Appendix — Keene Corp. v. Lindsay

Supreme Court brief1992

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TABLE OF CONTENTS

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API

PAGI

U.S. Constitution, amendment I . Pes l

U.S. Constitution, amendment XIV, $1 ..... l

Harris County, Texas, District Court Order of

RE. Ss ME boa bo kee ae ee ake - 2

Transcript of Proceedings of March 24, 1992 in

Harris County, Texas, District Court.... 3

Harris County, Texas, District Court Order of

a ee a.) | errr errr ees 1]

Opinion of Texas Court of Appeals overruling mo

tion for leave to file mandamus petition, over

ruled, March 27, 1992, opinion filed Apmil 2,

1992 oer er 12

Opinion of Texas Court of Appeals overruling peti

tion for leave to file writ of prohibition, over

ruled March 27, 1992, opinion filed April 2,

aa a te aa eet ee oe ere “AAS 14

April 15, 1992 Order of The Supreme Court of

Texas dismissing as moot motion for leave to

file petition for writ of mandamus ..... 16

Keene’s motion addressed to The Supreme Court

of Texas for rehearing of motion for leave to

file petition for writ of mandamus......... 18

May 20, 1992 Order of The Supreme Court of

Texas overruling Keene’s motion for rehearing

of motion for leave to file petition for writ of

ET eee err Tere Tere Tere 39

Advertisements previously published by Keene

TEE 5 (cas s-ekigccnca ea cccne caveats es 4]

Opinion of Court of Special Appeals of Maryland,

in Keene Corporation v. Abate, et al., opinion

ae: ner reer re 70

App.

UNITED STATES CONSTITUTIONAI

PROVISIONS INVOLVED

Amendment |]

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof: or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to peti

tion the Government for a redress of grievances.

Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro

tection of the laws.

Vé

advertisement which

ie) aced In the Houstor (Chro?

inty a jury was deliberating in a tma! in whic!

efendant Keene { Orporation Was a Party It is theref

(\1 EL y ‘ET a» >} ’ 4 ail

MIRDERED, ADJUDGED AND DECREED that Ke

poration shall not advertise regarding asbestos |i

} nanv ne : y ihliched in Harr ( nt |"

Nn any newspaper pudusned In Marris Vounty, iL

nt the verdict of the jury in the above-referenced ca

received bv this Court

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med Plaintiffs

7 ai

Wspapers WN

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per, on March

rary T ’

ALALIOL LL

tising regarding asbestos lit

tached as Exhibit ‘‘A’’ to th

Keene Corporation. Fron

rdict * the

e Defendant Kee

of the jury is received by this C

1e Corporation is prohibited fron

tigation in any

ure published in Harns County, T:

this Order is a cor

a COD )

the Defendant Keene Corpora

e, a Harris County N

5, 1992. On that 1

n same day in Harris

t ‘ry a 7 mnrry TY Y Tet y rY\TOCOrnNDpD Ts

and S., IN ET Al ROTH JUDICIAL DISTRI

STATEMENT OF FACTS

EXCERPT OF PROCEEDINGS

MARCH 24, 1992

BE IT REMEMBERED that the above entitled and num

bered cause came on for Trial before said Honorable

Court, Tony Lindsay, Judge Presiding, at the Civil Courts

Building, 301 Fannin, Houston, Texas, on the 24th day

f March, 1992, and the following proceedings were had

APPEARANCES

FOR PLAINTIFFS JIMMY R. BLEVINS AND

SANDRA R. BLEVINS, ET AL

MR. JOHN EDDIE WILLIAMS

MR. ERIC BOGDAN

Umphrey, Burrow, Williams & Baile)

8441 Gulf Freeway

Suite 600

Houston, Texas 77017

MR. JOSEPH COX, JR

Ness, Motley, Loadholt, Richardson & Pool

151 Meeting Street

Suite 600

P.O. Box 11387

Charleston, South Carolina 29402

MR. CAMERON WADDELL

Ness, Motley, Loadholt, Richardson & Pool

2202 Jackson Street

P.O. Box 365

Barnwell, South Carolina 29812

FOR DEFENDANT KEENE CORPORATION

MR. JAMES H. POWERS

MS. GWEN FROST

Roberts, Markel, Folger & Powers

1010 Twenty-Four, Greenway Plaza

Houston, Texas 77046

FOR DEFENDANT PITTSBURGH-CORNING

MR. JOHN H. CUMMINGS

Hassard, Bonnington, Rogers & Hube

50 Fremont Street

Suite 3400

San Francisco, California 94105

MR. NICHOLAS S. BALDO

Weller, Wheelus & Green

P.O Box 350

Jeaumont, Texas 77704-0350

THE COURT: With regard to Mr. Powers’ motion, |

haven't seen a copy of it yet, but I assume that M)

Williams has.

MR. POWERS: Here is a copy, Your Honor

THE COURT: Okay. What is Mr.—who wants to reply

his motion? Anybody?

MR. WILLIAMS: I guess, well, Judge, it’s a motion for

reconsideration and you know-

THE COURT: The only difference that I see now is

that he gave me a copy of about six cases that I took

home last night. I don’t know if—I assume they are the

same ones that you have got.

MR. POWERS: Yes, ma’am. They are all the ones listed

in the motion.

THE COURT: So have you read or referred or

MR. WILLIAMS: I am not had an opportunity to read

and analyze those cases, so I am kind of

THE COURT: Okay. What it seems to me like is that

we probably have an order that is broader than it has

to be to do what I wanted to do to begin with. The order

does not prevent—regardless of what my view may De

on whether they should or not, it does not prevent Mr

Keene’s client from talking to the news media, it does

not prevent a news article, does not prevent them going

and talking to groups or whoever this is they want to

talk to. They can even go door to door if they want

At least that’s not prohibited by the order

MR. WILLIAMS: But not to any of our 138 jurors

THE COURT: Well, yes. They really get in trouble if

they go to them. But it was never particularly my inten

tion to prohibit them from running an advertisement In

the paper which would say we sold asbestos products In

such and such a year and asbestos causes cancer and we

contend this or that with regard to whether it does or

doesn’t cause cancer or whatever.

What my intention was is to prohibit any inflammatory)

advertisement directed at jurors on the subject of at

torneys fees and punitive damages. Like the ad that your

client ran when the jury was deliberating in Judge Wood's

court.

Now, I don’t know if to narrow that order, if it would

be appropriate to say that they are prohibited from ad

vertising regarding asbestos litigation, except for facts in

contention that have been brought out in this trial or have

been brought out in some other trial. I don’t know how

to—you are not going to get it out in trial, I assume, that

legal fees are up, up and away. If you put it that way,

would that cover what we are really wanting to cover?

MR. WILLIAMS: Yes, Your Honor.

THE COURT: Okay. Then draw me up another order

MR. POWERS: Your Honor, I still think that the court

t }

would be exceeding its power in making any order that

App. 6

restrains Keene from speaking, based on the content of

tne speech before the speech is uttered and I think that’s

the thrust of all of the cases that both our Supreme

Court, Texas Supreme Court and the United States Su

preme Court, that common thread runs throughout all of

the first amendment cases that pnor restraints are just

heir face invalid. And there hasn't been any show

ing—I know the court’s read Nebraska Press Association

vs. Stewart because I gave it to you yesterday and |

think that case is very instructive. In that case, if the

lls, the State court in Nebraska prohibited the

newspapers from talking to the prosecutors in a criminal

case. And Nebraska Press Association took it up. And the

Supreme Court paid particular attention to the fact there

had been no showing at the trial court level that other

means of protecting the fairness of the trial, which was

the court’s purpose in that case in entering the gag order

in the first place that no alternative measures had been

examined and found wanting.

And one of the ones that they suggested would take

care of the problem would be for the court to instruct

the jury on whatever issue it was that would be subject

to the news articles and I know that you, Your Honor

when you gave this jury their instructions, told them not

to read anything, not to discuss anything, not to look at

anything in the newspaper. And I think that instruction,

we have to presume the jury’s going to follow. And even

if the court gives that instruction on a periodic basis, like

perhaps every day, if the jury follows the court’s instruc-

tions, then our advertising which we are directing at the

public at large and not at any specific jury, then our ad-

vertising—we can get our purpose served and if the court

can get its purpose served by insulating this jury from

whatever effects the ad may have on their deliberations,

App 7

then I think that’s the proper way to do it under the first

amendment.

If it turns out—if the plaintiffs or the court is able to

establish that that, in fact, is not sufficient to protect the

integrity of the trial, then I think maybe we readdress

the matter on proper motion and examine it. And jus

look at the issue again.

But I think any prior restraint of Keene’s speech 1s in

permissible under the First Amendment, and that’s tl

basis of our motion.

THE COURT: Okay. If they hadn’t already managed

to speak that speech recently and if they were being re

strained for a very long time, I probably would agree with

you. Considering that they have already made the speech

to this audience and that they are only being restrained

for something like two and a half to three weeks, I think

that their interest in being able to inflame the jury pool

is so little that it doesn’t keep us from entering this order.

But I do want a less restrictive order.

MR. WILLIAMS: Sure, Judge. We must always bal

ance—the First Amendment, of course, is important but

also the amendment that gives us the right to a trial by

jury is also of equal importance and found in the same

Constitution. And must always balance things. It always

comes down to balancing. That’s what we are just ask-

ing the court to do. I think the court struck a very good

balance.

MR. POWERS: One of the problems with what you

said, I guess, is that—well, in addition to the fact tha

I disagree with everything you said, but one of the spe-

cific factual problems with what you said is that it’s true

that the court’s order is only for the pendency of this

trial. That is even—if it’s just while this jury is deliber

Ylal. Nat is even-—lLu il S US VM Lilt LiLiS jul 1S ae LIVE!

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uring our pre-triai wnen we

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ating. But if you will

App. 8

first discussed this issue, you yourself recognized that we

are subject to trial settings virtually every week in Har-

ris County. It’s conceivable, and I think likely, if you

enter this order, that other courts may do the same thing

and Keene will be faced with the prospect of never be-

ing able to express its views on the affect of asbestos liti-

gation on our judicial system and our economy so long

as there is a trial setting in Harris County because, for

example, I have been in trial almost every day in an as

bestos case since February 3rd of 1992 and had such an

order been entered on February 3rd, 1992, it’s now March

24th, isn’t it? And Keene would not yet be able to ex

press its views, would be facing probably another week

r so of being unable to express its views and I know

that I am set for trial sometime in the middle of Apmil

in Judge Cochran’s court. So I think there is a very real

danger that this type of order is going to completely pro-

hibit Keene from expressing any views on asbestos litiga

tion.

THE COURT: Are you all set

up at the end of this week. Are you all set next week

}

my two weeks will be

for asbestos cases’

MR. WILLIAMS: I don’t believe so.

MR. POWERS: Not in Harris County as far as | know

THE COURT: So the next setting is Judge Cochran’s

court in the middle of April?

MR. COX: It’s the 27th.

THE COURT: I’m only talking about Harris County.

MR. POWERS: I know. But you are not leaving us

much of a window. There is nothing to keep you from

advising during those two weeks after my case ends and

hers begins—

THE COURT: And if you are so inflammatory, I don’t

know what she is going to do with you. But—

MR. POWERS: Judge, I don’t think we are inflam-

matory, No. 1.

I don’t know what the court’s ruling is. I know what

the court’s intention is.

THE COURT: My ruling is they have got to give me

a less restrictive order.

MR. POWERS: Does that mean this order is still in

effect?

THE COURT: For the moment, yes.

MR. POWERS: So you are denying my motion:

THE COURT: Sort of.

MR. POWERS: I don’t mean to quibble but, Judge, |

think I told you when they first asked for this, we would

take some action and just so the court knows, I intend to.

THE COURT: Well, I am granting your motion but the

order’s still in effect until | get the other one which |

assume will be probably about the end of the day. But

I am granting the motion in part, obviously.

MR. POWERS: I understand.

THE COURT: You guys go to lunch.

(Court in recess).

(END OF EXCERPT.)

STATE OF TEXAS

Ss.

COUNTY OF HARRIS)

I, LaVearn Ivey, Certified Shorthand Reporter, hereby

certify that I attended the proceedings in the above num

bered and styled cause.

I further certify that I reported same in shorthand and

later reduced it in writing.

