PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11-2026

________________

PATRICIA WRIGHT; KEVIN WEST, 

on behalf of themselves 

and all others similarly situated,

Appellants

v.

OWENS CORNING

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-01567)

District Judge: Honorable Joy Flowers Conti

________________

Argued November 17, 2011

Before: RENDELL, AMBRO, and 

NYGAARD, Circuit Judges

(Opinion filed: May 18, 2012)
2

Jason T. Baker, Esquire

Michael A. McShane, Esquire

Audet & Partners

221 Main Street, Suite 1460

San Francisco, CA 94105

David Alexander Barnes, Esquire (Argued)

Charles M. Golden, Esquire

Obermayer, Rebmann, Maxwell & Hippel

1617 John F. Kennedy Boulevard

One Penn Center, 19th Floor

Philadelphia, PA 19103-0000

Robert J. Cynkar, Esquire

Cuneo, Gilbert & LaDuca

106-A South Columbus Street

Alexandria, VA 22314

James T. Davis, Esquire

Davis & Davis

107 East Main Street

Uniontown, PA 15401-0000

Clayton D. Halunen, Esquire

Shawn J. Wanta, Esquire

Halunen & Associates

1650 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

Charles J. LaDuca, Esquire

Brendan S. Thompson, Esquire

Cuneo, Gilbert & LaDuca
3

507 C Street, N.E.

Washington, DC 20002-0000

Arnold Levin, Esquire

Charles E. Schaffer, Esquire

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Suite 500

Philadelphia, PA 19106-0000

Robert K. Shelquist, Esquire

Lockridge Grindal Nauen

100 Washington Avenue South, Suite 2200

Minneapolis, MN 55401-0000

Counsel for Appellants

Elizabeth M. Chiarello, Esquire

Michael W. Davis, Esquire

Colleen M. Kenney, Esquire

Kara L. McCall, Esquire (Argued)

Sidley Austin

One South Dearborn Street

Chicago, IL 60603

Matthew T. Logue, Esquire

Arthur H. Stroyd, Jr. Esquire

Del Sole Cavanaugh Stroyd

The Waterfront Building

200 First Avenue, Suite 300

Pittsburgh, PA 15222

Counsel for Appellee
4

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

This appeal concerns the application of our recent 

decision in JELD-WEN, Inc. v. Van Brunt (In re Grossman’s 

Inc.), 607 F.3d 114 (3d Cir. 2010), establishing a new test for 

determining when a “claim” exists under the Bankruptcy 

Code, 11 U.S.C. §§ 1101 et seq. Plaintiffs Patricia Wright 

and Kevin West (collectively, the “Plaintiffs”) filed a putative 

class action seeking damages related to defects in roofing 

shingles manufactured by Owens Corning.1 The District 

Court granted Owens Corning‟s motion for summary 

judgment, determining that the Plaintiffs‟ claims were 

discharged under the confirmed reorganization plan (the 

“Plan”) of Owens Corning and certain of its subsidiaries 

(collectively, the “Debtors”). Specifically, the Court held

that, based on Grossman’s, the Plaintiffs held “claims” under 

the Code, and that the published notices of the Debtors‟ 

Chapter 11 bankruptcy cases afforded them procedural due 

process. We agree that the Plaintiffs held claims under the 

Code, but, under the circumstances before us, disagree that

they were afforded procedural due process. Hence their

claims were not discharged. We thus affirm in part and 

reverse in part the Court‟s judgment, and remand the case for 

further proceedings.

 

1

The Plaintiffs incorrectly named Owens Corning as the 

defendant rather than Owens Corning Sales LLC. 

Nonetheless, we continue to refer to the defendant as “Owens 

Corning.” 
5

I. Background

The Plaintiffs‟ story presents the challenge of 

administering unknown future claims in bankruptcy. In late 

1998 or early 1999, Wright hired a contractor, who installed 

shingles manufactured by Owens Corning on her roof. In 

2005, West similarly hired a contractor, who likewise 

installed shingles manufactured by Owens Corning on his 

roof. They both discovered leaks in 2009, and determined 

that the shingles had cracked. Each sent warranty claims to 

Owens Corning. It rejected Wright‟s claim in part and West‟s 

claim in full. In November 2009, Wright filed a class action 

against Owens Corning alleging fraud, negligence, strict 

liability, and breach of warranty. West later was added as a 

named plaintiff.

