltd.; Mohed

Altrad; Altrad UK, Ltd.; Cape UK Holdings Newco,

Ltd.; Altrad Services, Ltd., f/ka Cape Industrial

Services Ltd.; Altrad Investment Authority S.A.S.;

Sparrows Offshore Group, Ltd.; Hawk Bidco US,

Inc.; Arranco US, LLC; Sparrows Offshore, LLC;

The Sparrows Group, LLC, Third-Party

Defendants,

Of Which Charter Consolidated, Ltd.; ESAB

Corporation; Central Mining & Investment

Corporation, Ltd.; Mohed Altrad; and Altrad

Investment Authority S.A.S., are the Appellants.

Appellate Case No. 2025-002104

44a

ORDER DENYING APPELLANTS’ MOTION TO

STAY OR RECALL THE REMITTITUR

Appellants’ motion to stay or recall the remittitur is

denied. We are troubled by Appellants’ motion, and we

will explain why we are concerned. But first, we want

to make clear what this case—and related cases—are

about. These asbestos-related claims seek damages

arising from workers suffering from mesothelioma as

a result of working decades ago in a South Carolina

facility or plant containing asbestos materials. The

worker or the worker’s estate attempts to identify

those responsible for the manufacture and placement

of the asbestos materials in the specific South

Carolina facility or plant. Given the latent nature of

the carcinogen, the manifestation of the disease and

resulting injuries are often delayed many years. The

claims present a host of factual and legal challenges,

including the proximate cause element of linking the

exposure to asbestos years ago to the manifestation of

the disease. It is an unchallenged principle of law that

an injured party may seek to recover damages in tort

from the party responsible for causing the injury.

With that brief description of the typical asbestosrelated claim, we now turn to the regrettable saga of

this case, which has been mired in obfuscation and

delay tactics.

For over 130 years, it has been settled law—law that

Appellants fail to cite or mention—that the remittitur

may only be recalled upon a very strong showing that

the remittitur was sent down through some mistake

or inadvertence by the appellate court. State v. Keels,

39 S.C. 553, 17 S.E. 802, 802-03 (1893); see also State

v. Barnes, 413 S.C. 1, 4, 774 S.E.2d 454, 456 (2015).

45a

Because Appellants cannot meet this legal standard

governing remittitur recall, they have ignored it

outright. Still, they proclaim that [a]ll of the

requirements for a stay or recall are met here.” Either

Appellants do not grasp the elementary procedural

effect of our issuance of the remittitur, or this is yet

another of their seemingly endless attempts at delay.

Once this Court issues the remittitur to the trial

court, we no longer have jurisdiction. Pringle v. Sizer,

3 S.C. 335, 337 (1872) (“Strictly speaking, after a

cause has been once remitted, this Court loses all

jurisdiction over it . . . .”). That includes jurisdiction to

grant a motion to stay. Our reservation of any

sanctions issues does not change this status.

This Court respects Appellants’ right to seek United

States Supreme Court certiorari review. We will not

sit idly by, however, and allow Appellants to

manipulate court rules and governing laws and

recharacterize our decisions in a brazen attempt to

manufacture a split of decisional authority or some

far-fetched international crisis. We therefore take this

opportunity to note several things about Appellants’

motion and their troubling previous conduct in this

case.

We can start with Appellants’ revisionist history of

the Third Circuit decision in In re Whittaker, Clark &

Daniels, Inc., 176 F.4th 241 (3d Cir. 2026). We have

already had to address Appellants’ attempted

distortion of Whittaker. Tibbs v. 3M Co., Op. No.

28337 (S.C. Sup. Ct. filed May 27, 2026) (Howard Adv.

Sh. No. 20 at 19, 3738). By any rational and objective

reading, the Whittaker decision rests largely on the

undisputed fact that the South Carolina Receiver

appointed in that case over a New Jersey corporation

had failed to seek an ancillary appointment by a New

46a

Jersey court. Whittaker, 176 F.4th at 257. Therefore,

the Third Circuit, in a thoughtful opinion by Judge

Ambro, reached the unremarkable conclusion that the

South Carolina Receivership Order could not prevent

the corporation from filing bankruptcy because an

out-of-state receiver that had not been appointed as

an ancillary receiver by the state court of the

corporation’s domicile could not control the internal

affairs of a foreign corporation. Id. No one would

quarrel with this general principle (although a related

general principle recognizes that a receivership order

can authorize a receiver to control the decision to file

bankruptcy on behalf of a domestic corporation.

McNeill & E hrmann, What Whittaker Clark &

Daniels Says About Receivership Proceedings and

Authority to File, 45 Am. Bankr. Inst. J. 20, 20 (2026)

(“A receivership order can divest corporate

management of its authority to file for bankruptcy in

two primary ways: explicitly or implicitly.”)).

Appellants, however, proceed to misrepresent this

principle and stretch it beyond recognition. In

Appellants’ view, the Third Circuit held in Whittaker

that the Constitution forbids state or federal court

receivers from making or interfering with any

litigation decisions of a foreign corporation, even if an

ancillary appointment order has been obtained in the

corporation’s “home” state. Appellants may believe

this argument, but no one else would.

Lost amidst Appellants’ arguments is the immutable

fact that this Court has narrowed the scope of the

Receivership. The initial grant of authority to the

Receiver in other asbestos litigation was challenged as

overly broad, and we agreed. Welch v. Advance Auto

Parts, Inc., 445 S.C. 640, 666-67, 916 S.E.2d 320, 33435 (2025). When that same challenge was made in this

47a

case, we adhered to our precedent limiting the scope

of the Receivership. We limited the scope of the

Receivership to cover just two matters: the pursuit of

any insurance coverage and the pursuit of alter

ego/amalgamation and other equitable claims that

may benefit the corporation. Specifically:

[W]e modif[ied] the Confirmation Order and

h[e]ld the pre-judgment receiver may only

operate to collect insurance assets and pursue

such legal and equitable claims the corporation

may have that can result in the receipt of assets

responsive to the Tibbs’ pending claims.

Allowing the pre judgment receiver to operate

in this limited scope does not impair Cape’s

right as a foreign corporation to conduct its

internal affairs free from interference by a

foreign court. The internal affairs of Cape—its

relations between its officers, directors,

shareholders, and agents—are not affected by

the Confirmation Order as we have modified it.

See Pertuis [v. Front Roe Rests., Inc.], 423 S.C.

[640,] 649-50, 817 S.E .2d [273,] 278 [(2018)]

(defining internal affairs).

We have held that an action to pierce the

corporate veil or determine if a single business

enterprise/amalgamation exists does not

implicate the internal affairs doctrine. See id.

at 650,817 S.E .2d at 278 (the “threshold

amalgamation issue is not as much a question

of the inner-workings of foreign corporations as

it is an assessment of whether these entities

actually operate as a single business

enterprise, and thus should be treated as a

single entity”). Other jurisdictions agree. See,

e.g., Kaiser-Francis Oil Co. v. Deutsche Oel &

48a

Gas, S.A., 566 P.3d 252,264-66 (Alaska 2025)

(citing Pertuis and collecting cases). We leave it

to the trial court to consider Pertuis and

determine whether the receiver’s third-party

claims should be controlled by South Carolina

law or the law of the jurisdiction of Cape’s

incorporation or some other jurisdiction.

Tibbs, Op. No. 28337, at 36-37. Notwithstanding our

clear limitation on the Receiver’s authority,

Appellants persist in advancing the patently false

narrative that this Court has sanctioned a rogue

Receivership with unlimited authority.

The “internal affairs” doctrine is a choice of law

principle. Our decision does not address much less

conflict with the Third Circuit’s ruling that a

corporation’s decision to file bankruptcy involves the

internal affairs doctrine. We acknowledged in Tibbs

the general principle that certain corporate litigation

decisions belong exclusively to the corporation’s

board, subject to certain exceptions, such as when the

board is operating under a conflict of interest.

Whittaker acknowledged another implicit exception: a

state court receiver may divest a domestic corporation

of its management authority and even dissolve the

corporation. Whittaker, 176 F.4th at 256 (“Thus, on

our reading, New Jersey law permits its courts to

recognize foreign receivership orders and appoint an

ancillary receiver to aid in the execution of foreign

judgments, including by enjoining the corporation and

its board from taking specific actions and exercising

specific powers.”).

It appears Appellants are relying on Whittaker to

claim the receivership order here violates the

Dormant Commerce Clause and Due Process. Even if

these arguments were preserved, we do not

49a

understand how the Dormant Commerce Clause

applies to a state court order regarding a company

incorporated and existing under the laws of another

country. As to Appellants’ Due Process arguments, we

are puzzled how they can press them at this late stage

and on behalf of a third party.

We note further that Appellants’ argument that the

receivership order violates what they contend is the

federal government’s exclusive jurisdiction over

foreign relations has never been presented to us

before and cannot be raised now. Nevertheless, we

take a moment to recognize how surreal Appellants’

position is. Appellants maintain that only the federal

government can conduct foreign affairs and regulate

foreign commerce. Therefore, no state court has

jurisdiction to affect the internal affairs of a

corporation located outside the United States.

Likewise, according to Appellants’ logic, the decisions

of the E nglish courts regarding the scope of a

corporation’s liability, the legal effect of corporate

transactions, and a corporation’s presence for

jurisdictional purposes are final and must be followed

by all courts of this country. The United States

Supreme Court has made clear that corporations

organized under the law of another country cannot

always use the internal affairs doctrine as a shield:

As a general matter, the law of the state of

incorporation normally determines issues

relating to the internal affairs of a

corporation. . . . Different conflicts principles

apply, however, where the rights of third

parties external to the corporation are at

issue. . . . To give conclusive effect to the law of

the chartering state in determining whether

the

separate

juridical

status

of

its

50a

instrumentality should be respected would

permit the state to violate with impunity the

rights of third parties under international law

while effectively insulating itself from liability

in foreign courts. We decline to permit such a

result.

First Nat’l City Bank v. Banco Para El Comercio

Exterior de Cuba, 462 U.S. 611, 621-22 (1983)

(footnotes omitted); see also VantagePoint Venture

Partners 1996 v. Examen, Inc., 871 A.2d 1108, 1113 n.

14 (Del. 2005) (“The internal affairs doctrine does not

apply where the rights of third parties external to the

corporation are at issue, e.g., contracts and torts.”); 19

C.J.S. Corporations § 965 (2026).

It should be remembered that Appellants make these

unmoored arguments not for themselves, but for Cape

Intermediate Holdings Limited (CIHL)—an active

English corporation that has never bothered to appear

in our courts and whose tactics to avoid legal

accountability have risen to the level of moral fraud.

It should be remembered that these Appellants—who

claim they have no legally relevant relationship with

CIHL or any Cape entity—have refused to participate

in even the most rudimentary jurisdictional discovery

to explore their insistence that they have no minimum

contacts with South Carolina. It should be

remembered that despite maintaining that the South

Carolina trial court has no personal jurisdiction over

them, these Appellants routinely file objections and

motions to dismiss and appear at hearings to make

extended arguments against the court’s rulings. It

should be remembered that these Appellants have

collectively filed over a dozen appeals from rulings of

the trial court, at least seven of which we have

dismissed as interlocutory and not immediately

51a

appealable. (There are eight more appeals the Court

of Appeals has dismissed as interlocutory). Among the

rulings Appellants have prematurely appealed

include a scheduling order and an order regarding the

pre-marking of trial exhibits, rulings that lawyers of

even the briefest experience would know are not

immediately appealable.