I further certify that the foregoing 15 pages contain a

true and accurate representation of my shorthand notes

so taken as aforesaid to the best of my knowledge and

belief

WITNESS MY HAND this the 26th day of MARCH, A.D

1992

s/ LAVEARN IVEY

Certified Shorthand Reporter

301 Fannin, Room 512

Houston, Texas 77002

221-5790

Certificate No. 822

Expires 12-31-92

App. 11

NO. 84-69709

IN THE

DISTRICT COURT OF

BENJAMIN C. WILLIAMS

AND NEOMA WILLIAMS

LO? WP Mm

HARRIS COUNTY, TEXAS

g 1I51ST [sic]

AC&S, INC. ET AI 8 JUDICIAL DISTRICT

ORDER

BE IT REMEMBERED that on March 16, 1992 com-

menced the consolidated trial in the 280th District court

of the above-named Plaintiffs against the Keene Corpora-

tion. From this day until the verdict of the jury is re-

ceived by this Court, the Defendant Keene Corporation

is prohibited from advertising regarding punitive damages

and attorney’s fees in reference to asbestos litigation, in

any newspapers which are published in Harris County,

Texas. Attached as Exhibit ‘“‘A”’ to this Order is a copy

of an advertisement which the Defendant Keene Corpora-

tion placed in the Houston Chronicle, a. Harris County

Newspaper, on March 5, 1992. On that same day in Har-

ris County a jury was deliberating in a trial in which the

Defendant Keene Corporation was a party. It is therefore,

ORDERED, ADJUDGED AND DECREED that Keene

Corporation shall not place advertisements regarding puni-

tive damages and attorney’s fees in reference to asbestos

litigation, in any newspaper published in Harris County,

Texas until the verdict of the jury in the above-referenced

cases is received by this Court. The ORDER of MARCH

16, 1992 prohibiting KEENE from advertising is WITH-

DRAWN.

SIGNED the 24th day of March, 1992.

s/ Tony LINDSAY

JUDGE PRESIDING

T 4

im «ne

Fourteenth Court of Appeals

NO. €14-92-00312-CV

EENE CORPORATION, Relato

THE HONORABLE TONY LINDSAY, JOHN EDDIE

WILLIAMS, THE ATTORNEYS OF THE LAW

[RM OF UMPHREY, BURROW, WILLIAMS, AND

BAILEY and THE ATTORNEYS OF THE LAW FIRM O!

NESS, MOTLEY, LOADHOLT, RICHARDSON

AND POOLE, Respondents

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

OPINION

On March 16, 1992, respondent, the Honorable Tony

ordered that relator is prohibited from advertis

1? 9)

Lindsay, L

ing regarding asbestos litigation in any and all newspapers

that are published in Harris County, Texas.

Relator asks that we order Judge Lindsay to vacate

that order. We decline to do so and overrule the motion

o file petition for writ of mandamus

ror teave

PER CURIAM

Motion for leave to file Petition for Writ of Mandamus

Overruled March 27, 1992 and Opinion filed April 2, 1992.

Panel consists of Justices Junell, Robertson, and Draughn

(Justice Robertson not participating).

Do not publish - TEx. R. App. P. 90

NO. €14-92-003809-CYV

KEENE CORPORATION, Relator

THE HONORABLE TONY LINDSAY, JOHN EDDII

WILLIAMS, THE ATTORNEYS OF THE LAW

FIRM OF UMPHREY, BURROW, WILLIAMS, AND

SAILEY and THE ATTORNEYS OF THE LAW FIRM O}

NESS, MOTLEY, LOADHOLT, RICHARDSON,

AND POOLE, Respondents

ORIGINAL PROCEEDING

WRIT OF PROHIBITION

OPINION

On March 16, 1992, respondent, the Honorable Ton)

Lindsay, ordered that relator is prohibited from advertis

ing regarding asbestos litigation in any and all newspapers

that are published in Harris County, Texas.

Relator, in cause no. C14-92-00312-CV, asks that we

order Judge Lindsay to vacate that order. In this action,

relator asks that we prohibit respondents, John Eddie

row, Williams, and Bailey and the attorneys of the law

firm of Ness, Motley, Loadholt, Richardson, and Poole,

from requesting such an order in future asbestos litiga-

Having overruled the motion for leave to file writ of

CONSIS|

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 7871]

John T. Adams, Clerk

Apri lo, 1992

Mr. James H. Powers Mr. Kenneth C. Baker

Roberts, Markel, Folger Roberts, Markel, Folge

& Powers & Powers

Weslayan Tower, Suite 1010 Weslayan Tower, Suite

24 Greenway Plaza 24 Greenway Plaza

Houston, TX 77046 Houston, TX 77046

Mr. John E. Williams, Jr. Mr. R. Lyn Stevens

Umphrey, Burrow, Williams Weller, Wheelus & Gre

& Bailey 550 Fannin Street

8441 Gulf Freeway, Suite 600 5th Floor, Petroleum Ti

Houston, TX 77017-5001 Reaumont, TX 77704

Ms. Melinda L. Wesner

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite 600

Houston, TX 77017-5001

RI Case No. D-2264

Style: KEENE CORPORATION

\ THE HONORABLE TONY LINDSAY, JUDGI

y°

LO1O

Ee}

we!

Today, the Supreme Court of Texas dismissed as moot

to file petition for writ of man

relator’s motion for leave

damus in the above styled case. (Chief Justice Phillips not

+++ ’

SILUINMN

ANCA E. MORIN

App. 18

IN THE TEXAS SUPREME COURT

KEENE CORPORATION,

Relator

HONORABLE TONY LINDSAY

Respondent

RELATOR’S MOTION FOR REHEARING

Respectfully Submitted,

ROBERTS, MARKEL, FOLGER &

POWERS

By: JAMES H. POWERS

KENNETH C. BAKER

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, Texas 77046

(713) 840-1666

ATTORNEYS FOR RELATOR

App. 19

CONTENTS

Sie Ol» ya rr [19]

LIST OF AUTHORITIES .. [20]

EXHIBITS ..... eo mch as 26)

App 20

LIST OF AUTHORITIES

Nebraska Press Ass Stuart, 427 U.S. 5389

UND RELA Sa ee sabeaseceuameron 23, 25]

State Lodge, 608 S.W.2d 910 (Tex. 1980)... [23]

franiar Mus m” Ora? v. €C ty of San Antonio

615 S.W.2d 202 (Tex. 198] [23]

App. 2]

IN THE TEXAS SUPREME COURT

KEENE CORPORATION.

Relator

HONORABLE TONY LINDSAY,

Respondent

RELATOR’S MOTION FOR REHEARING

Respectfully Submitted.

ROBERTS, MARKEL. FOLGER &

POWERS

By: JAMES H. POWERS

KENNETH C. BAKER

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, Texas 77046

(713) 840-1666

ATTORNEYS FOR RELATOR

TO THE HONORABLE JUSTICES OF SAID COURT:

Keene Corporation files the following Motion for Rehear-

Ing:

On April 15, 1992, this Court dismissed as moot Rela-

tor’s Motion for Leave to File Petition for Writ of Man-

damus. This court erred in dismissing Relator’s Motion

for Leave to File Petition for Wnt of Mandamus because

the issues presented therein are capable of repetition, yet

evading review and therefore are not moot

The name and addresses of the attorneys of record for

the parties to the trial court’s order are:

Mr. James H. Powers

Roberts, Markel, Folger & Powers

24 Greenway Plaza

Houston, Texas 77046

Mr. John E. Williams

Umphrey, Burrow, Williams & Bailey

8441 Gulf Freeway, Suite 600

Houston, Texas 77017

Mr. Frank Bean

Bean and Manning

1500 San Felipe Plaza

5847 San Felipe Road

Houston, Texas 77057

The remaining party to the trial court’s order is:

Honorable Tony Lindsay

280th Judicial District Court

Harris County Courthouse

Houston, Texas 77002

App. 23

- Iii.

In Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976),

the United States Supreme Court considered a Nebraska

trial court’s order which prohibited publication by the

press of certain information pertaining to a criminal trial.

The order expired by its terms when the jury in the case

was impaneled. Jd. at 546. Before the Supreme Court could

hear the matter, the Defendant had been convicted and

sentenced to death. Jd. Nevertheless, the Court held that

“Jurisdiction is not necessarily defeated simply because

the order attacked has expired, if the underlying dispute

between the parties is one capable of repetition, yet evad-

ing review.” Jd. The Court further held that if it declined

to consider the issues presented on the grounds of moot-

ness, “‘the dispute [would] evade review, or at least con-

sidered plenary review . . . by [the] Court since these

orders are by nature short lived.” (emphasis supplied) Jd

at 547. This principle was recognized by the Texas Su-

preme Court in State v. Lodge, 608 S.W.2d 910, 912 (Tex.

1980) and again in Jranian Muslim Org’n v. City of San

Antonio, 615 S.W.2d 202, 209 (Tex. 1981).

IV.

The same scenario is presented here. While the order

complained of has expired, the issue almost certainly will

repeatedly confront Relator in each asbestos-related per-

sonal injury trial setting in Harris County which involves

Plaintiffs’ counsel below, John Williams. Attached as Ex-

hibit “‘A”’ is a currént listing of Relator’s asbestos-related

trial settings in Harris County involving Mr. Williams. In-

deed, Mr. Williams has expressed his intention to move

for an order similar to that entered by Judge Lindsay in

other cases involving Keene as a Defendant. Keene believes

App. 24

that other judges, without appropriate guidance from this

Court, will continue to accede to Plaintiff counsels’ de

mands for such orders.

At least one judge, Judge Sharolyn Wood of the 127th

Judicial District Court of Harris County, has expressed

an intention to enter an order similar to Judge Lindsay’s

in future cases involving Keene. Indeed, Judge Wood has

entered two other orders touching upon this very sensitive

issue. On April 8, 1992, Judge Wood entered an order re

quiring Keene to produce all documents related to its

advertisement placed in the Houston Chronicle on March

6, 1992. See Exhibit “B’’. It is the placement of this ad

vertisement which prompted Judge Lindsay to enter the

order made the subject of Relator’s petition for Writ of

Mandamus before this Court. Following filing of a Mo-

tion for Leave to File Petition for Writ of Mandamus and

Petition for Writ of Mandamus in the Fourteenth Court

of Appeals in Houston, Judge Wood withdrew her order

and entered a new order dated April 22, 1992. This new

order requires that Keene, among other things, produce

documents pertaining to its March 6, 1992 advertisement.

See Exhibit “C’’. Clearly, these orders do not amount to

a prior restraint, nor do they restrict Keene’s exercise

of free speech. However, they do constitute an impermissi-

ble inquiry into the motives and mental processes behind

Keene’s exercise of free speech and demonstrates [sic] the

certainty for repetition of this issue. Absent intervention

by this Court, Keene fully expects to be required to initiate

mandamus proceedings in order to protect itself from fur-

ther Court interference with its First Amendment Rights.

VI.

Orders restricting Keene’s right to publish advertise-

ments pertaining to asbestos-related litigation will be re-

peated. Further, due to the short-term nature of such

orders, an individual order infringing upon Keene’s First

Amendment Rights will probably expire before review by

this Court is possible. Therefore, Relator respectfully

requests that according to the principles set forth in

Nebraska Press Ass’n v. Stuart, 427 U.S. 546 (1976), that

this Court grant its Motion for Leave to File Petition for

Writ of Mandamus and consider the issues presented in

its Petition for Writ of Mandamus.

Respectfully Submitted,

ROBERTS, MARKEL, FOLGER &

POWERS

JAMES H. POWERS

Texas State Bar No. 16217400

KENNETH C. BAKER

Texas State Bar No. 01584480

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, Texas 77046

(713) 840-1666

ATTORNEYS FOR RELATOR

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing instrument has

been forwarded to counsel of record by certified mail, re-

turn receipt requested, Lawyer’s Filing Service and/or

regular mail on ______ day of ____s,:-1992.

App. 26

EXHIBITS

Exhibit A— Current listing of Keene’s trial settings in

Harris County involving Mr. Williams

Exhibit B— Order dated April 8, 1992

Exhibit C— Order dated April 22, 1992

4/29/92

PLAINTIFF

GADUS, JOSEPH

HUHS, OSCAR

HUMPHREY, LINDSEY

KING, ARTHUR

MCCAFFETY, GEORGE

MCVAY, WILLIAM

HRAZ, JULIUS

ROUNTREE, EDGAR

SHERRILL, HORACE

TULLAR, GARLAND

VACHULE, CHARLES

CARR, CURLEY

COX, BEN

FOSTER, RICHARD

FROLICK, MILTON

GOODSON, DEWEY

ICKES, SAMUEL

KRAUS, WILMER

MCCALLUM, MAURICE

MICHALSKY, DANIEL

SABATIER, CHARLES

SCHULTZE, EUGENE

SIEMSEN, HUBERT

SOWELL, RAYMOND

STEPHENS, GENE

THIBODEAUX, HENRY

TOMPKINS, JACK

WISNOSKI, JOHN

BRYANT, JOHN P. JR

BUCK, RICHARD A., JR

GARCIA, MANUEL P

GARZA, RAMON

JACKSON, MACK C.