Meanwhile, back in October 2000, the Debtors filed 

their Chapter 11 bankruptcy petitions. In November 2001, 

the Bankruptcy Court set a claims bar date of April 15, 2002. 

All claimants were required to file proofs of claim on or 

before that date. It also approved a bar date notice, which 

was published twice in The New York Times, The Wall 

Street Journal, and USA Today, among other publications. 

The notice directed claimants to file proofs of claim if they 

held claims2that arose prior to the filing of the Debtors‟ 

bankruptcy cases. It specifically identified claims relating to 

“the sale, manufacture, distribution, installation and/or 

marketing of products by any of the Debtors, including 

without limitation . . . roofing shingles . . . .” 

 

2

The notice defined “claim” as it is defined in the Bankruptcy 

Code: “[a] right to payment, whether or not such right is 

reduced to judgment, liquidated, unliquidated, fixed, 

contingent, matured, unmatured, disputed, undisputed, legal, 

equitable, secured, or unsecured . . . .” 11 U.S.C § 101(5). 
6

The Debtors‟ bankruptcy proceedings resulted in the 

filing of the Plan in June 2006. Soon after, the Bankruptcy 

Court approved notices of the confirmation hearing for the 

Plan, including a generic notice to most unknown claimants.3 

This notice was published in The New York Times, The Wall 

Street Journal, and USA Today, among other publications. It 

stated, in bold, that the Plan might affect the rights of holders 

of claims against the Debtors. 

Two other notices of the Debtors‟ bankruptcy 

proceedings also were published. In June 2006, notice of the 

hearing to consider the disclosure statement was published in 

The New York Times, The Wall Street Journal, USA Today, 

and the Toledo Blade. In November 2006, notice of the

Plan‟s date of confirmation, September 26, 2006 (the 

“Confirmation Date”), was published in the same four 

publications. The Plan provided for the discharge of all 

claims relating to the Debtors under the Bankruptcy Code that 

 

3

For notice purposes, claimants are divided into “known” and 

“unknown.” A “known” claimant (or creditor) “is one whose 

identity is either known „or reasonably ascertainable by the 

debtor.‟” Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d 

Cir. 1995) (quoting Tulsa Prof’l Collection Serv., Inc. v. 

Pope, 485 U.S. 478, 490 (1988)). In contrast, “[a]n 

„unknown‟ creditor is one whose „interests are either 

conjectural or future or, although they could be discovered 

upon investigation, do not in due course of business come to 

knowledge [of the debtor].‟” Id. (quoting Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306 (1950)) (second 

alteration in original). On appeal, the parties do not contest 

that the Plaintiffs were unknown claimants. 
7

arose before the Confirmation Date.

4

 The order confirming 

the Plan (the “Confirmation Order”) likewise provided that all 

claims arising before the Confirmation Date were discharged. 

When the Plaintiffs filed their class action, there was 

little dispute as to the effect of Owens Corning‟s bankruptcy

on the Plaintiffs‟ claims against it. Based on our muchmaligned decision in Avellino v. M. Frenville Co. (In re M. 

Frenville Co.), 744 F.2d 332 (3d Cir. 1984), a “claim” under 

the Bankruptcy Code did not arise until a cause of action 

accrued under applicable non-bankruptcy law—that is, when 

a claimant possessed a right to payment. In this context, the 

Plaintiffs‟ cause of action did not accrue until the defects in 

the roofing shingles manifested in 2009, years after the 

Confirmation Date.5 Thus, at the time they filed the class 

action, the Plaintiffs were correct to conclude that they did 

not hold “claims” under the Code based on the action. But 

subsequently we overruled Frenville with our en banc

 

4

Section 1141 of the Bankruptcy Code provides that 

“confirmation of a plan . . . discharges the debtor from any 

debt that arose before the date of such confirmation, . . . 

whether or not (i) a proof of the claim based on such debt is 

filed . . . ; (ii) such claim is allowed . . . ; or (iii) the holder of 

such claim has accepted the plan.” 11 U.S.C. 