Appellants do not stop with misrepresenting and

misapplying our decision and the decision of the Third

Circuit. They make the stunning claim that they have

been victims of an “illegitimate proceeding” that has

caused them constitutional injury and irreparable

harm just like that in Axon Enterprise, Inc. v. FTC,

598 U.S. 175, 182 (2023). Axon involved claims that

certain federal agency enforcement action proceedings

violated the constitutional separation of powers

doctrine. Id. at 180. The Court held only that the

federal district court had jurisdiction to hear these

claims. Id. In deciding that Congress did not intend

for the agencies’ statutory review scheme to oust

federal district courts of jurisdiction to hear the

claimant’s constitutional claims, the Court reasoned

that the separation of powers argument could not be

meaningfully reviewed by the agency even though the

claimant could seek review of the agency ruling in the

federal court of appeals. Id. at 190-92. The Court

explained this was because the claimants were

alleging a core constitutional injury—being subjected

to “an illegitimate proceeding” conducted by “an

illegitimate decisionmaker.” Id. at 191.

There is no separation of powers claim here, nor any

notion that South Carolina courts are “illegitimate.”

Yet, that does not keep Appellants from ginning up

another reckless distortion of a court decision. Time

and time again, Appellants have wasted the scarce

52a

judicial resources of this Court, the Court of Appeals,

and the trial court.

/s/ John W. Kittredge

C.J.

/s/ George C. James, Jr.

J.

/s/ D. Garrison Hill

J.

/s/ Courtney Clyburn Pope

A.J.

Columbia, South Carolina

August 25, 2026

cc:

Matthew Todd Carroll

Kevin A. Hall

Mary Elizabeth O’Neill

A. Victor Rawl, Jr.

William James Blount

Jonathan M. Robinson

Shanon N. Peake

John Thomas Lay, Jr.

Gray Thomas Culbreath

Lindsay Anne Joyner

Eleanor Lasseigne Jones

Troy S. Brown

Lauren McCulloch Semlinger

Paul A. Scrudato

Theile Branham McVey

John D. Kassel

Jamie Rae Rutkoski

Charles William Branham, III

David Christopher Humen

George Murrell Smith, Jr.

James Ledlie

Kush A. Shukla

Joshua Drew Cagle

Kenneth J. Wilson

Jenna Brooke Kiziah McGee

53a

Wesley Brian Sawyer

Thomas Ashley Limehouse, Jr.

William Camden Lewis

Terry E. Richardson, Jr.

Robert W. Cowan, Esq

The Honorable Jean Hoefer Toal

The Honorable Jeanette W. McBride

54a

APPENDIX D

The Supreme Court of South Carolina

John A. Tibbs and Margaret B. Tibbs, Plaintiffs,

v.

3M Company; 4520 Corp., Inc.; A.O. Smith

Corporation; A.W. Chesterton Company; ABB, Inc.;

Air & Liquid Systems Corporation; Aiw-2010 Wind

Down Corp.; Amentum Environment & Energy,

Inc.; Anchor/Darling Valve Company; Armstrong

International, Inc.; Asbestos Corporation Limited;

ASCO, L.P.; Atlas Asbestos Co; Atlas Turner, Inc.;

AWT Air Company, Inc.; Bahnson, Inc.; Banner

Industries International, Inc.; Banner Industries,

LLC; Banner Industries of N.E., Inc.; Barretts

Minerals, Inc.; Beaty Investments, Inc.; Bechtel

Corporation; The Bonitz Company; Brand

Insulations, Inc.; BW/IP Inc.; Canvas Ct, LLC;

Cape PLC; Carboline Company; CB&I Laurens,

Inc.; Cleaver-Brooks, Inc.; Consolidated Electrical

Distributors, Inc.; Copes-Vulcan, Inc.; Covil

Corporation; Crane Instrumentation & Sampling,

Inc.; Crosby Valve, LLC; Daniel International

Corporation; Davis Mechanical Contractors, Inc.;

Dezurik, Inc.; Duke Energy Carolinas, LLC; Duke

Energy Corporation; Eaton Corporation; Ellington

Insulation Company, Inc.; Emerson Electric Co.;

Fisher Controls International LLC; Flame

Refractories, Inc.; Flowserve Corporation;

Flowserve US, Inc.; Fluor Constructors

International; Fluor Constructors International,

Inc.; Fluor Daniel Services Corporation; Fluor

Enterprises, Inc.; FMC Corporation; Foster

Wheeler Energy Corporation; Gardner Denver

55a

Nash, LLC; General Boiler Casing Company, Inc.;

General Cable Corporation; General Cable

Industries, Inc.; General Electric Company; Gould

Electronics, Inc.; Goulds Pumps, Incorporated;

Goulds Pumps LLC; Great Barrier Insulation Co.;

Grinnell LLC; Hajoca Corporation; Howden North

America, Inc.; HPC Industrial Services, LLC; IMO

Industries, Inc.; ITT LLC; Joy Global Underground

Mining LLC; K-Mac Services Incorporated;

Metropolitan Life Insurance Company; Mine

Safety Appliances Company, LLC; MP Supply,

Inc.; The Nash Engineering Company; Occidental

Chemical Corporation; Paramount Global;

Patterson Pump Company; PECW Holding

Company; Pfizer, Inc.; Piedmont Insulation, Inc.;

Plastics Engineering Company; Presnell Insulation

Co., Inc.; Redco Corporation; Riley Power Inc.;

Rockwell Automation, Inc.; RSCC Wire & Cable

LLC; Schneider Electric USA, Inc.; Sequoia

Ventures, Inc.; Spirax Sarco, Inc.; SPX

Corporation; Stafford Insulation Company;

Standard Insulation Company Of N.C., Inc.; Starr

Davis Company, Inc.; Starr Davis Company of

S.C., Inc.; Sterling Fluid Systems (USA) LLC; TE

Wire & Cable LLC; Thermo Electric Company,

Inc.; Union Carbide Corporation; Valves And

Controls Us, Inc.; Velan Valve Corp.; Viking Pump,

Inc.; Vistra Intermediate Company LLC; The

William Powell Company Wind Up, Ltd.; Yuba

Heat Transfer LLC; Zurn Industries, LLC,

Defendants,

and

Cape PLC, individually and as successor in

interest to Cape Asbestos Company Limited, by

56a

and through its duly appointed Receiver Peter D.

Protopapas, Third-Party Plaintiff, Respondent,

v.

Anglo American PLC, individually and as

successor in interest to Anglo American

Corporation of South Africa LTD., De Beers PLC,

individually and as successor in interest to De

Beers S.A., De Beers Centenary AG, De Beers

Consolidated Mines Ltd., n/k/a De Beers

Consolidated Mines Proprietary Ltd., De Beers UK

Ltd., De Beers Jewellers LTD., De Beers Jewellers

US, Inc., Anglo American US Holdings Inc.,

Element Six US Corp., Element Six Technologies

US Corp., Element Six Technologies (OR) Corp.,

First Mode Holdings, Inc., Platinum Guild

International (U.S.A.) Jewelry Inc., Lightbox

Jewelry Inc., Forevermark US Inc., Anglo

American Crop Nutrients (U.S.A.) LLC, Charter

Consolidated Ltd., ESAB Corporation, Central

Mining & Investment Corporation Ltd., Cape

Holdco Ltd., The Law Debenture Corporation PLC,

Cape Industrial Services Group Ltd., Mohed

Altrad, Altrad UK Ltd., Cape UK Holdings Newco

Ltd., Altrad Services, Ltd., f/k/a Cape Industrial

Services Ltd., Altrad Investment Authority S.A.S.,

Sparrows Offshore Group Ltd., Hawk Bidco US

Inc., ArranCo US, LLC, Sparrows Offshore, LLC,

and The Sparrows Group, LLC, Third-Party

Defendants,

Of which Mohed Altrad, Altrad Investment

Authority SAS, Charter Consolidated Ltd., ESAB

Corporation, and Central Mining & Investment

Corporation Ltd. are the Petitioners.

57a

Appellate Case Nos:

2024-001423, 2024-001499, 2024-000916, 2024002114,

2024-002116, 2024-002117, 2025-000052

ORDER

We have before us seven petitions for writs of

certiorari filed in this Court under Rule 242 of the

South Carolina Appellate Court Rules. Each petition

was filed by some combination of Petitioners Mohed

Altrad, Altrad Investment Authority SAS, Charter

Consolidated Ltd., E SAB Corporation, and Central

Mining & Investment Corporation Ltd., and each

arises from an order of the court of appeals dismissing

an appeal on the ground the order appealed from was

not immediately appealable. E ach appeal and now

each petition challenges some aspect of the circuit

court’s order appointing Peter D. Protopapas as

Receiver for Defendant Cape PLC. We deny the

petitions in cases 2024-000916, 2024-002114, 2024002116, 2024002117, and 2025-000052. In cases 2024001423 and 2024-001499, we convert the petitions to

common law writs of certiorari, and grant them

pursuant to article V, section 5 of the South Carolina

Constitution and section 14-3-310 of the South

Carolina Code (2017). We dispense with any briefing

and remand the cases to the circuit court for all

purposes, specifically including:

(A)

On May 21, this Court filed its opinion in

Welch v. Atlas Turner, Inc, Op. No. 28284

(S.C. Sup. Ct. filed May 21, 2025) (Howard

Adv. Sh. No. 19 at 12). In that opinion, we

58a

(B)

analyzed the circuit court’s jurisdiction to

appoint a receiver, discussed the factual

basis on which such an order must be based,

and set forth limitations on the receiver’s

scope of authority. We also made it clear

that appointing a receiver before judgment

is permissible only in the “rarest” and “most

extraordinary” cases. We now direct the

circuit court to:

1) E nsure

the

receiver

has

been

authorized to conduct its work by an

order filed in the specific case as to

which the work is to take place. The

receiver is not to be authorized to

conduct work as to a case in which no

receiver appointment order has been

filed.

2) E nsure that such an order is based on

findings of fact sufficient under Welch to

justify the order, and that the receiver’s

scope of authority is limited as set forth

in Welch.

3) To the extent the circuit court intends to

authorize the work of a receiver based

on facts not found sufficient in Welch, or

to authorize a scope of work not

approved in Welch, the circuit court

should make specific findings of fact and

conclusions of law the circuit court finds

justify its action.

It has come to our attention there may be

motions filed in this case and other asbestos

cases that have not been ruled on by the

circuit court. Specifically, we understand

there is a pending motion to dissolve the

receivership filed September 15, 2023, and a

59a

(C)

pending motion to reconsider a “clarifying”

order filed November 15, 2024, both in Park

v. Armstrong International, Inc, et al., 2021CP-40-2727. To the extent that is true, we

direct the circuit court to either rule on all

pending motions or set forth an explanation

of the reasons the court determines it should

not rule at this time.