JIMENEZ, SYLVESTER

LEE, EARNEST JR. A

LEOS, JOE

MAY, EDWIN C.

MIRE, LARRY J.

OGLE, JAMES W.

> )

App. a

(

EXHIBIT A

COUNTY

HARRIS

DOCKET

87-61045

87-31603

85-44380

85-60297

87-3492

87-51955

86-04693

86-15983

87-19969

85-68820

87-13298

87-42872

85-34559

89-53870

$5-65539

90-52152

88-03524

85-44884

90-24254

90-04960

85-50165

89-09839

89-43356

89-34694

88-12821

90-52136

86-15977

89-26762

86-04196

86-16053

86-16145

86-16026

87-0978 1

85-39421

87-3604 1

85-34558

85-44375

86-04695

86-28018

TRIAL

DATE

12/09/91

12/09/9]

12/09/9)

12/09/91

12/09/9]

12/09/91

1/13/92

1/20/92

App

4/29/92

PLAINTIFF

ORSAK, ERNEST

SALINAS, LUCIANO

SINGLETON, CHARLES |

SKILLMAN, GERALD

SPAMPINATO, SAM

TOWNSEND, CARL A

WHEELER, CHARLES E

GARCIA, BENNIE

BOLTON, ROBERT

WILKIE, JAMES B

ANDERSON, WILLIE M

BRAMEL, PAUL D

CLARY, JOE W.

DELEON, JUAN A

DRAYTON, WILLIE

FLETCHER, JEFF SR

FOSTER, TALMAGE JR

FOWLER, RAY D.

HUSTON, ROBERT M.

JOHNSON, MCELVIN

JOHNSON, RUSSELL

MENDOZA, PAUL S

MONTOYA, POLICARPIO M

NICHOLS, DAVID E

NORWOOD, ROBERT A

SAMUEL, JOHNNIE

SIMS, LEONARD

VINCENT, CLARENCE

ALFRED, ANDRIA

ALLEE, WILLIAM F

ARYES, RAY

BABIN, EVAN R.

BATTARBEE, FLOYD A

BLEVINS, JIMMY R

BOHANNON, PAUL D.

BRYANT, WILLIAM

BURKHALTER, GRADY R

BUTSCHEK, GILBERT P

71°)

EXHIBIT

COUNTY

HARRIS

DOCKET

NO AT

85-44379

86- 16079

86-04188

85-6882 1

87-34980

86-60035

86-0573 1

89-26973

89-36514

89-35726

90-19431

89-24849

89-54145

88-57430

90-52139

91-25396

89-55150

88-60024

91-04683

89-18671

89-43369

88-57050

90-30277

91-12212

89-26793

91-19336

88-60082

90-25239

89-53998

90-63362

89-23671

88-11401

90-52156

85-50166

89-26960

85-18515

90-27876

90-17737

1/20/92

]

20/92

‘

—

2/26/92

3/02/92

3/16/92

4/29/92

PLAINTIFF

CARTER, ALBERT E

CLAY, CLEVELAND

CREED, JOHN R.

CROW, LYNN L.

DAVIS, GRANT SR.

DAVIS, URBAN

DUFFEY, ARCHIE W.

FEIGLER, WILL E.

GREGORY, CHARLIE R.

GRUBBS, JAMES F

GUICHET, JULES J. JR.

HELLER, LOUIS W.

HOLCOMB, JUNE L.

KENNEDY, GEORGE T.

KNOWLES, JOE M.

LEJSAL, JOHN

MATHISEN, EARNEST J

MICHAELS, LEE R.

MORTON, GRADY D.

MOUTON, JAMES J.

PERRY, EMMETT N.

PLATT, MARION E.

RADICKE, HAROLD E.

RANEY, IKA JR.

REEVES, DAN

SCHISSER, ANTON F.

SCOTT, ROBERT D.

STEVENS, JOHN B.

STONE, DON D.

TERRY, MERVYN D.

TUCKER, GEORGE

WHEELER, WILLIAM L.

| nm

App. 29

WILLIAMS, BENJAMIN C.

WILLIAMS, JACK B.(JM ONLY)

WILLIAMS, WILLARD N.

WILLIS, HENRY C.

ALLOY, ADOLPH A.

BUTLER, JAMES F., JR.

EXHIBIT A

COUNTY

HARRIS

DOCKET

87-61047

89-54365

85-1851]

86-10543

85-18514

85-18227

91-11027

85-39417

85-18233

85-34562

90-52154

86-50434

91-25376

9(0)-04995

85-68819

87-09784

91-23594

87-34983

85-50169

84-69709

87-57975

87-09790

90-63375

91-02736

90-63374

85-18236

85-18232

85-46937

89-19568

86-60034

87-34142

85-3453 1

85-50168

85-65520

85-18234

88-00037

89-011265

89-23668

TRIAL

DATE

3/16/92

16/92

3/16/92

4/06/92

y J

1/29/92

INTI}

CHARLES, EASTON |

COLVIN, GEORGE R

COOPER, MARVIN

DILL, LEON M

REICHERT, WILLIE A

SALINAS, FELIPE

SHOCKEY, JOHN |

ROBERT

SONNIER, JUNEIR

TrHIBODEAUX, LILIRS

VERA, ROLANDO

WALLACE, CLINTEl1

WALLS, A.B.

WILLIAMS, WARREN K

ANDERSON, JAMES

BATES, AUBREY H

BLAIR, JAMES E.

BOOKER, JOSEPH J

CONTRERAS, RAFAE]

EVERETT, ARTHUR F

FOSTER, JAMES

FULCHER, WILLIAMS

HOWARD, JESSE M

MERRITT, MAXWELL K

POPE, MANDLE

RAMEY, LAVADA E

REAGAN, GUY D

ROBERTSON, GARNER W

SANCHEZ, JUAN

STAVELY, THOMAS

WARREN, ELROY

ALLEE, WILLIAM

ALLEE, WILLIAM F

BABINEAUX, AVERY J

BAIN, EARL G.

BOZARTH, AUBREY E

BROWNSON, JAMES SR

EVANS, SHELTON

GALLION, GATHER

SILLS

EXHIBIT

IUNTY

HARRIS

DOCKET

RR. 16200

9]-02280

90-52169

8656-00420 1

R8-56479

89-32273

90-17736

89-44769

R5-06R8827

90-63373

90-53566

88-30495

87-058193

90-63414

87-51960

88-01922

88-01916

88-14375

88-01427

88-53458

88- 16004

RR-OY4AO LS

88-1799]

R&S FABRS

88-31549

88- 19608

88-63695

88-11361

88-35892

87-61232

88-10740

90-63362

90-6228 1]

91-17165

89-34684

88-57425

90-54821

R8-27998

TRIA

A AVASCLA

DATE

4/06/92

4 UH Q?

4/06/92

4/06/92?

4/06/92

4/20/92

4/27/92

or Q9°

or >)

Z2i/9

o”r 2)

21/9

or Q°

»”~ Q°

App.

1/29/99

GILBERT, REX

GOFF, LIMON

HEARRON, JOHN H

HICKMAN, LINARD V

HICKS, LEO III

HIGGINS, RICHARD

LEBLOW, JOHN W.

MCLAUGHLIN, PAT SR

MECHELL, LESTER §S

REDDING, ROSCOE

SLOVACEK, CALVIN F

STUBBLEFIELD, ERNEST

THOMAS, NEBRASKA

AYRES, RAY

BABIN, EVAN R.

BETTANSKI, FRANK

COLLIER, BOBBY J

DARNELL, JAMES

DE LA VEGA, JESSE

GILBREATH, BILLY J

GLENN, JOHNNIE

GRAU, NOAN

GRIGGS, WILLIE

HINEY ill, WILLIAM

HUBBARD, RUSH R

HUTTO, GARY D.

JOHNSON, RAYMOND L

KOEPPEN, WILLIE G

MANNING, GRADY T

MEGISON, JOHN T.

NANCE, WILLIAM

NELSON, ROBERT

NILES, GERALD L.

PINSON, ARTHUR E

PLEASENT, SR., EDWARD

POWELL, EDDIE

ROGERS, MONZEL

ROHDE, ELGIN

SAWEY, CHARLES

EXHIBIT A

COUNTY

HARRIS

DOCKET

88-60025

88-14376

85-50179

90-66576

88-60405

88-32799

88-11346

88-35895

88-54439

88-55672

90-52135

88-12812

88-60195

89-2367 1

88-1140]

88-49097

88-20512

89-2193]

89-34719

88-20513

89-55118

89-40346

87-51956

89-14254

89-23700

89-43351

87-19917

89-11269

87-46228

8'-19922

88-37051

88-34532

88-54435

87-34986

89-48857

89-52238

88-52001

89-18663

88-30497

TRIAI

DATE

4/27/92

5/04/92

0/04/92

5/04/92

0/04/92

5/04/92

4/29/92

PLAINTIFF

SMITH, AUBREY L.,

TURNER, CLARENCE

WILSON, MILTON Y

ALLMAN, NORMA

ALLRED, JOSEPH

AUZENNE, ALVIN

BAILEY, WILLIAM

BRAINER, GLOSTER

BRAUD, CHARLES

BROWN, ALFRED

CAMPBELL, JOE (JM ONLY

COOPER, JIMMY W.

DAVIS, EARL

DORSEY, CLARENCE

DOZIER, RAYMOND

DUNSON, KARL

ELLIS, HOBART

FITZGERALD, GEORGE

FREEMAN, HENRY

GAUTREAUX, EDWARD

GOMEZ, OCTAVINO

GONSOULIN, RAYMOND

GOOD, CARL

GRACE, GEORGE

GRAY, MONROE

HALES, MURL

HARLAN, INEZ

HECKLER, ALBERT

HERMAN, JOHN

HIBBARD, MASTIN

KAMINSKI, JOHN

KENNIE, NATHANIEL

KIBBE, UDEEN

KIRK, GEORGE

KNIGHT, BILLY

MARESH, EDWIN

MERRITT, ROBERT

MORGAN, DARREL

—

COUNTY

HARRIS

_-<ceeeseespaattaaat CL LL LA RLLLLLLLLLLLLLLL

DOCKE7

87-50223

88-158991

90-65141

89-26786

88-17578

89-47749

88-36452

87-05212

88-03523

89-18673

85-65535

85-68824

89-18596

88-12702

89-26977

90-52140

88-11370

89-19262

89-26763

87-34974

88-13102

88-00376

88-09783

87-09780

89-22188

90-42927

89-21950

87-13361

88-17992

89-09161

89-28558

90-33911

88-01429

88-11345

85-54567

88-09397

89-54201

5/04/92

7/06/92

4/29/92

PLAINTIFF

MORRATTO, DOROTHY

MORRIS, JAMES

PAGE, J. W.

POTTIER, JAMES

REED, JOHN

REYNOLDS, CHARLIE

RICHARDSON, B.L.

RICHARDSON, LESTER

RIPORTELLA, PATSY

ROWLETT, JOE

SANCHEZ, COSME

SANTOS, JESSE JR.

SEFCIK, ALVIN

SETTLE, MARVIN

THOMAS, CHARLES JR.

THOMPSON, CHARLES

TYLER, LLOYD

WESTBROOK, WILLIAM

WHITFIELD, CLIFFORD

App. 33

WHITLOW, ERNEST (JM ONLY)

CAMPBELL, WILEY D.

COOPER, EDWARD S.

DETTMER, MARVIN E.

DODSON, ARTHUR L.

MANCHACA, JOE

MORRIS, WILLIS

DUDLEY, ROBERT B.

HILLMAN, WILLARD

MILLS, EDWARD S.

MOORE, EDWIN B.

WALLACE, THURMAN J

WHITAKER, JULIUS C.

WILLIAMS, ADOLPHUS

BURRELL, JOHNIE L.