§ 1141(d)(1)(A). “Debt” is defined as liability on a claim. Id.

§ 101(12).

5

This assumes that the applicable law comes from either 

Illinois or Pennsylvania, the states where the Plaintiffs reside. 

Under either‟s law, as with most states‟ laws, a right to 

payment does not accrue until a product defect is evident and 

an individual suffers actual damages. See Hermitage Corp. v. 

Contractors Adjustment Co., 651 N.E.2d 1132, 1135 (Ill. 

1995); Gibson v. Commonwealth, 415 A.2d 80, 83 (Pa. 1980).
8

decision in Grossman’s, in which we rejected Frenville‟s

“accrual test,” and in its place established the rule that a 

“„claim‟ arises when an individual is exposed pre-petition to a 

product or other conduct giving rise to an injury, which 

underlies a „right to payment‟ under the Bankruptcy Code.” 

607 F.3d at 125. 

Based on Grossman’s, Owens Corning filed its motion 

for summary judgment, arguing that the Plaintiffs‟ claims 

were discharged under the Plan and Confirmation Order. 

Before the District Court, the Plaintiffs argued that 

Grossman’s is limited to asbestos-related cases, it does not 

apply retroactively, and they were not afforded due process 

because the notices of the bankruptcy proceedings were

insufficient. The Court rejected these arguments, holding that 

the Plaintiffs‟ claims were discharged under the Plan and 

Confirmation Order. 

On appeal, the Plaintiffs advance two arguments. 

First, they argue that the District Court applied Grossman’s

too rigidly, creating the unworkable result that persons who 

did not anticipate future tort actions at the time of a 

bankruptcy proceeding nonetheless possess claims under the 

Bankruptcy Code that are discharged. The test set out in 

Grossman’s, they assert, requires that the debtor and claimant 

anticipate a future tort action at the time of the bankruptcy 

proceedings for a claim to exist. Second, they claim that the 

District Court‟s due process analysis fell short because it 

based its ruling on our precedent holding that unknown 

claimants generally are entitled to notification by publication.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. 

§§1332(a) and (d)(2). We have jurisdiction to review the 

Court‟s final order under 28 U.S.C. § 1291. We review a 
9

district court‟s grant of summary judgment de novo. MBIA 

Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir. 

2005). Summary judgment is appropriate when “the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law.” 

Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 

1995) (quoting Fed. R. Civ. P. 56(c)). “All reasonable 

inferences from the record must be drawn in favor of the 

nonmoving party,” and we “may not weigh the evidence or 

assess credibility.” MBIA Ins., 426 F.3d at 209. For there to 

be a genuine issue of material fact, the non-moving party 

must produce evidence “such that a reasonable jury could 

return a verdict for” it. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986).

III. Grossman’s and “Claims” under the Bankruptcy 

Code

A. Waiver

In addressing whether the Plaintiffs held claims under 

the Bankruptcy Code, we first confront the effect of their

failure to advance to the District Court their argument on 

appeal regarding Grossman’s. Before the District Court, the 

Plaintiffs contended only that Grossman’s is limited to 

asbestos-related claims and should not apply retroactively. 

They advance neither argument to us. We generally follow “a 

well established principle that it is inappropriate for an 

appellate court to consider a contention raised on appeal that 

was not initially presented to the district court.” Lloyd v. 

Hovensa, 369 F.3d 263, 27273 (3d Cir. 2004). Yet this 

principle “is one of discretion rather than jurisdiction,”

Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir. 

1983), and we may consider an argument raised for the first 
10

time on appeal in “exceptional circumstances,” such as the 

when the “public interest . . . so warrants.” Barefoot 

Architect, Inc. v. Bunge, 632 F.3d 822, 83435 (3d Cir. 2011) 

(quoting Rogers v. Larson, 563 F.2d 617, 620 n.4 (3d Cir. 

1977)); see also Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 

(3d Cir. 2011) (noting that “„the matter of what questions may 

be taken up and resolved for the first time on appeal is one 

left primarily to the discretion of the courts of appeals, to be 

exercised on the facts of individual cases‟” (quoting Council 

of Alter. Pol. Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 

1999)). The principle also is best applied to issues that are 

fact-dependent or the resolution of which on a basis not 

argued to the district court will surprise the parties. Barefoot 

Architect, 632 F.3d at 835. 