We ask that the circuit court provide this

Court with a report on its progress on

matters (A) and (B), including the current

status of Park and all asbestos cases in

which a receiver has been appointed, every

30 days until further order of this Court.

We address one final matter. Over the last few years,

the court of appeals and this Court have received

dozens of interlocutory appeals in asbestos cases such

as this one. In the vast majority of those cases, the

court of appeals dismissed the appeal because the

order was not an immediately appealable order, and

we denied certiorari because we agreed the dismissal

was proper. In fact, many of the appeals from those

orders have bordered on frivolous. We will rule at a

later time on any currently pending motion for

sanctions, and any further frivolous appeals in these

cases from interlocutory orders that are not

immediately appealable will result in sanctions. In

addition, the parties’ filings at the court of appeals

and this Court have been unnecessarily antagonistic,

predominated by what one litigant in these petitions

characterized as “sniping” at each other on matters

that have nothing to do with the merits of the appeal.

No party gains an advantage in the exercise of this

inappropriate behavior. This Court and the court of

appeals will not tolerate it any further. Appeals will

be summarily dismissed, or requested relief will be

60a

summarily granted, if any party continues with this

inappropriate behavior. Our intention is to reach and

address the merits of issues properly before us

without the distraction of unnecessary sniping by the

lawyers, and if the lawyers persist in this sniping,

appropriate sanctions will be imposed.

/s/John Kittredge

C.J.

/s/John Cameron Few

J.

/s/George James Jr.

J.

/s/D. Garrison Hill

J.

Verdin, J., not participating.

Columbia, South Carolina

June 26, 2025

cc: Matthew Todd Carroll

Kevin A. Hall

Mary Elizabeth O’Neill

Shanon N. Peake

G. Murrell Smith, Jr.

John Thomas Lay, Jr.

Gray Thomas Culbreath

Lindsay Anne Joyner

Laura Watkins Jordan

Eleanor Lasseigne Jones

Jonathan M. Robinson

Brian Montgomery Barnwell

Amelia Morgan Farmer

Ioannis (Ian) George Conits

Peter Demos Protopapas

William James Blount

A.Victor Rawl, Jr.

John S. Nichols

Steven James Pugh

Benjamin Palmer Carlton

61a

Carmen Vaughn Ganjehsani

Ashwin Ray Sanzgiri

John Kenneth Chandler

The Honorable Jeanette W. McBride

62a

APPENDIX E

STATE OF SOUTH CAROLINA

COUNTY OF RICHLAND

IN THE COURT OF COMMON PLEAS

FOR THE FIFTH JUDICIAL CIRCUIT

JOHN A. TIBBS and

MARGARET B. TIBBS,

C/A No. 2023-CP40-01759

Plaintiffs,

In Re:

Asbestos Personal

Injury Litigation

Coordinated

Docket

v.

3M COMPANY et al.,

Defendants.

CAPE PLC, individually and

as successor in interest to

CAPE ASBESTOS COMPANY

LIMITED, by and through its

duly appointed Receiver Peter

D. Protopapas,

Third-Party Plaintiff,

v.

ANGLO AMERICAN PLC,

individually and as successor

in interest to ANGLO

AMERICAN CORPORATION

OF SOUTH AFRICA LTD., et

al.,

Third-Party Defendants.

ORDER ON

ALTRAD

DEFENDANTS’

NOTICE OF

RECENT

SUPREME

COURT

AUTHORITY

VOIDING

THIRD PARTY

LITIGATION,

RENEWED

MOTION TO

DISMISS AND

MOTION TO

STRIKE ALL

FILINGS AND

ORDERS IN

THE THIRD-

63a

PARTY CASE

AND THE

RECEIVER’S

AND TIBBS

PLAINTIFFS’

MOTIONS TO

CONFIRM THE

APPOINTMENT

OF THE

RECEIVER

This matter came before the Court on (i) Altrad

Defendants’ Notice of Recent Supreme Court

Authority Voiding Third Party Litigation, Renewed

Motion to Dismiss and Motion to Strike All Filings

and Orders in the Third-Party Case and (ii) the

Receiver for Cape and the Tibbs Plaintiffs’ Motion to

Confirm the Appointment of the Receiver.1 Having

considered the Motions, related memoranda,

including all opposition and reply briefing, and all

supporting materials submitted to the Court, in

addition to extensive argument on August 12, 2025,

the Court rules as follows.

PROCEDURAL BACKGROUND

1. Procedural Background of Park

a.

Park Plaintiffs filed an

complaint naming Cape

amended

On June 4, 2021, Isabella Park filed a lawsuit

asserting personal injury claims arising from asbestos

exposure against (among others) Cape PLC,

1

Anglo American plc’s Motion and associated filings are not

being ruled on in this Order because Anglo American plc has

settled their case with the Receiver.

64a

individually and as successor in interest to Cape

Asbestos Company Ltd. See Compl., Park v.

Armstrong Int’l, Inc., et al., No. 2021-CP-4002727

(June 4, 2021), at 1, 7. Ms. Park sought relief after

being “diagnosed with mesothelioma caused by

exposure to asbestos dust and fibers” unintentionally

“brought home” for years “as a result of her husband’s

work with and around asbestos-containing products.”

Id. at ¶ 4.

On June 9, 2021, less than five months after her

diagnosis, and only five days after filing her lawsuit,

Ms. Park died from mesothelioma. On August 4, 2021,

Ms. Park’s son, Keith Park, was appointed as

representative of Isabella Park’s estate (the “Park

E state”) by the Spartanburg Probate Court. See

Certificate of Appointment in the matter of Isabella

F.D.R. Park, Case No. 2021ES4201296, in the Probate

Court for Spartanburg, South Carolina (Aug. 4, 2021).

On November 17, 2021, following his appointment

as personal representative of Ms. Park’s estate, Ms.

Park’s son, Keith, amended the complaint, appearing

individually and as personal representative of the

Park E state (the “Park Plaintiffs”), to assert a

wrongful death action. See First Amended Compl.

Park v. Armstrong Int’l, Inc., et al., No. 2021-CP4002727 (Nov. 17, 2021). The amended complaint

named “Cape Intermediate Holdings Limited f/k/a

Cape Intermediate Holdings plc, individually and as

successor-in-interest to Cape Asbestos Company” and

“Cape plc, individually and as successor-in-interest to

Cape Asbestos Company” as defendants. Id.

On December 23, 2021, Keith Park, again

appearing

individually

and

as

personal

representative of Ms. Park’s estate, filed his second

amended complaint. See Second Amended Compl.

65a

Park v. Armstrong Int’l, Inc., et al., No. 2021-CP4002727 (Dec. 23, 2021). The second amended

complaint again named “Cape Intermediate Holdings

Limited f/k/a Cape Intermediate Holdings plc,

individually and as successor-in-interest to Cape

Asbestos Company” and “Cape plc, individually and

as successor-in-interest to Cape Asbestos Company”

as defendants. Id. The second amended complaint

added allegations and defendants unrelated to Cape.

b.

Park Plaintiffs properly served Cape

In December 2021, the Park Plaintiffs served

Cape Intermediate Holdings Ltd. and Cape plc with

the First Amended Complaint through an E nglish

process server.2 Neither Cape entity responded to the

complaint. At the time that Cape was served with the

complaint, Keith Park remained the personal

representative of the Park Estate.

Third-Party Defendants to the Tibbs action

notified this Court that on August 26, 2022, the

Spartanburg Probate Court entered an order closing

the Park E state. It appears from the record that

counsel for the Park Plaintiffs only became aware of

this closure when the Third-Party Defendants in

Tibbs raised the matter in filings in this Court. Once

counsel were made aware that the estate had been

2

The Park Plaintiffs ostensibly served only the First Amended

Complaint and not the Second Amended Complaint on Cape

because the First Amended Complaint was the complaint that

named Cape for the first time in the action. The Second Amended

Complaint was not served on Cape, ostensibly because Cape had

already been served with an operative summons and complaint

identifying the facts relevant to Cape and the claims asserted

against Cape, and no such facts or claims were added in the

Second Amended Complaint.

66a

closed, they took immediate steps to have Mr. Park

reopen the Park E state. At the time of this Court’s

August 12, 2025 hearing, the Park E state had been

reopened.

c.

Park Plaintiffs moved to appoint a

Receiver over Cape

On March 6, 2023, the Park Plaintiffs filed a

motion for “this Court to appoint a receiver over Cape

PLC and its subsidiaries, affiliates, successors, and

assigns.”

Motion to Appoint Receiver, Park v.

Armstrong Int’l, Inc., et al., No. 2021-CP-4002727

(Mar. 6, 2023) (“Appointment Motion”), at 1. The

Appointment Motion was made under S.C. Code

§§ 15-65-10(4) and (5), on the basis that Cape plc “is

the successor in interest to Cape Industries Ltd. (f/k/a

Cape Asbestos Company Ltd.” and, with “its

subsidiaries and affiliates…were and are private

companies organized and existing under the laws of

the United Kingdom, with its principal place of

business in E ngland.” Id. Park Plaintiffs provided

notice of the Motion to Appoint a Receiver to the Cape

entities using international carrier DHL.

The Appointment Motion described Cape’s moral

fraud in detail, referencing 34 exhibits from prior

litigation that demonstrated Cape’s calculated

decision to escape U.S. product liability litigation

after decades of sales of raw asbestos fibers into the

U.S. market, including specifically into South

Carolina, while at the same time continuing sales to

U.S. customers through a new Lichtenstein company,

but using the same U.S. office and staff to interface

with customers. Id. at 1-6. As the Park Plaintiffs

described, Cape “concocted a scheme to avoid its legal

responsibilities to persons injured from using those

end products because, startlingly, Cape deemed itself

67a

as having—in its own words—no ‘moral responsibility’

to those end users. Rather than defending its conduct

in front of juries in the United States, Cape decided to

simply accept default judgments in asbestos lawsuits

and ultimately flee the country, knowing that nearly

all the Company’s assets were in jurisdictions

(namely, the U.K., South Africa, and Lichtenstein)

where judgments in those lawsuits could not be

enforced.” Id. at 1-2.

d.

This Court appointed Peter

Protopapas as Receiver over Cape

D.

Based on the Park Plaintiffs’ detailed

presentation of Cape’s moral fraud, and specifically

Cape’s failure to respond to the Park Plaintiffs’

complaint as was expected by Cape’s course of conduct

in U.S. litigation beginning in 1978, this Court

appointed Peter D. Protopapas as Receiver over Cape,

pursuant to S.C. Code §§ 15-65-10(4) and (5) on March

17, 2023. Park v. Armstrong Int’l, Inc., et al., No.

2021-CP-4002727 (Mar. 17, 2023) (the “Cape

Appointment Order”). The Cape Appointment Order

granted the receiver “the power and authority [to]

fully administer all assets of Cape, accept service on

behalf of Cape, engage counsel on behalf of Cape and

take any and all steps necessary to protect the

interests of Cape whatever they may be.” Id. at 1.

2. Procedural Background of Tibbs

a.

Tibbs Plaintiff sued Cape

On April 5, 2023, John A. Tibbs and Margaret B.