PRICE, ALTON

STRINGFIELD, AVANELL

TIBBETS, CHARLIE M.

WILDER, LEONARD A.

EXHIBIT A

COUNTY

HARRIS

DOCKET

90-23614

85- 18508

90-63364

88-60048

89-43368

87-61177

87-61226

89-26670

88-48304

89-54222

86- 16065

86-60030

90-2524

88-48302

90-54816

89-23684

90-53561

89-24345

89-09842

85-23739

90-63368

91-02284

90-53556

91-01837

90-53543

90-52144

90-53557

90-52130

91-01839

90-63366

90-44231

90-42832

90-43707

91-04656

91-06667

91-06669

91-03399

91-03407

TRIAL

DATI

7/06/92

8/03/92

8/31/92

9/14/92

9/28/92

App. 34

No. &5-44379

(Consolidated for trial)

(Cause

ERNEST J. ORSAK, ET Al IN THE

DISTRICT COURT OF

HARRIS COUNTY, TEXAS

THE KEENE

CORPORATION « 127TH JUDICIAL DISTRICT

YRDER

On March 6,

verdict in this consolidated tnal

the representations concerning the placement by

KEENE CORPORATION of the

5, 1992, it is therefore

1992, the Court conducted a hearing con

Based on

THE

advertisement of March

cerning tne

ORDERED, ADJUDGED AND DECREED that Keene

Corporation shall produce for the Court’s inspection all

documents, correspondence, in-house memos, drafts and

correspondence concerning KEENE’S advertising campaign

n any newspaper or other print media throughout the

nited States, particularly including any documentation

going to KEENE’S intent in placing the ad which ap

peared in The Houston Chronicle on March 5, 1992

ws bets

}

documentation showing whether or not the ad was part

of a nationwide campaign and whether or not it was

‘mere coincidence” that the ad appeared during the jury

deliberation in this consolidated trial, all as represented

by attorney for KEENE.

Counsel for The KEENE

dered, in open court.

CORPORATION was so or-

On March 30, 1992, at a hearing on Plaintiff's request

for discovery on the advertisement, all counsel were pres

copy of which is attached as Exhibit “‘A’’, and any other

———— en

App. 35

ent. Plaintiff's discovery is ORDERED abated at this time

due to the Court’s prior order to KEENE. The date of

April 20, 1992 is set by the Court as the date for the

production of the ordered documentation by THE KEENE

CORPORATION.

Signed April 8, 1992

s/ SHAROLYN Woop

Hon. Sharolyn Wood

Judge Presiding

App. 36

Legal fees

Up, up and away

GLENN W. BAILEY, chairman and president of Keene

Corp., isn’t the most objective observer of the asbestos

lawsuits his company has endured.

But since his company will be shelling out $500 million

in legal fees, Bailey does offer a unique insight into Amer.

ica’s court system.

In case you missed Bailey’s letter to the editor, here

is a synopsis: In 1968, Keene bought a small maker of

acoustical ceilings, ventilation systems and insulation prod-

ucts_for $8 million. Some of that insulation included as

bestos. The company ceased production in 1972

Keene’s losses didn’t end there. They had just begun

Asbestos led to lawsuits and a whopping $500 million in

court awards and legal fees. So far, 12 co-defendants have

been bankrupted.

Bailey says he doesn’t mind paying injured parties, but

the punitive damages and legal fees are absurd. Less than

half the $500 million will actually go to anyone injured

by asbestos. The rest—60 percent—goes to lawyers.

‘‘A criminal can be punished only once, while a manu-

facturer might be punished thousands of times for a single

act—even though as in our case, we did nothing that was

illegal,” Bailey wrote.

That’s not justice. It’s abuse.

Not only does injustice harm the nation’s soul, but its

economy as well. Vice President Dan Quayle’s Council on

Competitiveness found that litigation is now a $300 billion

drag on the economy.

App. 37

That’s what happens when you have 70 percent of the

lawyers in the world.

The above editorial appeared on December 31, 1991

in West Virginia’s Charleston Daily Mail

and is reprinted with its permission

‘We are encouraged

that the facts are getting through

concerning a serious problem

that affects all Americans.”’

For further information write to

Keene Corporation

200 Park Avenue, New York, NY 10166

Exhibit “A”’

App. 38

SHAROLYN WOOD

Judge, 127th District Court

Harris County Courthouse

Houston, Texas 77002

April 22, 1992

TO: POWERS, JAMES H.

24 GRNWY PLZ/1010

HOUSTON, TX 77046

COUNSEL:

THE COURT HAS MADE THE FOLLOWING DOCKET

SHEET ENTRY:

APRIL 20.1992: ORDER RE 21 DAY PRODUCTION SET

ASIDE. DEFENDANT KEENE TO ADVISE THE COURT IN

WRITING BY WHAT DAY DEFENDANT KEENE WILL

PRODUCE THE DOCUMENTS AS REPRESENTED TO THE

COURT ON MARCH 6, 1992. ORDER AND RULING RE

PLAINTIFFS DISCOVERY SET ASIDE AND RE DEFEN.

DANTS MOTION FOR PROTECTION SET ASIDE. THE

COURT INTENDS TO SET ASIDE THOSE MATTERS CON

SIDERED AT THE 3-30-92 HEARING ONLY. DEFENDANT

KEENE MAY SET ITS DISCOVERY OBJECTIONS FOR

HEARING IF CONTINUES TO URGE SUCH OBJECTIONS.

DEFENDANT KEENE WILL ADVISE THE COURT OF THE

NAME OF THE ATTORNEY THAT APPEARED FOR MR.

POWERS ON 3-30-92. IF THE COURT RECEIVES NO

RESPONSE WITHIN 5 DAYS, THE COURT WILL SET A

DATE FOR THE DOCUMENTS TO BE PRODUCED THAT

SUBSTANTIATE DEFENDANT KEENE’S REPRESENTA

TIONS TO THE COURT. ORDER SIGNED.

SHAROLYN WOOD,

JUDGE, 127TH DISTRICT COURT

CASE — 8544379 FILED — 080585 COURT — 127

TYPE — DAMAGES (ASBESTOSIS)

ORSAK, ERNEST J VS ACANDS INC

EXHIBIT C

App. ;

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

May 20, 1992

Mr. James H. Powers Mr. Kenneth C. Baker

Roberts, Markel, Folger Roberts, Markel, Folger

& Powers & Powers

Weslayan Tower, Suite 1010 Weslayan Tower, Suite 1010

24 Greenway Plaza 24 Greenway Plaza

Houston, TX 77046 Houston, TX 77046

Mr. John E. Williams, Jr. Mr. R. Lyn Stevens

Umphrey, Burrow, Williams Weller, Wheelus & Green

& Bailey 500 Fannin Street

8441 Gulf Freeway, Suite 600 5th Floor, Petroleum Tower

Houston, TX 77017-5001 3eaumont, TX 77704

Ms. Melinda L. Wesner

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite 600

Houston, TX 77017-5001

RE: Case No. D-2264

Style: KEENE CORPORATION

Vv. THE HONORABLE TONY LINDSAY. JUDGE

App 1()

Dear Counsel:

Today, the Supreme Court of Texas overruled relator’s

motion for rehearing of motion for leave to file petition

for writ of mandamus in the above referenced case

Sincerely,

John T. Adams, Clerk

by /s/ COURTLAND CROCKER

Courtland Crocker, Deputy

ec: Mr. Joe Cox

Honorable Tony Lindsay

App. 41

REST IN PEACE

16 COMPANIES DRIVEN TO BANKRUPTCY

TENS OF THOUSANDS OF JOBS LOST

OUR ECONOMY BATTERED

ALL CAUSED BY THE ASBESTOS LAWSUIT LOTTERY.

A runaway litigation nightmare that has clogged our

courts with many frivolous claims by people who are not

injured. As a result, deserving claimants and citizens with

other cases are delayed or deprived of their day in court.

Asbestos is 90th on the Environmental Protection Agen-

cy’s list of items that should concern Americans. But as-

bestos litigation is the number one cause of court-clogging,

the number one cause of bankruptcies of otherwise healthy

and productive companies and number one in generating

lawyers’ fees.

$9 billion dollars has been spent in asbestos litigation

but less than 35% has reached the plaintiffs, $6 billion

dollars has gone to lawyers!

From 1980 to 1990, the U.S. population increased by

23 million while the number of factory jobs decreased by

15%. American prices are being driven up, American jobs

are being lost, and American businesses are being forced

from the market place and into bankruptcy. American

competitiveness has slipped to fifth place. Japan is now

number one and Germany is number two!

It must give our foreign competition a lot of comfort

to watch the American Justice System cripple American

companies as they build theirs!

App. 42

Congress, the Judiciary and the White House have rec-

ognized the need to stop the asbestos lawsuit lottery. Now

they must act to solve this serious national problem before

even more jobs are iost.

Will your job and your company be next?

LEGISLATION IS NEEDED BEFORE IT’S TOO LATE.

Write to your elected congressional representatives now

and urge them to pass an administrative claims

process that would resolve the problem that is

strangling our courts and our economy.

For more Information write to:

KEENE CORPORATION

200 Park Avenue, New York, NY 10166

App. 43

Legal fees

Up, up and away

GLENN W. BAILEY, chairman and president of Keene

Corp., isn’t the most objective observer of the asbestos

lawsuits his company has endured.

But since his company will be shelling out $500 million

in legal fees, Bailey does offer a unique insight into Amer-

ica’s court system.

In case you missed Bailey’s letter to the editor, here

is a synopsis: In 1968, Keene bought a small maker of

acoustical ceilings, ventilation systems and insulation prod-

ucts for $8 million. Some of that insulation included as-

bestos. The company ceased production in 1972.

Keene’s losses didn’t end there. They had just begun.

Asbestos led to lawsuits and a whopping $500 million in

court awards and legal fees. So far, 12 co-defendants have

been bankrupted.

Bailey says he doesn’t mind paying injured parties, but

the punitive damages and legal fees are absurd. Less than

half the $500 million will actually go to anyone injured

by asbestos. The rest—60 percent—goes to lawyers.

‘‘A criminal can be punished only once, while a manu-

facturer might be punished thousands of times for a single

act—even though as in our case, we did nothing that was

illegal,’ Bailey wrote.

That’s not justice. It’s abuse.

App. 44

Not only does injustice harm the nation’s soul, but its

economy as well. Vice President Dan Quayle’s Council on

Competitiveness found that litigation is now a $300 billion

drag on the econom)

That’s what happens when you have 70 percent of the

lawyers in the world.

The above editorial appeared on December 31, 1991

in West Virginia’s Charleston Daily Mail

and is reprinted urth its permission

‘We are encouraged

that the facts are getting throug!

concerning a serious problem

that affects all Americans

For further information write to

Keene Corporation

200 Park Avenue, New York, NY 10166

App. 45

All Three Branches of GOVERNMENT ARE WORKING TO

SOLVE A MAJOR PROBLEM

THE LEGISLATIVE, JUDICIAL AND EXECUTIVE BRANCHES

of our Government are trying to correct a litigation prob-

lem that is causing bankruptcies, destroying jobs and

clogging our courts. The lawsuit logjam is depriving all

of us of our right to be heard promptly. Justice delayed

is Justice denied. Especially for meritorious claimants.

Last year the Ad Hoc Committee on Asbestos Litiga-

tion appointed by Chief Justice Rehnquist reported that

. ‘what has been a frustrating problem is becoming

a disaster of major proportions to both the victims and

producers of asbestos products, which the courts are

ill-equipped to meet effectively.’

In March 1991, the Ad Hoc Committee recommended

that Congress enact legislation to solve the Nation’s

asbestos litigation mess.

Both the House and Senate responded. Congressman

William Hughes of New Jersey, Chairman of the House

Judiciary Subcommittee on Intellectual Property and Judi-

cial Administration, began hearings on October 24th. On

February 18th of this year Senator Howell Heflin, Chair-

man of the Judicial Subcommittee on Courts and Ad-

ministrative Practice, also began hearings on this critical

situation.

The Executive Branch recognized the problem as shown

when Vice President Quayle told the American Bar

Association last August: ‘“‘Overuse and abuse of the civil

justice system has become a self-inflicted competitive

disadvantage.” In October, President Bush at a White

House ceremony noted that rules are being set because

the American legal system had “spun out of control.”