We believe that the “public interest” weighs heavily 

toward our consideration of whether the Plaintiffs held claims

under the Bankruptcy Code. What constitutes a claim has the 

potential to affect a wide range of proceedings, the issue is 

purely legal, the scope of Grossman’s is generally at issue in 

this case, and addressing whether the Plaintiffs held claims

will clarify the test we established in Grossman’s. This is an 

appropriate situation for us to exercise our discretion.

B. “Claims” Under the Bankruptcy Code

Consideration of the treatment of unknown future 

claims involves two competing concerns: the Bankruptcy 

Code‟s goal of providing a debtor with a fresh start by 

resolving all claims arising from the debtor‟s conduct prior to 

its emergence from bankruptcy; and the rights of individuals

who may be damaged by that conduct but are unaware of the 

potential harm at the time of the debtor‟s bankruptcy. In 

overruling Frenville‟s “accrual test,” we recognized that it

had been “universally rejected” based on its conflict with the 

Code‟s broad definition of the term “claim.” Grossman’s,
11

607 F.3d at 12021 (quoting Cadleway Props., Inc. v. 

Andrews (In re Andrews), 239 F.3d 708, 710 n.7 (5th Cir. 

2001)). To repeat, in its place we adopted the rule that a 

“„claim‟ arises when an individual is exposed pre-petition to a 

product or other conduct giving rise to an injury, which 

underlies a „right to payment‟ under the Bankruptcy Code.” 

Id. at 125. This rule reflects the Code‟s expansive treatment 

of claims even if, as we acknowledged, that treatment is to the

“disadvantage [of] potential claimants, such as tort claimants, 

whose injuries were allegedly caused by the debtor but which 

have not yet manifested and who therefore had no reason to 

file claims in the bankruptcy.” Id. at 122. 

The rule is an amalgam of the two tests that other 

Courts of Appeals generally follow—the conduct test and the 

pre-petition relationship test. Under the former, a claim arises 

“when the acts giving rise to [the] liability were performed, 

not when the harm caused by those acts was manifested.” Id.

See Watson v. Parker (In re Parker), 313 F.3d 1267 (10th Cir. 

2002); Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir. 

1988). Under the pre-petition relationship test, “a claim 

arises from a debtor‟s pre-petition tortious conduct where 

there is also some pre-petition relationship between the debtor 

and the claimant, such as a purchase, use, operation of, or 

exposure to the debtor‟s product.” Grossman’s, 607 F.3d at 

123. See Epstein v. Official Comm. of Unsecured Creditors 

(In re Piper Aircraft Corp.), 58 F.3d 1573, 1576 (11th Cir. 

1995); Lemelle v. Universal Mfg. Corp., 18 F.3d 1268 (5th 

Cir. 1994); United States v. LTV Corp. (In re Chateaugay 

Corp.), 944 F.2d 997 (2d Cir. 1991). Cf. ZiLOG, Inc. v. 

Corning (In re ZiLOG, Inc.), 450 F.3d 996 (9th Cir. 2006) 

(adopting a “fair contemplation” test, which is similar to the 

pre-petition relationship test). Drawing on the tests‟

similarities, we noted that in the typical case “there seems to 

be something approaching a consensus among the courts that 

a prerequisite for recognizing a „claim‟ is that the claimant‟s 
12

exposure to a product giving rise to the „claim‟ occurred prepetition, even though the injury manifested after the 

reorganization.” Grossman’s, 607 F.3d at 125. Consistent 

with that consensus, the Grossman’s test requires that a 

claimant be exposed to a debtor‟s product or conduct prepetition. It requires individuals to recognize that, by being 

exposed to a debtor‟s product or conduct, they might hold 

claims even if no damage is then evident. 