Tibbs (the “Tibbs Plaintiffs”) filed a lawsuit asserting

personal injury claims arising from asbestos exposure

against (among others) “Cape PLC, individually and

as successor in interest to Cape Industries Ltd. f/k/a

Cape Asbestos Company Ltd. and its subsidiaries and

68a

global affiliates.” See Compl., Tibbs v. 3M Company,

et al., No. 2023-CP-4001759 (April 5, 2023), at 1, 7.

Mr. Tibbs sought relief after being diagnosed with

lung cancer. Id. at 1. Plaintiffs alleged that Mr. Tibbs

“was exposed to asbestos during the course of his

career at various job sites, primarily located in South

Carolina and North Carolina. He was also exposed to

asbestos fibers carried home on the clothing and

person of his father while he also worked as a

superintendent of maintenance at various jobsites

while Plaintiff John A. Tibbs lived in the family

home.” Id. at 15. Plaintiffs sued Cape as a “Product

Defendant,” alleging that “[a]t all times material

hereto, CAPE

PLC manufactured, processed,

imported, converted, compounded, supplied, installed,

replaced, repaired, used, and/or retailed substantial

amounts of asbestos/and or asbestos-containing

products, materials, or equipment, including but not

limited to, raw asbestos fibers present at numerous

jobsites in South Carolina and North Carolina.” Id. at

23.

On May 3, 2023, the Tibbs Plaintiffs filed an

amended complaint against (among others) “Cape

PLC, individually and as successor in interest to Cape

Industries Ltd. f/k/a Cape Asbestos Company Ltd. and

its subsidiaries and global affiliates.” See First

Amended Compl., Tibbs v. 3M Company, et al., No.

2023-CP-4001759 (May 3, 2023), at 2, 8. Plaintiffs’

claims against Cape remained the same. See id. at 17,

28.

b.

Tibbs Plaintiffs served Cape’s Receiver,

and the Receiver filed a general denial

on behalf of Cape.

The Tibbs Plaintiffs served Cape’s Receiver with

the Complaint and the Amended Complaint. On June

69a

29, 2023, the Receiver answered the Amended

Complaint with a General Denial. See Tibbs v. 3M

Company, et al., No. 2023-CP-4001759 (June 29,

2023).

c.

Receiver filed Third-Party Action

against Anglo American, De Beers,

Charter, and Altrad

Following his appointment in Park and his receipt

of service of the Complaint and Amended Complaint

in Tibbs, on June 30, 2023, the Receiver filed a thirdparty action against, among others, E SAB

Corporation, Altrad Investment Authority SAS, and

Mohed Altrad. See Third-Party Compl., Tibbs v. 3M

Company, et al., No. 2023-CP-4001759 (June 30,

2023).

The Receiver’s third-party declaratory

judgment action seeks declarations as to the nature of

the relationships among Charter, Central Mining,

and Cape; the status of the named Third-Party

Defendants as successors to Cape and/or Charter, and

Central Mining; and that the Third-Party Defendants

were unjustly enriched by their participation in

Cape’s scheme.

The Third-Party Defendants filed motions to

dismiss and dissolve the Cape receivership after

receipt of the Third-Party Complaint. This Court held

a hearing on the Third-Party Defendants’ motions on

October 25, 2023. On December 6, 2023, this Court,

having considered those arguments, denied the

motions in a written order. See Order Denying

Certain Third Party Defendants’ Motions to Dissolve

Receivership, Tibbs v. 3M Company, et al., No. 2023CP-4001759 (Dec. 6, 2023).

On May 21, 2025, the South Carolina Supreme

Court entered an order in a separate receivership over

70a

the insurance assets of another entity, Atlas Turner.

See Welch v. Advance Auto Parts, Inc., 445 S.C. 640,

916 S.E .2d 320 (2025). In Welch, the Court upheld

this Court’s appointment of a receiver over the

insurance assets of Atlas Turner under S.C. Code

§ 15-65-10(5), but it narrowed one definition in the

order to conform with the insurance-only receivership

that this Court had instituted.

ORDERS

1. Validity and effect of reopening Park Estate

Third-Party Defendants complain to this Court

that because the Park Estate probate order lapsed on

August 26, 2022, nothing done in the Park case during

that period, including the motion to appoint a

receiver, had any effect. In support of that theory,

counsel cite this court to Glenn v. E.I. DuPont de

Nemours & Co., 254 S.C. 128, 134, 174 S.E. 155, 158

(1970) as well as McCullar v. The Estate of Dr.

William Cox Campbel, 381 S.C. 205, 672 S.E .2d 784

(2018). Those cases addressed whether a wrongful

death lawsuit could move forward when a personal

representative of an estate had not been appointed.

That is not the case here.

Here, Isabella Park brought suit against Cape.

Following her death, Keith Park was properly

appointed and filed two amended complaints, each

time naming Cape. Mr. Park filed these complaints

while the Park Estate was open. While it is true that

the Park Estate lapsed, this Court finds that the Park

E state was validly reopened on July 30, 2025.

Pursuant to South Carolina Code § 62-3-701, the

authority of the Personal Representative relates “back

in time to give acts by the person appointed which are

71a

beneficial to the estate occurring prior to appointment

the same effect as those occurring thereafter.”

A personal representative, pursuant to the Code,

“may ratify and accept acts on behalf of the estate

done by others where the acts would have been proper

for a personal representative.” Id. The reporter’s

comment to S.C. Code § 62-3-701 observes that “the

authority of the personal representative relates back

to death and stems from his appointment,” and that

“[t]he personal representative may ratify acts done by

others prior to appointment.”

Therefore, all actions taken by or on behalf of the

Personal Representative for the Park E state,

including service of the first amended complaint on

Cape, the Park Plaintiffs’ motion to appoint the

Receiver over Cape, and this Court’s order appointing

the Receiver over Cape in the Park matter are valid.

2. Validity of the appointment of the Receiver

for Cape and its authority to bring the thirdparty action in Tibbs

a.

Validity of the Park Estate

Third-Party Defendants in Tibbs, Altrad

Investment Authority S.A.S. (“Altrad”) and E SAB

Corporation

(“

E SAB”)

(together,

“Third-Party

Defendants”) argue in their Motions to Dismiss the

Third-Party Complaint and Dissolve the Cape

Receivership and in their Oppositions to the

Receiver’s Motion to Confirm Appointment of Receiver

in Tibbs that the Receiver’s Third-Party Complaint

must be dismissed because the lapse of the authority

of the Park Estate personal representative makes the

Receiver’s appointment a nullity.

For the reasons set forth above, pursuant to South

Carolina Code § 62-3-701, the authority of the Park

72a

Estate Personal Representative relates “back in time

to give acts by the person appointed which are

beneficial to the estate occurring prior to appointment

the same effect as those occurring thereafter.” As a

result, this Court finds that the Park Estate Personal

Representative relates back to the time that this

Court appointed the Cape Receiver on March 17,

2023; therefore, Mr. Protopapas had the authority to

bring the Third-Party Complaint in Tibbs on June 30,

2023.

b.

Analysis of alleged moral fraud on

behalf of Cape

Third-Party Defendants in Tibbs argue that the

Cape Receivership should be dissolved, or that the

Motion to Confirm the Appointment of the Receiver

should be denied, because the Court did not find that

Cape engaged in moral fraud sufficient to appoint a

Receiver under S.C. Code § 15-65-10(5). Likewise, the

South Carolina Supreme Court Order in Tibbs v. 3M

Company, Appellate Case Nos. 2024-001423, 2024001499, 2024-000916, 2024-002114, 2024-002116,

2024-002117, and 2025-000052 remanded the cases to

this Court and directed the Court to ensure that the

Cape Receivership Order “is based on findings of fact

sufficient under Welch to justify the order.” Slip Op.

at 4 (June 26, 2025).

This Court has evaluated the alleged moral fraud

of Cape based on information received from two

sources: (1) Plaintiff’s original Motion to Appoint the

Receiver over Cape, filed on March 6, 2023 in Park,

and (2) the Receiver’s Report, filed on July 11, 2025 in

73a

Tibbs.3 This Court finds the following facts, as

presented by Plaintiffs and the Receiver, respectively,

constitute moral fraud sufficient to appoint a Receiver

under S.C. Code § 15-65-10(5):

1.

Moral fraud facts as presented in

Plaintiff’s March 6, 2023 motion

a.

Cape establishes American presence

and operations through NAAC

At its peak, from mines in Apartheid-era South

Africa, Cape produced approximately 90%4 of the

world’s supply of amosite asbestos, including asbestos

imported and used in South Carolina.

For the “purpose of expediting and facilitating the

movement” of asbestos from South African mines, on

October 14, 1953, Cape Asbestos Company Ltd. (a

U.K. entity) established the North American Asbestos

Corporation (“NAAC”), a direct subsidiary that was

part of the Company’s “mining division” and domiciled

3

Having considered the timing of Plaintiffs’ presentation of

the initial moral fraud facts prior to the appointment of the

Receiver, the exhibits to which are not marked Confidential and

appear to be Bates labeled and contain exhibit stickers from prior

litigation; and the information provided by the Receiver in his

Report of July 11, including that certain exhibits attached to the

Report that contained communications between lawyers and

their clients were obtained from an archive of materials from the

University of Strathclyde in Glasgow, Scotland, this Court finds

that all facts contained in Plaintiff’s Motion and the Receiver’s

Report, on which this Court relies in the following recitation of

facts, were obtained from publicly available sources.

4

Hammond v. North American Asbestos Corp., 454 N.E . 2d

210, (Ill. 1983)(confirming that Cape Asbestos supplies 90% of

the world’s supply of amosite asbestos and virtually the sole

supplier of longer fiber grades).

74a

in Illinois.5 NAAC had both marketing and

distribution roles: (i) serving as Cape’s sales agency in

the United States, with sole authority to offer Cape

products and responsibility for transmitting

information about customer needs to Cape mines, and

(ii) ensuring proper distribution of asbestos products

and that shipments from Africa made it “all the way

through to the customer’s plant,” including, on

information and belief, to plants in South Carolina or

through South Carolina ports.6 NAAC “effect[ively]

5

See NAAC’s Answers to Plaintiff’s Requests for Production in

Paello v. Johns Manville Corp., in the District Court for Boulder

County, Colorado, Case No. 80-cv-0089-2 (describing NAAC’s

history); CAPE000177, List of Cape Divisions (identifying NAAC

as the sole U.S.-based entity of the Cape mining division); Letter

from NAAC President C. Morgan to President of C-X Products

Corp., Sept. 26, 1973, CAPE 000869 (describing NAAC as “a

division of Cape Asbestos Co. Ltd., with corporate offices in

London”).

6

See Letter from Cape Director to Lord Bissell & Kadyk, Oct.