App. 46

The Council on Competitiveness has estimated that litiga-

tion is now a $300-billion annual drag on the economy. Be-

tween 1978 and 1991 sixteen major American-owned defen-

dant companies in asbestos litigation reorganized or liqui-

dated under U.S. bankruptcy laws. Thousands of Americans

lost their jobs.

In mid-1990 Keene Corporation had 76,000 personal injury

claims pending against it and, although more that 17,000

cases have been settled since then, there are now 87,000

pending! Many of these plaintiffs, who were recruited by trial

lawyers, have no health impairment but seek damages

because they claim to have been exposed to asbestos

The cost to date of the lawyer-inspired asbestos litigation

is estimated to be $9-billion, with approximately $6-billion

going to the lawyers! That equates to enough capital to

create over 200,000 jobs, or that sum could have been used

to build over 90,000 housing units! Civil justice abuse works

against the best interests of society.

If nothing is done to fix the civil justice system the final

cost could be astronomical. Pending asbestos cases could cost

another $20-billion while the ultimate cost could be $50

to $100-billion.

To prevent the unnecessary bankrupting of companies

which have been out of the asbestos business for ngany

years, an interim law is needed until a final bill can be

developed that would cover three things:

1. Eliminate punitive damages, the acknowledged

abuse in asbestos litigation.

2. Establish a pleural registry for unimpaired plain-

tiffs who have health concerns so that they could

be compensated should they later have health im-

pairment.

3. Suspend consolidations of diverse plaintiffs until the

fairness issue is resolved.

App. 47

Se ae ee Se

<> «< ~

LEGISLATION IS NEEDED BEFORE IT IS TOO LATE.

A start has been made by all three branches of govern-

ment. Let’s keep it rolling.

KEENE CORPORATION

200 Park Avenue, New York, NY 10166

App. 48

LITIGATION

IS CLOGGING OUR COURTS,

BANKRUPTING COMPANIES,

DESTOYING JOBS

From 1980 to 1990, the U.S. population increased by 23

million while the number of factory jobs decreased by 15

percent. American prices are being driven up, American

jobs are being lost, and American businesses are being

forced from the marketplace and into bankruptcy

WE NEED

LEGISLATION

Now

To SOLVE

THIS CRISIS

WHY? One major reason, as Vice President Quayle stated

in August before the American Bar Association: “Overuse

and abuse of the civil justice system has become a self-in-

flicted competitive disadvantage.”

Based on my own experience as chairman of the board

of Keene Corporation, I heartily agree.

Currently, I am spending 99 percent of my time on litiga-

tion and 1 percent toward growing Keene’s manufactur-

ing subsidiary. If I could spend most of my time develop-

ing that operation, by the end of the decade Keene could

have sales of $500 million per year and create 4,000 new

jobs.

App. 49

Some lawyers have said that they are concerned with the

future of Keene merely insofar as their clients are con-

cerned, implying that 4,000 jobs are not of concern to

them. How can we compete in world markets having to

spend management time fighting lawyers with attitudes

like this, especially in view of America’s increasingly pain-

ful unemployment situation?

Let me explain how Keene got into this litigation. In 1968,

Keene bought, for $8 million, a small manufacturer of in-

sulation products. Some of these products were required,

by customers’ specifications, to contain asbestos. Keene

stopped making these products in 1972 and closed the

company down in 1976, losing Keene’s entire investment.

End of tale? Not at all! Laws developed in the late 1970s,

strengthened in the ’80s, and applied in the ’90s to the

events of the ’40s, 50s and ’60s have caused Keene and

its insurers to spend $350 million on asbestos litigation.

Keene is willing to spend another $150 million in the

future, approximately 80 percent of its net worth. That’s

a half-billion dollars lost for the mistake of acquiring a

company for $8 million . . . and lawyers consume over

60 percent of those dollars!

A CRISIS EXISTS. Defendant firms are being bankrupted,

thereby creating two severe problems: 1) more American

workers will lose their jobs; 2) there will not be money

available for future plaintiffs with meritorious claims. One-

half of our co-defendant firms have been bankrupted, and

a contributing factor has been the growing punitive dam-

age awards. A criminal is punishable only once, whereas

a manufacturer might be punished thousands of times—

even though, as in our case, nothing was done that was

or is illegal!

Punitive damages demanded by lawyers and awarded

against Keene in five jurisdictions this year have amounted

App. 50

to $26 million. All are under appeal, as none of them is

justifiable. Elimination of punitive damages would release

$26 million, yielding $26,000 each for 1,000 widows in the

future.

So far in 1991, Keene has spent $10 million to defend itself

in frivolous suits—suits which Keene won. If Vice Presi-

dent Quayle’s proposed rule to have the loser pay the

other party’s legal expenses were instituted, such suits

would be dramatically reduced and unclog the courts.

Many Members of Congress are aware of the severity of

the litigation problems, and, in fact, eight Members par-

ticipated in a hearing conducted by Congressman William

Hughes of New Jersey. This hearing was on October 24th,

the day following the White House ceremony at which

President Bush noted that rules are being set because the

American legal system had “spun out of control.”

My concern is not just about Keene, but about the serious

economic decline of America. I am urging that you write

to your Members of Congress and urge them to examine

the facts that have been established and enact legislation

to solve the absestos litigation problem that is overwhelm-

ing our judicial system and hurting our economy.

s/GLENN W. BAILEY

Glenn W. Bailey

Chairman and President

KEENE CORPORATION

200 Park Avenue, New York, NY 10166

212/557-1900

ee eS

App. 5

‘‘Overuse and abuse of the civil justice system has

become a self-inflicted competitive disadvantage.’’

VICE PRESIDENT QUAYLE, addressing

the American Bar Association.

KEENE CORPORATION

200 Park Avenue, New York, NY 10166

212-557-1900 FAX 212-972-3959

FAX 212-697-5289

August 22, 1991

Mr. John J. Curtin, Jr., President

American Bar Association

750 North Lake Shore Drive

Chicago, IL 60611

Dear Mr. Curtin.

In rebutting Vice President Quayle’s remarks to your

Association, you said: “In our view, the civil justice

system and the lawyers who work in it are not the source

of America’s failure to compete effectively with foreign

countries.” Your statement stimulated me to write this

letter about my company’s experience during the week

of the ABA meeting.

On Monday, August 12, Fred Baron, a lawyer for the

asbestos plaintiffs in Texas and other states, persuaded

Judge John McClellan Marshall of the 14th District Court

in Dallas to sign an order requiring Keene to turn over

$4 million in cash and confidential corporate documents.

Baron did this via unsupported allegations and numerous

inaccurate statements, and Keene never had a chance to

point out to the Judge that Baron had made many false

statements. Baron simply presented his pleadings on a

App. 52

special calendar and stripped away Keene’s rights to a

fair hearing. Keene is a publicly held company and many

of Baron’s false allegations are easily refuted by its finan-

cial statements that are available to everyone. Keene is

appealing that order.

On Thursday, August 18, Baron had me involved in a

deposition and was constantly probing for confidential in-

formation, such as the names of creditors and bank ac-

counts, indicating that he would like to force Keene into

bankruptcy. Why does Baron want to bankrupt Keene?

Because Keene won’t give up and pay him whatever he

demands if he doesn’t accept the settlement guidelines

Keene developed to provide money for the plaintiffs with

severe impairment, both present and future. Baron’s be-

havior says to me that he wants all of Keene’s money

now for his clients and for himself, at the expense of

future plaintiffs.

During the deposition I mentioned that I was spending

99% of my time on litigation and 1% toward growing

Keene’s composite manufacturing subsidiary. If I could

spend most of my time developing that operation, by the

end of the decade Keene could have sales of $500 million

per year and create 4,000 new jobs. Baron indicated he

was concerned with the future of Keene merely insofar

as his clients were concerned, implying that 4,000 new

jobs were not of a concern to him. How can we hope to

compete in the world markets with this lawyer’s attitude,

especially in view of America’s painful unemployment situ-

ation?

Keene bought, for $8 million in 1968, a small manufac-

turer of insulation products. Some of them were required

by customers’ specifications to contain asbestos. Keene

stopped production of these products in 1972, and closed

App. 53

the company down in 1976—losing Keene’s entire invest-

ment. End of tale? Not at all! Laws developed in the late

1970s, strengthened in the ’80s and applied in the ’90s

to the events of the ’40s, ’50s and ’60s have caused Keene

and its insurers to spend $350 million on asbestos litiga-

tion. Keene is willing to spend another $150 million in the

future, approximately 80% of its net worth. That’s a half.

billion dollars lost for the mistake of acquiring a company

for $8 million. . . . and lawyers will consume over 60%

of those dollars!

Keene has spent $10 million so far in 1991 to defend

itself in frivolous suits which Keene won. If the proposed

rule that the loser pays the other party’s legal expenses

were instituted, these suits would be dramatically reduced

and unclog the courts.

Punitive damages demanded by lawyers and awarded

against Keene in five jurisdictions this year have amounted

to $26 million. All are under appeal, as none of them are

justifiable. Elimination of punitive damages would release

$26 million, yielding $26,000 each for 1,000 widows in the

future.

Mr. Curtin, please rethink your statement about lawyers

not being one of the sources of America’s failure to be

competitive. Keene’s experience shows that American

prices are being driven up and American businesses are

being forced from the marketplace and into bankruptcy

by the non-professional, self-aggrandizing and personal

greed of a number of American lawyers.

Sincerely,

/s/ GLENN W. BAILEY

Glenn W. Bailey

Chairman and President

App. 54

THE WALL STREET JOURNAL WEDNESDAY, JULY 15, 1992

Rule of Law — by Glenn W. Bailey

Litigation Abuse Is Destroying My Company

As the Democrats meet in New York this week, they

claim to be worried about the erosion of American Indus-

try. As an American industrialist, I can tell them that

one of the prime causes of our trouble is entirely within

the control of the political process: abusive litigation. If

they’re serious about repairing our industrial base, rein-

ing in the litigation monster is the place to start.

Twenty-five years ago, when I started Keene Corp., the

company was worth $800,000. Keene, a former Fortune

500 company, is now spending $800,000 each week on

asbestos-related litigation. On Monday, we were one of

six defendants found liable by a Baltimore jury in a huge,

non-consensual, consolidated asbestos trial, a trial that in-

volved 8,500 plaintiffs. And there is plenty more asbestos

litigation to come for us.

Why? Because out of the 50 acquisitions Keene made,

one, a company called Baldwin Ehret Hill, bought in 1968

for $8 million, made thermal insulation that contained

about 10% asbestos. From 1968 to 1972, Baldwin Ehret

Hill sold $15 million worth of asbestos-containing products

out of total sales of more than $500 million. In 1972 Keene

had its affiliate totally eliminate asbestos and in 1975 the

affiliate was closed.

Since then, Keene has paid out $400 million to resolve

asbestos claims brought against it because of its unprofjt-

able $8 million investment 24 years ago. Two-thirds, or

approximately $265 million, has gone to lawyers. Four of

App. 55

the plaintiff law firms have received fees exceeding

Keene’s original $8 million investment.

Not one of the plaintiffs was ever employed by Keene

or the company it bought. In fact, most of them worked

in Navy shipyards during World War II, 25 years before

Keene was formed. And here’s the greatest irony: Most

of these plaintiffs are not sick. They’re just worried about

what might happen in the future.

In asbestos litigation, courts are focusing on suppliers

like Keene even though Keene did nothing illegal or im-

proper. In response to the medical research of the time.

Keene’s cartons bore caution labels about how to handle

its products.

Suppliers like Keene are being sued, not because they

did anything wrong, not even because they were direct-

ly responsible for any harm done, but because lawyers

don’t make much in fees from suing the plaintiffs’ actual

employers. The employers are covered by workers’ com-

pensation programs. Nor do courts generally allow con-

sideration of the plaintiff's responsibility or his employer’s

safety practices to mitigate judgments against a supplier.

Nowhere else in the world could these lawsuits be suc-

cessfully brought against a company like Keene. No other

country countenances a justice system anything like the

U.S.’s ad hoe asbestos law, with its punitive damages, con-

solidation of entirely diverse cases, junk-science testimony

and huge contingency fees.

However, here in the U.S., because of this abusive

litigation, 16 of our co-defendants have been bankrupted.

Since they are no longer in the courtroom, the rest of

us must shoulder their burden, in addition to our own.

Under the ‘‘joint and several responsibility” rule, the last

App. 56

asbestos supplier standing will be liable for all the judg-

ments against all asbestos defendants. And the elimina-

tion of the remaining suppliers should come soon, as we

face 2,000 new lawsuits each month.