As applied to the Plaintiffs, we easily conclude that 

Wright held a claim. She purchased shingles manufactured 

by Owens Corning in late 1998 or early 1999. Her exposure 

to Owens Corning‟s products predated its bankruptcy 

petition. We applied the test announced in Grossman’s

retroactively to the claimants in that case. Id.; see also In re 

Rodriguez, 629 F.3d 136 (3d Cir. 2010) (retroactively 

applying Grossman’s to Chapter 13 bankruptcy proceedings 

begun in 2007). We thus apply the Grossman’s test 

retroactively to Wright to conclude that she held a claim. 

Whether West held a claim is less obvious. He

purchased his shingles in 2005, after Owens Corning filed its 

bankruptcy petition but before the Plan was confirmed. In 

Grossman’s, we were not confronted with post-petition, preconfirmation exposure, and thus based our test on pre-petition 

exposure. We, however, noted that the Eleventh Circuit 

Court has extended the pre-petition relationship test to postpetition, pre-confirmation relationships. Grossman’s, 607 

F.3d at 124 (citing In re Piper, 58 F.3d at 1577). It reasoned 

that “changing the focal point of the relationship from the 

petition date to the confirmation date” would be more 

consistent with the policies underlying the Bankruptcy Code, 

including its broad definition of the term “claim” to afford 

debtors a fresh start. In re Piper, 58 F.3d at 157758 n.5. 

Indeed, the Code provides that confirmation of a plan 

“discharges the debtor from any debt that arose before the 
13

date of such confirmation.” 11 U.S.C. § 1141(d)(1)(A)

(emphasis added). See also id. § 348(d) (providing, in the 

context of conversion from a Chapter 11 or Chapter 13

proceeding to a Chapter 7 proceeding, that claims other than 

priority claims arising after the petition date, but before 

conversion, are treated as pre-petition claims in the Chapter 7 

proceeding); id. § 502(e) (providing that “a claim for 

reimbursement or contribution . . . that becomes fixed after 

the commencement of a case” is a pre-petition claim for 

purposes of allowance). 

Not extending our test to post-petition, but preconfirmation, exposure would unnecessarily restrict the 

Bankruptcy Code‟s expansive treatment of “claims” that we 

recognized in Grossman’s. It also would separate artificially 

individuals who are affected by a debtor‟s products or 

conduct pre-petition from those who are affected after the 

debtor‟s filing of its bankruptcy petition but before 

confirmation of a plan. We thus restate the test announced in 

Grossman’s to include such exposure and hold that a claim 

arises when an individual is exposed pre-confirmation to a 

product or other conduct giving rise to an injury that underlies 

a “right to payment” under the Code. As West‟s exposure to 

Owens Corning‟s shingles occurred pre-confirmation, he also 

held a claim.

IV. Due Process

Though the Plaintiffs held claims under the 

Bankruptcy Code, those claims may not have been discharged 

by the Plan and Confirmation Order. Discharge of the claims 

of future unknown claimants raises questions regarding due 

process.

6

 Notice is “[a]n elementary and fundamental 

 

6 Having determined that the Plaintiffs held “claims” under 

the Code based on Grossman’s, the District Court first held 
14

requirement of due process in any proceeding which is to be 

accorded finality . . . .” Mullane v. Cent. Hanover Bank & 

Trust Co., 339 U.S. 306, 314 (1950). Lack or inadequacy of 

notice of a bankruptcy prevents a claimant from having the 

opportunity to participate meaningfully in a bankruptcy 

proceeding to protect his or her claim. See 11 U.S.C. 

§ 342(a) (“There shall be given such notice as is appropriate . 

. . of an order for relief . . . under [the Bankruptcy Code].”).

Inadequate notice accordingly “precludes discharge of a claim 

in bankruptcy.” Chemetron Corp. v. Jones, 72 F.3d 341, 346 

(3d Cir. 1995).

As the District Court noted, we generally hold that for

unknown claimants, like the Plaintiffs, notice by publication

in national newspapers is sufficient to satisfy the 

requirements of due process, particularly if it is supplemented 

by notice in local papers. Id. at 34849. But whether 

 

that the claims were discharged pursuant to the Confirmation 

Order before considering whether the notices afforded the 

Plaintiffs due process, a concept rooted in fairness and 

applicable to bankruptcy through the Fifth Amendment of our 

Constitution. See SLW Capital, LLC v. Mansaray-Ruffin (In 

re Mansaray-Ruffin), 530 F.3d 230, 245 (3d Cir. 2008). 