6, 1953, CAPE 000263–66 (describing intended business of

NAAC, including that the company would receive a 2.5 percent

commission or work on behalf of the Cape mining companies, “it

being made clear that [NAAC] will have no authority to negotiate

or make contracts, but shall act as a source of information and

provide general assistance to the South African business”);

Letter from Cape Group General Counsel A.J. Penna to Max

Meyer of Lord Bissell, July 15, 1975, CAPE 000333 (informing

Cape’s U.S. lawyer, “we feel that it would be a sensible

precaution against Cape involvement in any future proceedings

for [Cape’s executives] to resign from the N.A.A.C. Board and I

accordingly enclose their resignation letters”); NAAC

Appointment Announcement, CAPE000729 (describing NAAC as

“specialize[d] in marketing and distribution of Blue and Amosite

asbestos in the United States, Canada, Mexico and the

Caribbean”); NAAC Internal Memorandum dated Oct. 27, 1969,

CAPE000988–89 (describing customer services).

75a

. . . put the Mines at every U.S. port”7 and by 1970 was

the “largest U.S. importer of Amphibole Fibres,”

which were “re-distributed from . . . warehouse

locations in E ast Coast, Gulf Coast and West Coast

Ports.”8

Over its history, NAAC was “essentially a oneman operation” consisting of one salesman supported

by four office clerical personnel (overseen by a board

of directors made up of largely of Company lawyers or

other Cape executives, until all Cape officials resigned

in 1975 as a “sensible precaution” in light of U.S.

litigation).9 In coordination with the global Cape

network, however, NAAC sold asbestos to Cape’s

numerous American-based clients, including, but not

limited to, the U.S. Government, Keene Corporation

(f/k/a Baldwin-E hret-Hill), Carey, Fibreboard, GAF

(f/k/a Ruberoid), Owens Corning, Johns-Manville and

Pittsburgh Corning.10 These companies were giants

among asbestos product manufacturers, and on

7

NAAC Internal

CAPE000988–89

Memorandum

dated

Oct.

27,

1969,

8

Cape Newsletter, No. 5, No. 12, Dec. 1970, CAPE000878–79

at 1.

9

See NAAC’s Answers to Plaintiff’s Requests for Production in

Paello v. Johns Manville Corp., in the District Court for Boulder

County, Colorado, Case No. 80-cv-0089-2 CAPE 000110–12

(describing NAAC’s lean staffing); Letter from J. Holtze (NAAC

Secretary) to J. Morris, Group Chief Management Accountant of

Cape Industries Ltd., Dec. 3, 1975, CAPE 001514 (“Despite the

volume of sales and profits of NAAC, our operation is a very

small one, with only a total of 5 employees”); The Cape Asbestos

Company Limited Notification of Subsidiary’s Particulars for

NAAC, CAPE001528 (identifying six directors in 1970).

10

Letter from R. Cryor, President of NAAC, to R. Gaze of Cape,

July 8, 1969, CAPE000994–95.

76a

information and belief, their products were used

extensively in South Carolina. In addition, NAAC

tried to influence public and corporate opinion about

the safety of asbestos, including, but not limited to,

rebutting emerging medical critiques of its safety.11

Cape Asbestos, moreover, dominated NAAC’s

decision-making, with NAAC, for example, unable to

“borrow one dollar without [Cape Asbestos’s]

approval” and routinely forced to withdraw cash from

the United States to pay dividends to Cape Asbestos

(minimizing the assets on NAAC’s balance sheet).12

11

See, e.g., Letter from R. Gaze, Cape Chief Scientist to C.

Morgan, NAAC President, July 7, 1977, CAPE 000130

(discussing prioritizing efforts of Asbestos International

Association to “organise a body of medical opinion that is

prepared to stand up” to critical opinions).

12

See, e.g., Letter from C. Morgan, NAAC President, to M.

Meyer, Cape U.S. Lawyer, Feb. 25, 1976, CAPE 001507 (“If I

interpret this correctly, we are not entitled to borrow one dollar

without [Cape’s] approval, which would severely limit NAAC’s

management flexibility to extend credit to customers, maintain

warehouse stocks and make prompt monthly payments to

[Cape]” to meet dividend requirements); Letter from R. Dent of

Cape to R. Cryor of NAAC, Apr. 13, 1959, CAPE000261–62 (1959

letter suggesting that Cape was “extremely cautious” in picking

NAAC personnel who would “fit into [the Company’s] scheme of

things . . . without causing embarrassment all around”); NAAC

Annual Board Meeting Minutes, April 23, 1976, CAPE 000816

(showing payment of $250,000 dividend “which may be paid in

monthly installments on or before December 1, 1976 to

shareholders of record on June 1, 1976); Letter from R. Cryor of

NAAC to Malcom Reid of Cape, Dec. 28, 1956, CAPE000931–32

(stating in 1956 that NAAC “think[s] of ourselves as being part

of a coordinated group with responsibilities to the whole, even

though this may mean subordinating other and more profitable

interests of NAAC,” and expressing offense at being called

77a

b.

Cape accepts default judgments and

liquidates NAAC to evade claimants

After the onset of asbestos-related product

liability litigation in the 1970s, Cape became

especially concerned with its own liability.13 Thus,

Cape Asbestos went through tortured machinations to

make it appear it was reducing oversight over NAAC,

but in reality, NAAC continued to operate as a mere

division or instrumentality under Cape’s domination

and control.14

“commission agents,” which “implies an independent, lack of

responsibility, and an emphasis on local self-interest”).

13

See, e.g., Letter from Cape’s U.S. Lawyers at Lord Bissell to

A.J. Penna, Cape General Counsel, Oct. 3, 1975, CAPE000351–

56 (detailing “the objective under consideration,” which was “an

attempt to limit NAAC’s and Cape’s exposure to future United

States litigation,” in a six-page letter, with section headings

including “INSURANCE ,” “STATUTE OF LIMITATIONS,”

“NAAC LIQUIDATION,” “RE PLACE ME NT FOR NAAC,” and

“E NFORCE ME NT of U.S. JUDGME NTS BY FORE IGN

COURTS”).

14

See Letter from C. Morgan of NAAC to S.M. Dougherty, of

Cape’s South African Mining subsidiary, Cape Asbestos South

Africa (Pty.) Ltd., Feb. 2, 1978, CAPE 000123 (NAAC

discouraging Cape visits to the U.S. in 1978 or else negate

“maneuvers” related to “continued problems with product

liability litigation”); Letter from R. Gaze, Cape Chief Scientist, to

C. Morgan, NAAC President, July 4, 1975, CAPE 000152

(suggesting to “disassociate the Parent Company as fully as

possible from the operating companies,” and noting, “It would I

think be as well for this letter not to appear on the office file and

so I am sending it to your home”); Letter from R. Gaze, Cape

Chief Scientist, to C. Morgan, NAAC President, June 20, 1975,

CAPE 000154 (raising whether to “do something to change the

identity of NAAC in order to avoid exposing the company

78a

In addition, Cape began to engage in a campaign

of litigation avoidance by refusing to accept process or

appear in any proceedings in the United States,

including failing to respond to the Second Amended

Summons in this action, as properly served pursuant

to Article 10 of the Hague Convention on March 8,

2022.15 According to Cape executives, this strategy

was warranted because they “really cannot be said to

have a moral responsibility [to respond to the suits]

unnecessarily,” while doing “everything possible to maintain a

successful selling operation in the United States,” and therefore

requesting that Morgan reduce physical inventory at the NAAC

warehouse, again sent to Morgan’s home address); Letter from

M. Meyer, Cape’s U.S. Lawyer, to R. Dent of Cape, May 6, 1974,

CAPE 000166–67 (suggesting that “no one from Cape be an

officer of NAAC since we want it to be as independent as possible

in order to avoid any contention that it is the alter ego of

Cape and that Cape is doing business in the United States”

(emphasis added); Letter from Cape Group General Counsel A.J.

Penna to Max Meyer of Lord Bissell, July 15, 1975, CAPE000333

(stating “that it would be a sensible precaution against Cape’s

involvement in any future proceedings for [Cape personnel] to

resign from the N.A.A.C. Board,” and enclosing resignation

letters).

15

See Letter from Lord Bissell to T. Penna, Cape General

Counsel, March 6, 1978, CAPE000550–51 (opining in 1978 “that

it is most unlikely that any plaintiff would bother to pursue

collection of any default judgments against Cape”); Telex from

Lord Bissell, Cape’s U.S. lawyers, to A.J. Penna, Cape General

Counsel, March 7, 1979, CAPE 000702 (confirming receipt of

correspondence stating that “U.K. and South African lawyers

confirm that any resulting judgments will not be enforceable

against Cape’s U.K. and South African assets” and that “the

potential loss of all NAAC’s outstanding assets is not material in

the Cape Group context”).

79a

and are simply victims of [a] US product liability

cult.”16

Ultimately, to avoid paying damages to workers

whom were made sick or died as the result of using its

asbestos, Cape resolved to liquidate NAAC, effective

January 31, 1978.17 E xisting debts of NAAC were

paid, with remaining assets transferred upstream to

NAAC’s direct parent company at the time, Cape

Industries Overseas Ltd. (a U.K. entity wholly owned

by Cape Industries Ltd.).18 NAAC’s liquidation was

central to Cape’s litigation-avoidance strategy, based

on legal advice that no British or South African court

would enforce a judgment against a Cape entity if it

never appeared again in the United States.19

16

Piercing the Corporate Veil: Cape Industries and

Multinational Corporate Liability for a Toxic Hazard, 1950-2004;

Tweedale and Flynn, Enterprise & Society, June 2007, Vol. 8 No.

2 at 268-296 (1977 letter from Cape’s counsel).

17

See, e.g., Letter from J. Holtze of NAAC to J. Sparkes, Group

Financial Controller of Cape Industries Ltd., Apr. 19, 1978,

CAPE 001035 (noting “[o]fficially, North American Asbestos

Corporation closed on January 31, 1978” and requesting Cape

Asbestos official to stop sending accounting memoranda to

former NAAC officials, “for safety’s sake,” as “we are not

supposed to be receiving any main that would tie us to Cape after

the January 31, 1978 deadline”).

18

See Lord Bissell Internal Memorandum dated Aug. 24, 1979,

CAPE 000593 (noting “[a]fter payment of NAAC’s debts, it is

intended that the assets of NAAC will be distributed to NAAC’s

sole shareholder,” identified as “Cape Industries Overseas Ltd.”).

19

See, e.g., Letter from S. Milwid of Lord Bissell to A.J. Penna,

Cape General Counsel, Dec. 23, 1975, CAPE000141–43 (advising

Cape on default-judgment risk); Telex from S. Milwid of Lord

Bissell to A.J. Penna, Cape General Counsel, May 24, 1978,

80a

Yet, Cape continued to contemplate schemes to

facilitate the sale of asbestos to U.S. customers while

minimizing its product-liability risk.20 For example,

Continental Products Corporation (using the same

physical address as NAAC in Chicago, Illinois) was

formed to “act as a commission agent for the future

sales of asbestos from South Africa” in the United

States, with South African mines selling to a new

Lichtenstein subsidiary called Associated Mines

Company, which in turn sold asbestos to the United

States under its own invoices.21 The express “purpose

CAPE000566 (agreeing that it would be in the “best interests of

Cape companies other than NAAC” to make “no response” to

litigation); Confidential and Work Product Memorandum from

S. Milwid of Lord Bissell to E . Burkholder of Lord Bissell

regarding Deposition of Geoffrey A. Higham (Cape executive),

Nov. 28, 1984, CAPE 000617–19 (summarizing 1984 deposition

testimony regarding litigation strategy, and concluding, “[o]n the

whole, from my review of this Abstract, it does not appear that

Walker, in the 89 pages of the deposition, uncovered very much,

particularly pertaining to the decision for the dissolution of

NAAC”).