Contingency fees provide some of these lawyers returns

of well over $5,000 a hour, encouraging them to recruit

even more plaintiffs. Result? A clogging of the courts and

a wasting of funds.

The public panic has become so great that although asbes-

tos ranks 90th on the Environmental Protection Agency’s

“Priority List of Hazardous Substances,” asbestos litiga-

tion is the No. 1 cause of health and safety litigation. It’s

No. 1 in the number of claimants, No. 1 in the number

of defendant bankruptcies and No. 1 in the size of lawyers’

fees.

It’s time to reconsider what we are doing. Litigation

is the most ineffective way to get money to claimants.

In asbestos-related litigation, less than 35% of the award

typically gets to the plaintiff.

How have the plaintiffs’ lawyers accomplished this? An

ad hoe ‘‘asbestos law” was developed in the 1970s and

strengthened in the ’80s. Now it is being applied in the

90s to the events of the 1940s, ’50s and ’60s.

The single most wasteful example of asbestos panic can

perhaps be seen in the zeal to remove asbestos-contain-

ing insulation from buildings. Driving to an asbestos-

insulated building is 1,600 times more dangerous than

breathing the air in the building. Smoking is 22,000 times

as dangerous. The Environmental Protection Agency, the

American Medical Association and the Health Effects In-

stitute all say it is safer to leave existing asbestos insula-

tion in place than tc remove it.

App. 5

But lawyers slavering for more and more fees exploit

the American public’s fears to press America’s businesses

to pay for the unnecessary removal of asbestos insulation

from all buildings. And some judges under the special

“asbestos law” will not even allow a relative risk com-

parison to be argued in the defendant’s case.

The current civil-justice system wasn’t designed to han-

dle the multitude of asbestos claimants. An alternative

system of claims resolution is required. An administrative

alternative would be a more efficient solution for all pres-

ent and future meritorious claimants. It should also put

a cap on punitive damage awards, discourage frivolous

lawsuits, limit lawyers’ contingency fees and rule out

“Junk-science”’ experts. Such a solution has been proposed

to Congress.

Asbestos litigation, which is just the leading edge of the

“legalized extortion” epidemic, has cost American firms

approximately $9 billion—with about $6 billion of the total

going to lawyers. That’s enough money to support more

than 200,000 jobs or to build 90,000 housing units.

If nothing is done to fix the abuse and overuse of the

civil-justice system, asbestos-type legalized extortion will

spread to other industries. Now is the time for action to

save America’s industrial strength. Is anyone in Washing-

ton listening?

Mr. Bailey is chairman of Keene Corp. in New York.

TAMING THE ASBESTOS

LITIGATION MONSTER

Remarks to the Judges Panel

On Asbestos Litigation

By Glenn W. Bailey

Chairman and President

Keene Corporation

Seminar Sponsored by

Andrews Communications

May 21, 1992 Philadelphia

Keene ( ‘ornoratio? Sa sn al company ' ght ng to Sm

e the “asbestos litigation mess” that has bankrupted

16 major companies so far. Keene acquired a small con

pany in 1968 for $8 million and operated it for only four

years. A feu of that company's insulation products Ln

cluded small amounts Oo} asbestos to rmeet customers’ Spe

cifications. Yet, Keene has offered to pay out a total of

_- Bi } ) , ;

S000 miliion to pul asbestos litigation behind it. Mr

’ . , 7?

Bai eu s comments follou

I've been invited to speak to you today because my

efforts to resolve the asbestos litigation problem have ex

cited deep feelings among some judges and certainly most

plaintiff lawyers. My detractors have called me cranky,

irrational, impolitic, irate—and many other names not as

acceptable in polite society.

App. 59

But the issues at stake here are larger than individual

personalities. This litigation has spiraled out of control and

is harming our country’s economy and our civil justice

system.

I have come here to share my thoughts with you with

the hope that these thoughts might move us all along the

road toward a resolution of this difficult situation. We

have something in common. Keene wants what | think

the state and federal judges around the country want: to

clear all court dockets of all asbestos cases efficiently and

promptly. My hope is that by explaining where Keene is

coming from, we can work together with judges to achieve

this important national goal.

I’ve already had the opportunity to meet with some of

you personally, and to express my views of where we are.

how we got here and where we need to gO.

But today, the emphasis will be mainly on the last point-

where we need to go—because time is running out. If the

present situation persists, seminars like this won’t be

necessary or even possible. No companies will be left to

compensate people who get sick from exposure to asbes

tos. So let’s use this opportunity well.

Let me begin with a few points of background and his-

tory because we cannot deal effectively with the present

unless we understand the past.

Point 1. It is undisputed that. when properly handled,

asbestos-containing products are safe and of great so-

cial utility.

As some of you may know, as late as 1979. the U.S.

Navy still maintained that it was impossible to build ef.

ficient naval vessels without asbestos. Asbestos is and will

continue to be used in hundreds of products in the future.

However, while asbestos is number 90 on the EPA’s

list of items that should concern people, asbestos litiga-

(120M 1S:

App. 60

= Number one as a cause of court clogging

ew Number one in number of claimants

we Number one in causing bankruptcies of otherwise

healthy and productive companies, and

= Number one in generating lawyers’ fees

Point 2. The existing format for processing asbestos

claims—namely through the tort system—is the most

inefficient way to get money to claimants.

Even the much criticized Social Security system gets

98% of the funds to the intended recipient. But in asbes-

tos litigation less than 35% of the funds go to the plain-

tiff. And because a system has evolved which establishes

different legal standards for asbestos claimants—making

it easier for unimpaired claimants to obtain grossly in-

flated damage awards—an even smaller fraction of the avail-

able funds is delivered to the truly impaired plaintiffs.

Point 3. The present system—and all of its prob-

lems—is self-perpetuating. It has a life of its own.

Judges’ efforts to resolve cases all too often have re-

sulted in a perverse incentive, causing more cases and

more backlog.

This is what happens: the opportunity for contingent

fees that yield some lawyers returns of well over $5,000

per hour drive them to recruit more plaintiffs, most of

whom are not sick. When cases are settled, these lawyers

recruit still more plaintiffs and file still more cases result-

ing in still more serious docket clogging and the further

depletion of funds needed for truly impaired plaintiffs in

the future.

Let’s look at this a little more closely and I will use

as the example my company—Keene Corporation—and its

now defunct subsidiary Baldwin-Ehret-Hill, or BEH. BEH

App. 6]

actually manufactured the asbestos insulation products at

issue in this litigation. Keene bought BEH in 1968 and

by 1972, BEH no longer manufactured asbestos products.

It was shut down completely by 1975.

Now, today’s trials do not deal with whether the plain

tff’s injury was caused by Keene’s BEH subsidiary, or

whether BEH appropriately warned of the dangers of im

properly handling its products when medical research evi

dence became available.

Today’s trials do two things:

@ They limit the plaintiffs’ responsibility for ignoring

warnings, and

= They limit their employer’s responsibility for not

providing a safe workplace and enforcing the company’s

then-existing requirement to wear respirators in areas

where dust could not be controlled by the use of ventila

tion and dust collection equipment.

Today's trials focus solely on the supplier

Today’s trials also permit the introduction of irrelevant

and inflammatory evidence, resulting in verdicts not re

lated to the extent of the plaintiffs’ injury, but to the heat

of the lawyers [sic] rhetoric.

This combination (a) of limiting the responsibility of the

plaintiff and his employer, (b) of focusing all the liability

on the ever shrinking number of suppliers, and (c) of per-

mitting irrelevant and inflammatory evidence, inevitably

lead to more cases and more trials.

Point 4. Today’s trials yield unpredictable, inequita-

ble and arbitrary results.

Judge Weinstein and many others have noted that

juries, confronted with essentially the same facts, have

awarded damages ranging from zero to millions of dollars!

App. 62

This “asbestos lottery” and its attendant high contingency

fee payments have motivated plaintiff lawyers to recruit

increasing numbers of unimpaired claimants to perpetuate

their fee-feeding frenzy.

In some jurisdictions, Keene has been “‘gagged’’ from

commenting on matters of public concern and presenting

historical facts while judges and lawyers have publicly

aired opinions, frequently prejudicial to Keene.

Point 5. Since the bankruptcy of Johns-Manville and

other majer suppliers, plaintiff's law firms have scram-

bled to retool their practice and target smaller com-

panies like BEH.

The burden of larger and larger “lottery” type awards

now falls on fewer and fewer companies with less and less

money. Example: in a current case, with 8,555 plaintiffs,

approximately 85% of the 100 plus original defendants are

not in the courtroom. And furthermore, though BEH had

less than a few percent of the market and never mined

or milled asbestos, Keene now has &7,000 cases pending

against it.

Point 6. The asbestos litigation has cost the Amer-

ican economy $9 billion so far, with about $6 billion

going to lawyers.

What is the underlying significance of these numbers?

Those billions could have been used to invest in and create

over 200,000 jobs or 90,000 housing units. Some estimate

that continued uncontrolled asbestos litigation costs could

exceed $100 billion or the equivalent of 2 million jobs or

a million housing units!

Point 7. The asbestos litigation frenzy continues to

expand.

Contrary to the advice of the EPA, the American Medi-

cal Association and the Health Effects Institute, people

App. 63

are needlessly removing asbestos-containing insulation

from buildings and suing. Comparing recent statistics, we

learn that driving to a building containing asbestos insula-

tion is 1,600 times more dangerous than breathing air in

the building. Further, smoking is 22,000 times more dan-

gerous than breathing air in a building containing asbestos

insulation.

So, where has all this left us? The Ad Hoc Committee

of Judges calls it an impending disaster. We could never

have devised a system on purpose that would better guar-

antee hundreds of thousands of lawsuits, over 90% of

which have been brought by people who aren’t sick.

Forbes magazine reported that up to 80% of cases pend-

Ing a year ago involved those who are not sick. The data

at Keene, and I’m sure at other companies, are that the

number is much higher in new filings

What Comes Next

And, where are we going? Well, that is up to you, the

judges who have the responsibility for asbestos cases

around the country.

If the goal is to run the litigation until every defendant

has been bankrupted, thousands of people left uncompen-

sated, and thousands of workers without jobs, then con-

tinue to do what is now being done. On the other hand.

if your goal is to do justice to the parties and to the pub-

lic—and.I believe it is—the path is clear.

We need a system—uniform all over the United States—

which will do four things:

1. Provide fair compensation to truly impaired plain-

tiffs promptly.

2. Stop new case filings.

3. Control transactional costs—mainly lawyers’ fees,

both plaintiff and defendant.

App. 64

4. Keep defendants in business to provide compen-

sation for future meritorious claimants.

Solutions

Now, how do we get there? There are three sure ways:

1. We must make sure that the money gets only to

sick people.

The best way to ensure that is by the establishment

of court-mandated “‘pleural registries’’ or some similar

non-trial track docket.

By simply establishing a Pleural Registry and ordering

cases to it, Judges could make the trial track litigation

more manageable and unclog court dockets overnight.

A pleural registry would take the cases of all claimants

who do not have any asbestos-associated impairment off

the court’s active docket and suspend the statute of limi.

tations until the plaintiff becomes impaired.

Only then would he have the right to return to court

and have his case processed. It’s already being done in

some places, but to accomplish the previous goals of dis-

tributing money fairly, stopping new court filings, contain

ing transactional costs and keeping present defendants in

business, pleural registries must be implemented every

where. Otherwise, there simply isn’t enough money to pay

these claims nor enough courts to process them.

2. We must stop punitive damages.

Historically, punitive damages have been imposed on

defendants as punishment for intentionally causing harm

and as a deterrent to bad conduct. All punitive damage

awards punish, but in these asbestos cases they don’t act

as a deterrent. Why? Because these products haven’t been

made in decades, and no harm was intentionally caused—

at least not by Keene. What else can further awards of

punitive damages deter?

App. 65

As for punishment, Keene spent $8 million to buy BEH

in 1968 and has spent $400 million on this litigation. It

has been punished plenty! And, Keene has been punished

despite the fact that in our landmark insurance cove rage

case, Keene made billions of dollars available to compen-

sate sick claimants.

Sixteen bankruptcies are enough. The loss of tens of thou-

sands of jobs is enough. Awards of hundreds of millions

in punitive damage dollars are enough. In fact. 25% of

punitive damage awards since 1965 were in asbestos

cases. Enough!