20

See, e.g., Memorandum to File, Dec. 12-14, 1977, Cape

Industries London, CAPE 000728 (1977 meeting memorandum

“to discuss liquidation of NAAC and formation of new off-shore

company to service North American market”)

21

Lord Bissell Memorandum dated April 7, 1978, CAPE000386

(also noting “Gerry Morgan [former NAAC President, now CPC

President] was in Mexico City in January of this year and is

supposed to have explained the new corporate arrangement to

the E ureka group of companies’ officers”); see also

Announcement

of

Continental

Products

Corporation,

CAPE000531 (introducing Continental Products Corporation as

“Agent to handle the North American requirements for Amosite

and Crocidolite asbestos fibre,” and noting “our location will be

the same as the former North American Asbestos Corporation,”

81a

of this corporate arrangement [was] to eliminate or

reduce as much as possible the exposure in the United

States of [South African mining companies] to

lawsuits brought against it under theories of strict

liability concerning products liability on the sale of

asbestos in the United States.”22

2.

Moral fraud facts as presented in the

Receiver’s report

On July 11, 2025, the Receiver submitted a report

to this Court in Tibbs detailing the results of research

performed into the moral fraud of Cape. See Tibbs v.

3M Company, et al., No. 2023-CP-4001759 (July 11,

2025). The Receiver’s detailed presentation covered

much of the same ground as was presented in the Park

Plaintiffs’ Appointment Motion, supplemented with

information the Receiver uncovered through his

detailed investigation into Cape and its affiliates in

carrying out his charge to marshal the assets of Cape.

Because of the significant overlap between the

Receiver’s report and the Park Plaintiffs’ factual

recitation, the Court recounts the facts the Receiver

presented in its July 11 Report related only to four

categories: (1) Cape’s concealment its early knowledge

of asbestos health hazards from U.S. customers,

(2) Cape’s suppression of a 1962 report of the South

African Pneumoconiosis Research Unit (“PRU”),

(3) Cape’s creation of a fake Lichtenstein company to

continue its sales of asbestos to the U.S. market

and that “[a]lthough operating as a new organization, bot Joan

Holtze and myself will endeavor to maintain the same service to

our many customers and friends as offered at North American

Asbestos Corporation.”).

22

Memorandum from A. Sarabia of Lord Bissell to M. Meyer of

Lord Bissell, Jan. 23, 1978, CAPE000377–79.

82a

following the closure of NAAC, and (4) information

related to Cape’s modern moral fraud.

i.

Cape obtains early knowledge of

asbestos dangers from disease in its

own manufacturing plants and lies

about that knowledge to its U.S.

customers

From the time that Cape started selling asbestos

in the United States, it already had unique knowledge

of the health hazards of asbestos as compared with

any customer or consumer in the United States.

Cape’s own documents, combined with witness

testimony, scientific data, and general historical

knowledge, confirm this disturbing fact. Cape knew

the asbestos it sold was dangerous while its customers

usually did not.

In 1953, immediately before Cape opened its

NAAC sales operation in Chicago,23 Cape published an

85-page brochure describing the company’s origin,

organization and operations.24 Cape diagrammed its

operations in the brochure.25 Cape had four principal

groups under its head London office: branch selling

offices (NAAC joined this branch when Cape formed it

later the same year), UK product manufacturing

23

Prior to 1953, Cape used an “agent” in New York City to

assist in marketing to U.S. buyers. See Letter from R. Dent to

Lord Bissell (Sept. 18, 1953) (“We have recently discontinued our

representation in America, which has hitherto been carried on in

New York by Mr. A.W. Koehler, who runs a small selling agency,

in which we were by far the largest of his principals.”).

24

Cape asbestos, the story of the Cape Asbestos Company

Limited, 1893-1953.

25

Id. at 50.

83a

factories,

miscellaneous E“ nglish

subsidiary

companies,” and overseas subsidiary companies.26

E very one of these operations involved the

exploitation of asbestos as a commercial raw material,

from mining, to processing into finished products, to

the sale of the fiber overseas.27 The “overseas”

companies, according to the diagram, were the

asbestos mining operations in South Africa.28 Cape

noted that it would dispatch executives from London

to “control [ ] the whole of Cape’s operations in that

country,” meaning, South Africa.29

Cape Asbestos Company began advertising its

asbestos for sale in the United States in 1920. It

advertised mainly in Asbestos Magazine, which was a

monthly trade journal published in Philadelphia,

Pennsylvania, and circulated nationally from 1919 to

1983. Cape advertised in virtually every issue until

1978—almost 600 issues. At the same time Cape

began selling asbestos to U.S. customers, it developed

first-hand knowledge about the dangers of asbestos

exposure. In the early 1900s, workers at its Barking

Plant in London began developing asbestosis, a

noncancerous but often fatal lung condition.30

Among other products, Barking manufactured a

pre-formed pipe and block insulation named

26

See id.

27

See generally id.

28

See generally id.

29

Id. at 56.

30

Cape Asbestos, the story of the Cape Asbestos Company

Limited, 1893-1953, at 50, 62; Cape Inquests (1929-1938)

(summaries of coroner inquests revealing early recognition of

asbestos-related worker deaths at Cape’s U.K. facilities.).

84a

“Caposite”.31 Anthony Mendelle (who was deposed in

1984) was the Plant Manager at Barking from 1960 to

1968, following his work as the Production Manager

at the same plant from 1956 to 1960.32 Mendelle saw

first-hand the effects of asbestos exposure on plant

workers—the plant had a “running total” of about 60

asbestosis cases a year, and more ominously, workers

were also contracting mesothelioma, an incurable

cancer of the lining of the lung that is usually fatal

within a year of diagnosis.33

Mendelle was

instrumental in the closure of the Barking Plant

because of the number of workers dying from

exposures at the Plant.34 Mendelle testified that

Caposite was a “major department” at Barking.35

Caposite was made with 100% amosite asbestos.36

Other operations used the two other types of asbestos,

crocidolite and chrysotile.37

It is here that two principal antagonists enter the

Cape story—Richard Gaze and Walter Smithers.

Smithers was the Barking Plant doctor starting in

1956 and was still working for Cape as of 1984, when

31

Cape Asbestos, the story of the Cape Asbestos Company

Limited, 1893-1953, at 62.

32

Deposition of Anthony Mendelle at 3, Smith v. Pittsburgh

Corning Corp., Nos. GD81-20383 & GD81-20381 (Pa. Ct. Com.

Pl. Allegheny Cnty. Nov. 13, 1984).

33

Id. at 11.

34

Id. at 48-49.

35

Id. at 40.

36

Id. at 37.

37

Id. at 41-42.

85a

Mendelle was deposed.38 Richard Gaze worked at

Barking from 1943 to 1963.39 After 1963, Gaze rose to

become the “Chief Scientist” at Cape and held senior

management roles across the entire Cape asbestos

operation for many years.40

These included

membership on the Board of Directors of numerous

Cape asbestos subsidiaries.41 The minutes of a

“special meeting of the board of directors of the North

American Asbestos Corporation” held on April 7,

1970, note that “[t]he chairman reported that Dr.

Richard Gaze of Cape Asbestos, Ltd will have direct

responsibility on behalf of the parent company for the

operations

of

North

American

Asbestos

42

Corporation.”

Mendelle testified that Cape knew about asbestos

and mesothelioma at Barking—because workers were

dying of both asbestos-related diseases in the 1950s.43

Mendelle, Gaze and Smithers discussed mesothelioma

and asbestosis at Barking, and that low exposures

could cause mesothelioma.44 Mendelle testified that

38

Id. at 5.

39

Id. at 7. The evidence in this case will place Gaze and

Smithers squarely at the center of Cape’s efforts to exploit

asbestos for profit, to mislead others about the dangers of

asbestos, and to hide what Cape actually knew about effects of

asbestos exposure.

40

Id. at 6.

41

Id.

42

NAAC Special Meeting Minutes (April 7, 1970).

43

Deposition of Anthony Mendelle at 11-12, Smith v.

Pittsburgh Corning Corp., Nos. GD-91-20838 & GD81=20381

(Pa. Ct. Com. Pl. Allegheny Cnty. Nov. 13, 1984).

44

Id. at 11-12, 69.

86a

“we knew there was an association” between amosite

and mesothelioma well before a seminal article on

asbestos disease was published in 1965 by Dr. Muriel

Newhouse.45 Newhouse spent time at Barking, and

much of her data for the article came from her time

investigating disease at the plant.46 Mendelle said

that he and Newhouse had numerous conversations

about amosite as a cause of mesothelioma at

Barking.47 Mendelle was asked if workers in the

Caposite operation—which used only amosite, as

noted above—had developed mesothelioma, and he

said “yes, many.”48 Mendelle acknowledged that all

three types of asbestos were used at Barking, and that

the workers may have worked in departments other

than the main Caposite operation.49

Despite this knowledge, Dr. Gaze repeatedly told

Cape’s customers that “it is a fact that not one

authenticated case of mesothelioma has been

associated with amosite anywhere in the world.”50

This letter was passed on to the President of one of

Cape’s major amosite customers in the United

States—Robert Buckley, of Pittsburgh Corning

Corporation—and in his reply to Dr. Gaze, Mr.

Buckley wrote: “. . . from your letter, I am assured that

no customer’s worker need be concerned about

45

Id. at 56-57; Muriel L. Newhouse, Asbestos in the Workplace

and the Community, 16 Ann. Occup. Hyg. 97 (1973).

46

Mendelle Deposition, supra, at 58.

47

Id. at 56-57.

48

Id. at 66.

49

Id. at 68.

50

Letter from Gaze to Cryor (March 22, 1966) (emphasis in

original).

87a

mesothelioma.”51 In a memorandum to over twenty

managers and sales personnel at Cape along with Dr.

Gaze, the Cape Sales Director gave advice to the

addressees of the memorandum “who are faced with

questions on the possible dangers of to health involved

in the use of asbestos based materials.”52 The Sales

Director repeated exactly what Dr. Gaze wrote to Mr.

Buckley at Pittsburgh Corning, noting first that

Cape’s Caposite line of products made solely with

amosite “are now our principal asbestos products,” the

Sales Director then stated that “not one case of

mesothelioma [has been] associated with amosite

asbestos.”53 Dr. Gaze later died from mesothelioma.

ii.

Cape’s suppression of a 1962 Report

involving its mining operations in

South

Africa

that

shows

mesothelioma incidence from mining

asbestos or living near asbestos

mines.

Cape had been mining asbestos in South Africa for

over 50 years when it created NAAC. Scientists began

seeing sporadic cases of the disease “mesothelioma”

(also called “endothelioma” or “pleural sclerosis”) in

the late 1940s and early 1950s. But it was a young

pathologist from South Africa who first recognized the

relationship between asbestos exposure and

mesothelioma. Dr. Chris Wagner was appointed by

the South African Government in 1954 as a research

fellow to the Pneumoconiosis Research Unit (PRU) in

Johannesburg. He took an interest in mesothelioma,

51

Letter from Buckley to Gaze (March 30, 1966).

52

Letter from Galloway (Aug 19, 1966).

53

Id.

88a

visiting the Cape asbestos mines in South Africa, and

then meeting with management officials at Cape and

another asbestos mining company (Turner and

Newell) in London where he was “assured . . . that I

was following a line of research which seemed to them

to be of little value, and that I would be advised to

follow other lines of investigation.”54

Dr. Wagner reported a series of 33 mesothelioma

cases in South African mine workers, and in people

living near the mines, at the 1959 Pneumoconiosis

Conference in Johannesburg. The formal scientific

paper was published in 1960.55

Wagner’s

investigation triggered the PRU to investigate

mesothelioma at the South African asbestos mines.56

Cape and other mining companies partially financed

the study, which meant the mining companies were

copied on all reports and had input on designing study

parameters.57

The investigators saw troubling indications of

disease soon after the study began.58 An October 6,

1961 memorandum of the PRU noted that it discussed

early results with the “asbestos industry”—Cape, and

others—and that the results showed that the

incidence of asbestosis amongst miners and the

54

Letter from Christopher Wagner to Cape (November 30,

1994).

55

Id.; see also Wagner, J.C., Sleggs, C.A., and Marchand, P,

Diffuse Pleural Mesothelioma and Asbestos Exposure in the

North West Cape Province, Br. J. Ind. Med. 17:260-65 (1960).

56

Memo from Gear re: Proposed Study of Mesothelioma in

South Africa (Nov. 29, 1960).

57

Id.

58

Letter from Naude to Diederichs (Oct. 6, 1961).

89a

ordinary population was “alarmingly high,” and

further that the incidence of mesothelioma, “although

perhaps not large in terms of actual numbers—is very

high from an epidemiological point of view.”59 On

April 30, 1962, the PRU memorialized its findings,

recording mesothelioma numbers that startled

researchers: “[a]n alarmingly high number of cases

with mesothelioma of the pleura has been discovered

in people who live or have lived in the North Western

Cape and that there is evidence to suggest that this

condition is associated with an exposure to asbestos

dust inhalation which again need not be industrial.”60

In other words, mesothelioma occurred not only in

miners, but also in the general population that lived

near the asbestos mines.61 The investigators revealed

that they were aware of 90 cases of mesothelioma, but

they theorized that more cases existed that the study

failed to capture due to its methodology.62

The preliminary results were equally alarming to

Cape. Soon after Cape saw the October 1961 PRU

results, it dispatched Dr. Smither to South Africa for

an “investigation” even before the more detailed April

1962 report was circulated. The Receiver has located

the 48-page report that Dr. Smither prepared for the

company on his return from South Africa.63 The report

opens:

59

Id.

60

PRU Preliminary Report (April 30, 1962).

61

Id.

62

Id.

63

Smither, Visit to South Africa (August 1962).

90a

[a]s a result of a decision taken at a meeting

between Dr. R Gaze, Dr. J McKeurtan and

myself at Park Street, London, on 31st

October 1961, I was sent by the company to

South Africa. My terms of reference were to

study all aspects of mesothelioma and

asbestosis reported in South Africa on medical

matters, and generally to learn as much as

possible about conditions in the industry in

that country.64

The Smither report is notable for several

conclusions, but a few stand out. Dr. Smither (a

physician) recommended that, despite the “alarming”

conclusions that the PRU researchers had come to:

[m]y recommendation would be that the

company should not support any future wide

ranging survey of the industry with a view to

discovering

either

asbestosis

or

mesothelioma. The reason for this is that the

company is well aware of the problem and has

some idea of its extent.65

At that point, Cape’s support for the PRU ended.66

Smither aligned with Dr. McKeurtan—the top

executive over Cape’s mining subsidiaries in South

Africa—who was “vigorously attacking” the

conclusions of the PRU researchers.67

Another document the Receiver discovered shows

the scope of Cape’s assault on the PRU study. In a

64

Id. at 2.

65

Id. at 34.

66

See, e.g., id

67

Id. at 35.

91a

letter from L.G Walters, the Director of the PRU, to

M. F. Baxter at the South Africa Council for Scientific

and Industrial Research, Walters addresses a

memorandum of the “asbestos producers committee.”68

Cape was a member of that committee.69 Walters

quotes from the “committee memorandum” in which it

critiques the PRU investigation: “The whole survey

appears to have been undertaken with the underlying

object of implicating crocidolite asbestos as being

directly responsible for the comparatively rare tumor

known as mesothelioma of the pleura.”70

Walters noted that Smither identified 10

additional cases of mesothelioma during his visit to

the Cape Prieska mine during his visit.71 Smither’s

48-page report notes that a local doctor named “Van

Rooyen” was caring for “10 cases among colored people

of what he now calls the ‘Prieska picture.’”72 Smither

advocated for removing the patients to Johannesburg

for “investigation.”73 Dr. Smither’s recommendation

was not medical or altruistic. He wrote in his Report

that:

the advantage from the standpoint of the

company is that these cases will be treated as

a group, will be removed from the area of the

68

Letter from Walters to Baxter (July 19, 1962).

69

Id. at 2 (the letter reveals Cape’s membership by noting that

the committee “recently brought their London Branch Medical

Office (Dr. Smither) to this country to investigate the problem on

their behalf.”).

70

Id. at 2.

71

Id.

72

Smither, Visit to South Africa (August 1962) at 11-12.

73

Id.

92a

conflict, if one may call it that, and will be

taken some hundreds of miles away.74

Smither went on to note that this move would bring

“less attention from the politicians.”75 Dr. Smither

was covering up the health hazards of Cape’s asbestos

by hiding Cape’s victims.

Dr. Matthys van Rooyen—the local Prieska doctor

caring for 10 mesothelioma patients—was deposed in

1996.76 He testified that Cape periodically dispatched

“executives” and doctors (presumably, Smither) from

London to visit asbestos mines in South Africa.77 Dr.

Van Rooyen testified that he tried to warn Cape about

the dangers of asbestos exposure, but met a chilly

response: “I experienced opposition[ ] . . . whenever we

talked about asbestos as a danger, people saw us as

dangers . . . we had a lot of opposition from these

people. But very definitely, from the chief executives

of Cape Blue Mines.”78

Dr. Van Rooyen’s interest in mesothelioma began

in 1957 then he wrote an article discussing two

mesothelioma cases for the South African Medical

Journal, explicitly attributing them to Prieska’s blueasbestos dust.79 He then screened the community—

miners and civilians alike—by taking thousands of

74

Id. at 13.

75

Id.

76

Deposition of Dr. Matthys van Rooyen, In re Asbestos

Personal Injury Cases, Arrington Lead, No. 93-9-114 (Ms. Cir. Ct.

Jones County, 1996).

77

Id. at 135.

78

Id. at 116.

79

Id. at 24.

93a

chest X-rays and even persuaded the Pneumoconiosis

Bureau to dispatch a mobile radiography unit to

Cape’s Prieska mine.80 Determined to force action, he

armed South African parliamentary member A.H.

Stander with data and a speech describing Cape’s mill

as “spraying asbestos fiber” over the town, thus

placing the issue before Parliament.81

These

uncompromising interventions—and the frank

discussions he had with Cape managers—made him a

“pest,” as Dr. Van Rooyen described the situation, in

Cape’s eyes.82

Cape retaliated against Dr. Van Rooyen.

According to Van Rooyen’s sworn deposition

testimony, Cape threatened his livelihood:

Q:

Was there any discussion about other

doctors coming to Prieska?

A:

That was one of the threats used very

regularly. Now, why do I call it a

threat? If you live in an area where you

have a population of 16,000, there are

two doctors there. They are still fit, and

they can work hard. They do work.

And if you take away a quarter or more

of their practice by introducing a doctor

or more in that area, you can definitely

break them. And that is -- so that

threat was used to me, personally, on

80

Id. at 38, 63.

81

Id. at 11-12, 30.

82

Id. at 40, 57.

94a

more than one occasion. I don’t accept

it nicely, and I still don’t.

Q:

Did you have occasion to specifically

have a conversation with one of the

Cape executives regarding the effect of

this discussion would have on the

company?

A:

Yes. . . . I remember distinctly that this

was treated in a very superficial way.

And the chap . . . he said that with our

directors in London earning a million a

year, do you think they would listen to

you?83

The final PRU report was published 1964 but it

was not circulated outside of the PRU and the mining

companies.84 For reasons unknown, but perhaps to

protect powerful industrial mining and economic

interests in South Africa, the final report also said

little about mesothelioma. Whatever the reason for

this extremely limited circulation, Cape had copies of

the final report and the preliminary reports, but never

mentioned them publicly, and certainly never

breathed a word of it to its U.S. customers. In fact,

Cape disseminated exactly the opposite story. While

it is true that the PRU was aware of what the

mesothelioma survey revealed, and did not publicize

the results, the PRU also was not in the business of

selling raw asbestos for profit around the world. Cape

certainly was. The PRU report was not discovered for

20 years until an enterprising journalist researching

83

Id. at 41.

84

Letter from Walters to Baxter (July 19, 1962).

95a

the Cape story for a documentary located it in an

archive in South Africa.

Dr. Smither returned from South Africa on June

30, 1962.85 Less than two weeks later, on July 12,

1962, Drs. Smither and Gaze attended a meeting in

London of the Asbestosis Research Council (ARC).86

The ARC was an industry group founded by Cape and

another mining and asbestos products company,

Turner & Newell.87 The ARC sponsored research into

asbestos disease and had a hand in shaping final

reports given its funding of the studies.88 Scientists

and physicians from Queen’s College in Cambridge,

Reading University, and Cambridge University, and

some industry representatives attended the July 12

meeting.89 The Receiver located the 6-page detailed

memorandum reporting the detailed minutes of the

meeting.90 As this group met to discuss asbestos

disease, Dr. Smither and Dr. Gaze remained silent

and reported nothing about the PRU study, nor even

that Dr. Smither just returned from a three-week trip

to South Africa to investigate mesothelioma in the

mines.91

85

Smither, Visit to South Africa (August 1962) at 42.

86

ARC-19th meeting (July 12, 1962).

87

See generally Geoffrey Tweedale, Science or Public

Relations? The Inside Story of the Asbestosis Research Council,

1957–1990, 38 AM. J. INDUS. MED. (2000).

88

Id. at 723-29.

89

ARC-19th Meeting (July 12, 1962).

90

Id.

91

See generally id.

96a

i.

Cape continues selling asbestos to the

U.S. market through a fake

Lichtenstein company – evading

liability but continuing to profit.

As the Park Plaintiffs presented in their

Appointment Motion, when Cape closed NAAC, it did

not stop selling asbestos in the United States. The

Receiver presented additional facts in its Report

detailing the scheme to conceal its identity to U.S.

litigants and continued selling the same South

African asbestos fibers with the use of a Lichtenstein

pass-through entity, Associated Minerals Corporation

(“AMC”), to the same list of customers in the U.S.

market. Anthony Penna, in-house counsel for Cape,

referred to this scheme, which also included rebranding the entire NAAC operation as an

independent entity under a new name, Continental

Products Company (“CPC”), as only “a difference in

form.”92

Cape disguised this scheme even from NAAC’s

then-president, Charles Morgan, when Penna asked

Morgan to consider opening CPC. While Cape averred

that Morgan was well aware of the connection to

92

Testimony

of

A.