But perhaps even more importantly, punitive awards are

windfalls for a few and will deprive compensation to pre-

sent and future meritorious claimants. There simply isn’t

enough money!

3. We must stop consolidations.

Consolidation of cases is used increasingly by some trial

judges to force settlements and to control their dockets.

This device actually is counter-productive. And it has re-

sulted in a significant increase in the rate of new asbes

tos claims filed. Why?

Well, as Judge William Butler of the Federal District

Court for the Southern District of Alabama 1 recognized

in his Cain opinion, large consolidations make it impossi-

ble for a defendant to get a fair trial. resulting in inflated

jury verdicts, which in turn create more incentive to file

more cases. When he granted a new trial in the Cain

opinion, he wrote:

“The congestion these cases caused in this district for

all civil litigants gives one a skewed view of how to re-

solve the problem. The ‘try as many as you can at one

tume’ approach is great if they all, or most, settle: but

when they don’t—and they didn’t here—thirteen sh ipyard

workers, their wives, or executors if they have died, got

NIP

i ik i

App 66

a chance to do something not many other civil litigants

can do—overwhelm a jury with evidence. Evidence that

would not have been admissible in any single plaintiffs

case, had these cases been tried separately. As the evi

dence unfolded in this case, it became more and more

obvious to this court that a process had been unleashed

that left the jury the impossible task of being able to

carefully sort out and distinguish the facts and law of

thirteen plaintiffs’ cases that varied greatly in so many

critical aspects. In the final analysis, the court is con-

vinced that the defendants did not receive a fair trial.”’

Not only are consolidations incompatible with doing

justice, they encourage the filing of tens of thousands of

additional cases.

Now there are also some other factors contributing to

perpetuation of the asbestos litigation disaster and more

judges could do to help solve it:

w The continued scheduling of trials for unimpaired

plaintiffs with the opportunity for huge verdicts, leads to

more filings. There’s a great incentive for plaintiffs’ at-

torneys to file new cases in which preparation has become

routinized—an easy one-third, or more, fee for little work

= You also have court rules or state laws or the inher-

ent power which would allow you to oversee and regulate

contingent fees, but other than Judge Shadur in the Con-

way case, I’m not aware of any judge who has used this

power. You should rethink this issue and superintend the

reasonableness of contingent fees.

Judge Weiner, in the federal Multi-District Litigation,

is considering many of the points I have mentioned to-

day and we support his efforts toward a fair and prompt

resolution of the federal cases

mt ST I BI PT IEG AT PGF CLO IE A EY RNS

App. 67

But the majority of cases are in the state courts. Unless

we stop the flood of filings and verdicts there, the asbes-

tos Monster will keep growing and your dockets will be

even more crowded than they are today.

So my earnest plea to you is to stop feeding this

Monster before it devours us all. Every judge with as-

bestos cases on his or her docket should seek sensible

solutions:

= To end asbestos litigation

= To preserve the jobs and the viability of defendant

companies, and

= To eliminate unnecessary costs that delay and de

prive impaired claimants of their recovery

Consolidations, repeated punitive damage awards. eas)

access to trial and watered-down burdens of proof hav

been attempted and have failed to achieve these goals

They just don’t work.

Where courts do not apply special rules that apply

to asbestos cases (‘‘Asbestos Law’’) and where they set

up pleural registries, court dockets are not clogged and

Cases gO away.

So the solutions are up to you.

Let me end this: just consider that Keene bought BEH

In 1968 for $8 million. The company already had warning

labels on its products. Keene stopped all production of

products containing some asbestos in 1972. Even when

BEH manufactured insulation products, those products

contained only 10% asbestos. Those products represented

15% of BEH sales. Those products represented only 2%

of Keene’s sales. BEH was losing money and was shut

down permanently in 1975.

PETS SPOOL IIIA PY” EP VOY. FFP POT PG ALBIN, CH OI NE PY ERT HME + PY Ne 88°

App. 68

o Despite this limited involvement, since 1975—for the last

17 years—Keene has spent $400 million defending and

resolving claims against BEH. If Keene had never bought

BEH, plaintiffs and their lawyers would have exhausted

BEH’s assets in 1980 and the insurance coverage door

might not have been opened. Keene now has only one

operating subsidiary—and its contracts, orders and em

ployees’ jobs are totally threatened by this litigation.

When I opened my remarks, I told you that I’ve been

described as cranky, irate, impolitic and lots more. If this

combination of events:

@ 2.000 new cases a month

es Continuing to pay fines for a company that stopped

existing 17 years ago, and

@ Spending millions to perpetuate the compensation of

undeserving claims and outrageous lawyers fees

were happening to you and your company, don't

you think you would be cranky, irate and impolitic too?

SP POP WS PF DBeghrrvy’ + BOLTS MES HS TH PE FY CPM PRT TO EP DYN iseal:

App. 69

OTHER QUOTES ON LITIGATION

AND THE ASBESTOS MONSTER

Overuse and abuse of the litigation-process is reducing

this nation’s competitiveness, raising the price of products

and eliminating thousands of American jobs

percent of the world’s attorneys—while Japan has on

lawyer for every 10,000 people

ryy ’ Cc ; a | ~ 4

The nation’s factory i0bs fell 15 percent hetween 1980

and 1990 while the country’s population increased by

milion

j 7 y

( 7797 mStice reforms are needed to create an adminis

, } ° }] ° } e J 7: ‘ +

rative solution fora present and future asbestos clarm

> y a ] 7,

Re forms are needed because more than 60 percent of

‘8 the mone if SPe nt so far on ashestos litigation has gone

O awyers.

» ] ] . . ] Ty l~h]

Reforms would unclog our courts and use available

inds to meet the needs of future meritorious claimants

For more information or additional reprints

write to Keene Corporation at

200 Park Avenue, New York, NY 10168

Or call (212) 557-1900

KEENE CORPORATION

er ee

App. 70

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 616

September Term, 1992

KEENE CORPORATION

ABATE, ET AL

Garrity

Bloom,

Motz,

Opinion by Motz, J.

Filed: July 1, 1992

The appeal before us is the most recent in the spate

of asbestos-related cases winding through the State’s court

system. The sole question with which we are now faced

is whether the Circuit Court for Baltimore City can con-

stitutionally enjoin Keene Corporation (‘‘Keene’’), one of

several defendants in a trial now underway, from adver-

tising its views, before the jury returns a verdict, on the

societal impact of the case and of asbestos litigation in

general. Because the First Amendment to the United

States Constitution and Article 40 of the Maryland Decla-

‘

ration of Rights prohibit such an injunction, on June 23,

App. 7]

1992, we entered a per curiam order vacating the lower

court’s order granting the injunction. We now explain the

reasons for our decision.

(1)

The trial below began in February of 1992. From the

outset, it has generated a great deal of public interest.

Members of the White Lung Association have staged nu-

merous demonstrations outside the courthouse. carrying

picket signs and handing out fliers. The demonstrations

at one point prompted the defendants, including Keene,

to move for an injunction against the demonstrators. The

trial court refused to grant the injunction because it “felt

on a balancing consideration” it “could favor the First

Amendment as [it] should and not have a risk to the jury”;

instead it instructed the jury to ignore the demonstrators

and to attempt to avoid them when entering and exiting

the courthouse. One protestor nevertheless managed to

corner a juror in a courthouse restroom in an effort to

relate to the juror a tragic story regarding an asbestos-re-

lated illness. The juror immediately reported the incident

to the court. The defendants moved for a mistrial which

the court, after questioning the juror and instructing her

to disregard the restroom conversation, denied.

On May 5, 1992, while evidence in the instant case was

still being presented, the plaintiffs/appellees (“plaintiffs’’)

filed a “Motion for an Order to Show Cause Against De-

fendant Keene Corporation.” The plaintiffs complained

that Keene’s president and chief executive officer, Glenn

W. Bailey, had improperly sent a letter ex parte to the

trial judge. They asked the court to enjoin Keene from

placing in local newspapers advertisements that might in-

terfere with the fair and impartial deliberations of the

’ . j | ’ T

! “he plaintiffs informed the tmal court that Keen

lant in similar litigation in Houston

naq peen a wngre

Texas. While the jury was deliberating in that case, Bailey

laced a paid odivertinunen! in the Houston Chronicle. As

a result of that advertisement, Keene was found in con

Llempt of court. In another asbestos case. also in Texas.

issued an order enjoining Keene from any fur

a judge

in any and

ther “‘advertising regarding asbestos litigation

all prt om vhich are published in Harris Count)

Texas” until the jury reached a verdict. The plaintiffs did

»|

en below that the advertisement in the Housto1

Chronicle was false or deceptive; in that advertisement

Bailey had sera that asbestos litigation had bank

rupted a dozen companies, that Keene alone could be re

quired to pay out millions “pr dollars, and that 60-percent

i the money would go to lawyers.

In the matter sub judice, the tnal court indicated that

t aborted”’ or “‘to allow

did not intend “to let this tnal be

undue publicity,’ and so set

the jury to be affected by

ig. Six

plaintiffs’ motion in for prompt briefing and heari

later, on May 11, 1992, after hearing argument fron

court com

{

lays

counsel, the trial court granted the motion. The

nted

Mr. Bailey does not have the absolute nght

lish anything he wants with regard to this case. He

is writing ex parte letters to this Court which is im

proper. But of more concern to me is the fact that

as I say, he takes out full page ads in newspapers

while juries are deliberating and that is absolutely

improper. He should not be allowed to communicate

with this jury and that is all that a full page ad in

tends to do is to improperly communicate with this

jury

to sign an order \ Pee n* adequat«

hich, in m)

I am going

to prevent him from placing such an ad \v

’ > > +7 - + | _ . ><) . rwitiy . +L,

view, nas no purpose otner than to iniluence tnis

jury.

In response to defense counsel’s argument that such an or

der would infringe upon Bailey—and Keene’s—First Amend

ment rights, the trial court stated: “I perceive a funda-

mental distinction between a newspaper reporter obtain

ing comment of both sides, Plaintiffs and Defendants, and

a man taking out a full-page ad during the pendency of

the case.”” On May 18, the court issued a written order

enjoining Keene from “advertising regarding asbestos

and/or asbestos litigation in any and all newspapers, tele-

vision, radio or other media in the Baltimore, Maryland

area during the pendency of this trial.”

Thereafter, on May 21, Keene placed a paid advertise

ment in the Philadelphia Jnquirer. In the advertisement,

Keene again complained of the high costs of asbestos liti-

gation and alleged that such litigation is “lawyer-inspired”’

and is causing “the unnecessary bankrupting of com-

panies.”” The company suggested legislation that it as-

serted would bring the perceived problem under control

and urged readers to support such legislation.

On May 13, pursuant to Maryland Courts & Judicial

Proceedings Code Annotated § 12-303(8\i), Keene timely

noted an appeal to this Court. Because of the important con-

stitutional question involved, we granted Keene’s request

to expedite consideration and advance the time for brief-

ing and oral argument. In the meantime, Keene moved

below to stay the injunction pending the instant appeal.

The trial court denied the motion in open court without

hearing argument from counsel. It did, however, offer fur-

ther explanation as to its reasons for initially granting

the injunction. The court referred to Glenn Bailey as a

“loose cannon” and remarked that, as far as possible

advertisements were concerned, “I don’t know what he

ADPDp

has in mind. And he doesn’t favor me with what he wants

to do.”’ It acknowledged that news articles about the trial

had been published throughout the pendency of the pro

ceedings, but again stated, “I see a big distinction be

tween a paid ad in the newspaper and a news article, per

se.”’ The court opined that “even though I have cautioned

my jury not to look at the newspapers, if they see a big

bold-faced, full-page advertisement in our phar

here, there is a risk that they will see it and look at it,

even fragmentarily, and I don’t think that a court na

to have to put up with that risk.’”’ The court commented,

on the other hand, that its instructions to the jurors to

avoid the demonstrators from the White Lung Associa

tion had ‘‘worked appropriately.”’ In regard to the adver

tisement in the Philadelphia Jnquirer, published after the

rder enjoining advertisements in the Baltimore area was

entered, the court commented that “it would be improper

for me to try to enjoin any publication in other news

apers outside of Maryland

(11)

There can be no dispute that the order enjoining Keene

from “advertising regarding asbestos and/or asbestos liti

gation” in any and all media outlets in the Baltimore area

during the pendency of the trial operates as a prior re-

straint on speech. A threshold question, however, is what

type of speech the order seeks to regulate. The order an

ticipates an attempt by Keene to place advertisements,

similar to those placed in Houston and Philadelphia, in

Baltimore area newspapers. The trial court’s distinction

“between a paid ad in the newspaper and a news article”

suggests that it believed the advertisement amounted to

commercial speech. If that was the case, the advertise

ments would be entitled only to limited protection under

the First Amendment and Article 40. See generally Vir

ginia Pharamcy Bd. v. Virginia Citizens Consumer Coun

cil, Inc., 425 U.S. 748, 770-73 (1976) (commercial speech

afforded First Amendment protection so long as it is not

false and misleading and so long as transactions proposed

in advertisement are not themselves illegal). See also

Freedman v. State, 233 Md. 498, 505 (1964), »ev’d on other

JS. 51 (1965) (Article 40 of the Maryland

Declaration of Rights is to be interpreted in pari materia

with the First Amendment). That is not the proper classi

fication of the advertisements, however.

grounds, 380 |

Commercial speech is defined as ‘“‘speech that proposes

a commercial transaction.” Board of Trustees, State Univ

of N.Y. v. Fox, 492 U.S. 469, 482 (1989) (emphasis omitted)

(citing Virginia Pharmacy Bd., 425 U.S. at 761-62). In

common parlance, “advertising” means “the action of calling

something . . . to the attention of the public{,] esp[ecially]

by means of printed or broadcast paid announcements.”