Penna,

Mar.

14,

1988,

at

Cape_Receiver_00132247 (“It was a difference in form; and, as I

have said, the Morgan company, new company, CPC, did carry

on very much the same role that NAAC had carried on in trading

terms.”); id. at Cape_Receiver_00132236 (“Our mining

companies wished to continue selling asbestos in the United

States, yes. There needed to be an organization which could

liaise with the customers.”), id. at Cape_Receiver_00132247

(“Certainly, Howard Tanner, the Sales Director of the South

African mining companies was extremely keen to ensure that

sales to America, that is there could be some continuation of sales

to American customers.”).

97a

Cape,93 in reality, the true scheme was on a need-toknow basis, and Morgan did not need to know

anything. He was simply Cape’s U.S. puppet. Morgan

testified that Penna “said he was the attorney

representing Associated Minerals Corporation.”94

Morgan testified that he did not know that Penna was

contacting him on behalf of Cape.95 He did not know

who owned AMC, and no one had suggested to him

that there was a relationship between Cape and it.96

Once Morgan agreed to establish CPC, Cape’s

lawyers at the Lord Bissell firm in Chicago drew up

the incorporation documents.97

Rather than

93

Id. at Cape_Receiver_00132215 (“Q. And also the reason why

you did not wish the new arrangements [related to Cape’s

involvement in setting up CPC] to become publicly known? A.

Yes, I did. I think that it probably omitted one additional reason

– that certainly Mr. Morgan in his new entity would not have

wanted it to be disclosed that he was dealing with a company

that was still related to Cape.”).

94

Deposition of C. Morgan,

Cape_Receiver_00096003.

Feb.

20,

1981,

at

95

Id. at Cape_Receiver_00096063-4 (“Q. When Tony Penna

contacted you on behalf of the Lichtenstein corporation you

knew, did you not, in fact he was actually contacting you on

behalf of Cape Asbestos? A. No, Sir, I did not know that.”).

96

Id. at Cape_Receiver_00096064 (“Q. Do you know who owns

the Lichtenstein corporation? A. No, Sir. Q. Has anyone ever

suggested to you that Cape Asbestos has some ownership in the

Lichtenstein corporation, Associated Minerals Corp.? A.

Definitely not. Q. Has anyone ever suggested to you that any of

the principals of Cape Asbestos had some interest in that

Liechtenstein corporation? A. No, Sir.”).

97

Id. Cape_Receiver_000 95988 (“Q. Who drew the Articles of

Incorporation? A. Mr. Max Meyer. At least I asked him to do this

work for me. Who actually did the work I couldn’t say.”).

98a

establishing a direct connection between the newly

formed CPC and a Cape-named company, Penna

spearheaded the creation of a Liechtenstein company,

AMC, a seemingly unrelated entity, which was in

truth an Oppenheimer subsidiary.

As Penna

described, “everyone was concerned whether they

were mining companies or Cape Industries or any

company that was a party to these sales should not by

its actions put either the mining companies or Cape at

risk.”98 “The Lichtenstein company was a separately

constituted company but it certainly had no direct

employees of its own. . . . It was primarily an invoicing

company.”99

Cape’s involvement was pervasive.

Confronted with evidence, Penna was forced to admit,

“Yes, it seems to be contemplated that Cape Asbestos

Fibres would subscribe the initial capital.”100

Even before NAAC closed, Morgan reached out to

customers to let them know of the formation of CPC,

thereby ensuring a seamless sales transition between

the companies.101 To ensure the success of the new

98

Cape_Receiver_00132246.

99

Id. at Cape_Receiver_00132239-40.

100

Id.

101

Deposition of C. Morgan, Feb. 20, 1981, at

Cape_Receiver_00096022. (“I advised them that North American

Asbestos was being liquidated, it was no longer to be in the

position to supply them with fiber, I had made a connection

where I thought I could supply them with fiber, I would like their

consideration very much.”); Ex. 81, Deposition of C. Morgan, Feb.

20,

1981,

at

Cape_Receiver_00096003,

Cape_Receiver_00096063-4 (“Q. When Tony Penna contacted

you on behalf of the Lichtenstein corporation you knew, did you

not, in fact he was actually contacting you on behalf of Cape

Asbestos? A. No, Sir, I did not know that.”); id. at

99a

venture, Morgan testified that CPC received a

$12,000 check “[c]are from North American Asbestos”

to start the company.102

CPC’s offices were in the same building as NAAC

had previously had its offices: “North American

Asbestos was on the 29th floor and Continental

Products Corporation took a lease on the 12th floor.”103

All of the NAAC filing cabinets that had been on the

29th floor were moved to the 12th floor, and all of the

NAAC employees—Joan Holtze, Jean Canzoneri, and

Sue Purrington—moved with Morgan to CPC.104 CPC

also took over the NAAC employees’ pension plan.105

Joan Holtze testified that she sat at the same physical

desk at CPC as she had when she worked for NAAC.106

In this way, Cape hoped to escape liability, but

continued selling asbestos fibers to virtually the same

contact list using a shell game and companies in

Liechtenstein and South Africa to conceal any

connection between it and the United States.

Cape_Receiver_00096064 (“Q. Do you know who owns the

Lichtenstein corporation? A. No, Sir. Q. Has anyone ever

suggested to you that Cape Asbestos has some ownership in the

Lichtenstein corporation, Associated Minerals Corp.? A.

Definitely not. Q. has anyone ever suggested to you that any of

the principals of Cape Asbestos had some interest in that

Liechtenstein corporation? A. No, Sir.”).

102

Id. at Cape_Receiver_000 96000.

103

Id. at Cape_Receiver_00095991.

104

Id. at Cape_Receiver_00095992-3.

105

Id. at Cape_Receiver_00096066.

106

Deposition

of

J.

Holtze,

Cape_Receiver_00097838-9.

Apr.

12,

1979,

at

100a

A.R. Sarabia wrote a memorandum contained in

the Lord Bissell client file to memorialize the new

sales arrangements for the sale of Cape asbestos to

the United States from Lichtenstein through CPC.107

On June 26, 1978, Meyer wrote Penna advising that

the Cape Mines would be protected from default

judgments with the Lichtenstein company “between

them and any operations in the United States.”108

Penna described the Liechtenstein company—which

had no employees and was just an invoicing entity, as

being camouflaged to disguise from “plaintiffs in

future U.S. asbestos litigation” (Cape’s words) the fact

that the company was still selling asbestos in this

country. On July 29, 1980, Mr. Meyer wrote Richard

Gaze at Cape advising on a variety of issues, but in

closing Meyer wrote on Lord Bissell letterhead: “My

deposition was taken last Thursday in the four

Bloomington cases. I guess the main thing that came

out was that I know nothing or that I can’t remember

anything.”109

107

Memo to NAAC File re Liquidation of NAAC (April 7, 1978).

108

Letter from M. Meyer to A. Penna (June 26, 1978). Meyer

was in the thick of the plan to create CPC and in fact formed the

corporation, according to Gerry Morgan, the President of NAAC

at the time. See Dep. of C. Morgan May 18, 1982 at 39. In a memo

dated Dec 19, 1983, a Lord Bissell Partner inquired of Meyer

about his formation of CPC in 1978 but noted that there were no

billing records at LBB relating to this work, Letter from Ingersoll

to Meyer (Dec. 19, 1983).

109

Letter from M. Meyer to R. Gaze (July 29, 1980).

101a

iii.

More recent activities of Cape,

including its activities parallel to this

action, demonstrate continued moral

fraud

Cape maintained its position of not appearing in

U.S. courts when a complaint was filed against it in

Park. Rather than completely ignoring the U.S.

proceedings, however, Cape engaged in a course of

conduct to attempt to weaken the effectiveness of this

Court’s appointed receiver – outside of this Court.

First, Cape instituted a Part 8 Proceeding in the

High Court of E ngland and Wales against the

Receiver personally to seek injunctions against his

further work as the court-appointed receiver of Cape

in South Carolina.110

In support of its Part 8

Proceeding, Cape filed a series of sworn statements of

Ran Oren111 and Cape’s U.K. lawyers. These sworn

statements set forth Cape’s position on the facts that

would require the E nglish court to enjoin Mr.

Protopapas from acting as the Receiver for Cape in

South Carolina. This one-sided presentation included

many incomplete statements as to the work of the

receiver and this Court, including at least one

110

While the Third-Party Defendants assert that improper

service of Cape renders the Cape receivership an absolute

nullity, Cape’s activities in foreign courts, including the Part 8

Proceeding in England and a parallel proceeding in France, make

clear that Cape is fully apprised of this action, including all

filings made in these proceedings, which are described in filings

in the foreign proceedings, including in affidavits by Cape’s

director.

111

Mr. Oren is the sole director of Cape Intermediate Holdings

Limited and also serves as CEO of Altrad Investment Authority

S.A.S, a third-party defendant in the Receiver’s declaratory

judgment action in the Tibbs asbestos personal injury action.

102a

incomplete statement from this Court during a

hearing in September 2024. In his witness statement,

Ran Oren stated to the U.K. Court:

It bears mentioning that at [the September

24, 2024] hearing, Toal J indicated her

expectation that the Receiver’s role would be

“to marshal the assets, including the bank

accounts” of the Cape Group. I have set out at

length in Section I of Oren 1 the serious

consequences this might have on the Cape

Group, for example, under the power to obtain

the financial records belonging to or

pertaining to the Claimants, the Receiver

could make direct contacts with the

Claimants’ bankers.

That could cause

disruption and interference in the Claimants’

relationships with their banks, as it would be

very difficult to control how that information

was used by the Receiver.112

This Court did not state in the September 24

hearing that the Receiver should gain control of and

use the Cape bank accounts. Mr. Oren took this

Court’s statements regarding the broad statutory

authority given to receivers in South Carolina out of

context. In the hearing, this Court engaged with

counsel for Anglo American and De Beers (defendants

in the Receiver’s third-party declaratory judgment

action in Tibbs, with whom the Receiver has recently

resolved his claims) regarding the authority of the

receiver to obtain documents from various sources

relevant to the Cape receivership. The exchange

occurred in the context of counsel noting that the

112

Ran Oren Witness Statement 2 at ¶ 50 (emphasis in original)

(citations omitted).

103a

Court had granted the Receiver the power to review

and obtain documents from any financial institution,

bank, credit union, or savings and loan, among other

entities.113 The Court responded that finding all

relevant documents is not uncommon, and continued

as follows:

The Court:

But these corporations are alleged to

be part of a single group that is

financially responsible for the supply

to places in North and South Carolina

of asbestos that harmed you. And

part of what the receiver of the

corporation is to do is to verify

that by looking at financial

records.

The first receivership I was ever

involved in was as a practitioner. . .

when we put [a life insurance

company] into a st

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