Webster’s Third New International Dictionary 31 (1981)

The mere fact that speech is published in the form of a

paid advertisement does not render it commercial speech

See New York Times Co. v. Sullivan, 376 U.S. 254. 266

(1964) (a paid advertisement, regarding the civil rights

movement, that “communicated information, expressed opin

ion, recited grievances, protested claimed abuses. and

sought financial support on behalf of a movement whose

existence and objectives are matters of the highest public

interest and concern” was not commercial speech).

The paid advertisements placed by Keene in the Houston

Chronicle and the Philadelphia Inquirer, like the pai

advertisement in New York Times v. Sullivan, addresse:

a matter of public concern. They expressed Keene’s point

of view, aired its grievances, and, in the case of the Phil

adelphia Inquirer advertisement, proposed legislative solu

]

eatin

tions. Although the message that asbestos litigation should

be controlled clearly promotes Keene’s economic interests,

the advertisements in no way “propose[d] a commercial

transaction.’” Roard of Trustees, State Univ. of N.Y., 492

U.S. at 482. ‘deed, Keene contends that it halted pro-

duction of asbestos products 20 years ago. In short, the

advertisements simply cannot be viewed as commercial

speech. Because there is no reason to believe that the

advertisements fall within any other category of speech

warranting less constitutional protection, we can conclude

only that they were fully protected.!

Even assuming, arguendo, that the advertisements amounted

to commercial speech, it seems clear that an order enjoining simi

lar advertisements in Baltimore area newspapers would be im

proper. The Supreme Court explained in Board of Trustees, State

Univ. of N.Y., 492 U.S. at 480, that even restrictions on commer

cial speech must be “narrowly tailored to achieve the desired ob

jective.”’ In the instant case, the trial court indicated that its ob

jective was to prevent interference with the fair and impartial

leliberations of the jury. As we shall discuss infra, however, we

are not persuaded that the ads posed a threat to those delibera-

tions or that, even if they did, the court’s solution was narrowly)

tailored. See e.g., Peele v. Attorney Reg. and Disciplinary Comm’n.,

U.S. ___, 110 S.Ct. 2281 (1990) (rule prohibiting attorneys

rom truthfully advertising that they were specialists in certain

areas of the law struck down because it promoted no substantial

state interest); Shapero v. Kentucky Bar Ass’n., 486 U.S. 466

(1988) (prohibition on truthful and non-deceptive direct-mail solici-

ation of potential clients by attorneys struck down because it

served no particular objective); Posadas de Puerto Rico Assoc.

Tourism Co., 478 U.S. 328 (1986) (Puerto Rican act prohibiting

gambling casinos Peso ‘adv ertising locally if such advertisements

were directed at residents rather than tourists upheld as being

no more extensive than necessary to protect Puerto Rico’s citizens

from the harmful effects of gambling); Jn re R.M.J., 455 U.S. 191

(1982) (Missouri Supreme Court rule that limited the categories

of information allowable in lawyer advertisements struck down be

cause it excluded relevant, truthful information and promoted no

substantial State interest); Linmark Associates, Inc. v. Willing

boro, 431 U.S. 85 (1977) (town ordinance that banned the posting

Footnote continued on following page

“[PJrior restraints on speech and publication are the

most serious and the least tolerable infringement on First

Amendment rights.” Nebraska Press Ass’n v. Stuart. 427

U.S. 539, 559 (1976) (striking down a court order that en-

joined, until the jury was impaneled, certain news cover-

age in connection with a criminal trial). Moreover. the

“conflict between the right to an unbiased jury and the

First Amendment is ‘almost as old as the Republic.’ ”’

Quinn. v. Aetna Life & Cas. Co., 482 F.Supp. 22, 27 (E.D.

N.Y. 1979), aff'd per curiam, 616 F.2d 38 (2nd Cir. 1980)

(quoting Nebraska Press Ass’n v. Stuart, 427 U.S. at 547).

Although the right to a fair trial is jealously guarded, a

court seeking to insure a fair trial may not impose a prior

restraint unless “the gravity of the ‘evil,’ discounted by

its improbability, justifies such invasion of free speech as

ls necessary to avoid the danger.” Nebraska Press Ass’n.

supra, 427 U.S. at 562 (quoting United States v. Dennis.

183 F.2d 201, 212 (2d Cir. 1950), affd, 341 U.S. 494 (1951).

In State v. Cottman Transmission. 75 Md. App. 647

(1988), this Court was called upon to determine the pro-

priety of a trial court’s order, issued in a civil case at

the defendant’s request, which closed the case file and

proceedings to all but the participants and prohibited all

communications with the press. Jd. at 649. The defendant.

an auto transmission company accused of various decep

tive business practices, had alleged that the State was

damaging the company’s reputation and business by com-

On117 ued

of residential “‘For Sale’ signs struck down because there was ni

indication that it served the stated goal of StabDllzing nelgnbo?

hoods, and because iess restrictive measures. such as posting “No

for sale signs, were avaliable)

App. 78

municating with the news media during the course of the

trial. Jd. at 653. We vacated the closure order in its en-

tirety, id. at 658, and vacated the ‘“‘gag order’”’ to the ex-

tent that it prohibited even those communications with

the press that did not concern the merits of the case. /d.

at 661. We explained that a gag order can be upheld only

‘‘1) if the party seeking the order can establish that the

speech to be restrained poses a ‘serious and imminent

threat’ of interference with the fair administration of

justice, . and 2) the order is ‘tailored as precisely as

possible to the exact needs of the case.’”’ Id. at 659 (cita-

tions omitted). See also, Journal Newspapers, Inc. v

State, 54 Md. App. 98, 110-12, affd, 297 Md. 68 (1983)

(in vacating an order that enjoined certain classes of peo-

ple from making extrajudicial statements regarding a

criminal trial, this Court explained that, once a movant

establishes “‘the need for any restriction . . . the [trial]

court [should] proceed to look at the alternative methods

of implementing the restriction, choosing always that or

those which will do the job in the least intrusive and

onerous manner’) (emphasis in original); CBS, Inc. v

Young, 522 F.2d 234, 238 (6th Cir. 1975) (in vacating an

order that prevented parties to civil litigation from com-

menting to the press, the court noted that ‘‘[t]o justify

imposition of a prior restraint, the activity restrained must

pose a clear and present danger, or a serious or imminent

threat to a protected competing interest. . . . The re-

straint must be narrowly drawn and cannot be upheld if

reasonable alternatives are available having a lesser im-

pact on First Amendment freedoms’’).

Although Cottman involved news coverage rather than

paid advertisements, the speech that was the subject of

the gag order, as in the instant case, was promulgated

by a party to the case. We noted in Cottman that “a trial

App. 79

court has the power to ‘proscribe[ ] extrajudicial state-

ments by any lawyer, party, witness, or court official

which [might] divulgef ] prejudicial matters... .’” 75 Md.

App. at 660 (quoting Sheppard v. Maxwell. 384 U.S. 333,

361 (1966)) (brackets added by Cottman Court). Such pro-

scriptions, however, must be narrowly tailored. See Id

at 699-61. In applying the two-prong test set forth in Cott

man to the particular facts of that case. we recognized

that the speech at issue there could indeed interfere with

the fair administration of justice by, in effect, trying the

case in the press. “Because the tailoring of the trial

court's gag order lacked the definition necessary to be

constitutionally appropriate, [however,] this Court altered

the order so as to provide a better constitutional fit.’’ Id

at 660-61.

The trial court’s order in the instant case fails to satisfy

either prong of the two-prong test enunciated in Cottman.

73 Md. App. at 659.2 Although the advertisements that

* The few cases relied upon by the plaintiffs do not hold to the

contrary; indeed, rather than supporting the issuance of the gag

order, these authorities demonstrate the weakness of plaintiffs’

claim. For example, although plaintiffs cite Landmark Commun;

cations, Inc. v. Virginia, 435 U.S. 829 (1978), for the proposition

that “government may limit speech when compelling government

interests outweigh free expression interests of the speaker,” in

fact, in Landmark, the Court held that the First Amendment pro

hibited criminal prosecution of those publishing truthful informa

tion regarding confidential judicial inquiry proceedings. See also

Gentile v. State Bar of Nevada, ___ U.S. ___. 111 S.Ct. 2720

(1991) (Supreme Court reversed lower court and held that a state’s

application of its rule prohibiting a lawyer from making extrajudi-

clal statements to the press violates the First Amendment); Shep

pard v. Marwell, 384 U.S. 333, 335-58 (1966) (even in face of re-

versal because of extremely prejudicial publicity and carnival-like

trial atmosphere, Supreme Court did not advocate prior restraint

of press or parties by the trial court

App. 8&0

appeared in the Houston Chronicle and the Philadelphia

Inquirer complained of the high costs of asbestos litiga-

tion, neither advertisement in any way addressed the

merits of a particular case. It simply cannot be said that

publication of similar advertisements by Baltimore area

media, even if viewed by the jurors, would pose a serious

and imminent threat to the fair administration of justice.

This Court has explained that the record must contain

support for a trial court’s finding that a prior restraint

is necessary to ensure a fair trial. Journal Newspapers,

supra, 54 Md. App. at 111. The record before us contains

no such support. Assuming, arguendo, that the sort of

advertisements at issue here could have an adverse ef-

fect upon the trial, steps short of the prior restraint in

question, such as careful instructions to the jury or even

sequestration, could be taken. See Nebraska Press Ass'n,

supra, 427 U.S. at 563-64 (setting forth alternatives to

be tried before resorting to prior restraint of speech). The

trial court, in denying Keene’s earlier request for an in-

junction, concluded that the jurors could ignore demonstra-

tors who were holding picket signs and distributing fliers

outside the courthouse; that decision has not been chal-

lenged on appeal. It seems clear that properly instructed

jurors could equally well ignore news articles and paid

advertisements in the local media.

In sum, we are sympathetic to the experienced, long-

suffering, trial judge’s understandable, indeed commend-

able, desire to avoid prejudicial publicity and not per-

mit this months-long trial to be ‘‘aborted.’”’ The First

Amendment and Maryland Declaration of Rights, how-

ever, prohibit the use of a prior restraint to accomplish

these goals absent the establishment of a serious and im-

minent threat to the fair administration of justice and an

order tailored to the exact needs of the particular case.

App x]

Here, such a threat was never demonstrated. nor was

such an order fashioned, and so we were required t

acate the judgment of the court below

Except for the Texas courts, discussed within, that have sanc-

tioned Keene in other cases, our conclusion here appears to be

in accord with that reached by every other court to consider the

propriety of a similar injunction on advertising. See Quinn v

Aetna Life & Cas. Co., supra, 482 F.Supp. at 27 (and numerous

cases cited therein); Rutledge v. Liability Insurance Industry, 487

F.Supp. 5 (W.D. La. 1979); New York Public Interest Research

Group, Inc. v. Insurance Information Institute, 531 N.Y.S.2d 1002

Sup. Ct. 1988), affd, 554 N.Y.S.2d 590 (1990); Kenner [sic] v. Mon-

santo Co., 492 N.E.2d 1327 (Ill. 1986

-— ent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.