However, if a claimant is not afforded due process, a plan of 

reorganization and confirmation order that purport to 

discharge claims will not do so. See Grossman’s, 607 F.3d at 

127 (“A court therefore must decide whether discharge of the 

. . . claims would comport with due process, which may invite 

inquiry into the adequacy of the notice . . . .”); Jones v. 

Chemetron Corp., 212 F.3d 199, 209 (3d Cir. 2000) (“[I]f a 

potential claimant lacks sufficient notice of a bankruptcy 

proceeding, due process considerations dictate that his or her 

claim cannot be discharged by a confirmation order.”). 
15

adequate notice has been provided depends on the 

circumstances of a particular case. Grossman’s, 607 F.3d at 

127. Due process requires “notice reasonably calculated, 

under all the circumstances, to apprise interested parties of 

the pendency of the action and afford them an opportunity to 

present their objections.” Mullane, 339 U.S. at 314; see also 

SLW Capital, LLC v. Mansaray-Ruffin (In re MansarayRuffin), 530 F.3d 230, 239 (3d Cir. 2008) (“The level of 

process due to a party prior to the deprivation of a property 

interest . . . is highly dependent on the context. As the 

Supreme Court has repeatedly emphasized, „[t]he very nature 

of due process negates any concept of inflexible procedures 

universally applicable to every imaginable situation.‟” 

(quoting Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 

196 (2001)) (alteration in original)). 

Though the Debtors‟ notices were sufficient as to most 

unknown claimants, the Plaintiffs‟ situation differed

significantly from that of the typical unknown claimant. At 

the time the Plaintiffs received their notices, Frenville was the

law in our Circuit (though we refrain from saying “good” 

law). As noted, under the Frenville test the Plaintiffs did not 

hold “claims” under the Bankruptcy Code. On reading the 

notices, the Plaintiffs could only understand that their rights 

would not be affected in any way by the referenced

proceedings, and thus, correctly, would not have taken any 

action to ensure that their interests were represented. Not 

until we overturned Frenville and established our new test for 

determining when a claim exists under the Code did the 

Plaintiffs unexpectedly hold “claims” that arguably could be 

discharged in the proceedings addressed in the notices. By 

that time, however, the bar date had passed, the Confirmation 

Order had been entered, and the Confirmation Date had 

occurred, each of which affected the Plaintiffs‟ newfound

claim status without an opportunity for them to be heard. 

Due process affords a re-do in these special situations to be 
16

sure all claimants have equal rights. We thus hold that, for 

persons who have “claims” under the Bankruptcy Code based 

solely on the retroactive effect of the rule announced in 

Grossman’s, those claims are not discharged when the notice 

given to those persons was with the understanding that they 

did not hold claims.

7

 

 

7 Given our reliance on the exceptional circumstances created 

by the retroactive application of Grossman’s, we express no 

opinion on the broader issue of whether discharging unknown 

future claims comports with due process. See generally

Laura B. Bartell, Due Process for the Unknown Future Claim 

in Bankruptcy—Is This Notice Really Necessary?, 78 AM.

BANKR. L.J. 339 (2004). In this vein and consistent with our 

statements that whether due process has been provided 

depends on the circumstances of a particular case, our holding 

is not a bright-line rule that all persons with unknown future 

claims once governed by Frenville could not have been 

provided due process regardless of the adequacy of notice to 

those future claimants. 

For example, in some bankruptcy proceedings a future claims 

representative is appointed to represent and protect the 

interests of persons with future unknown claims. These 

representatives are appointed, in part, to address the broader 

issue of whether discharging unknown future claims comports 

with due process. See, e.g., id. at 340. Indeed, future claims 

representatives have been appointed by courts 

notwithstanding their conclusion that those unknown persons 

did not hold “claims” under the Bankruptcy Code. See, e.g., 

New Nat’l Gypsum Co. v. Nat’l Gypsum Co. Settlement Trust 

(In re Nat’l Gypsum Co.), 219 F.3d 478, 48081 (5th Cir. 

2000); In re Amatex Corp., 755 F.2d 1034, 1043 (3d Cir. 
17

Because we now explicitly extend the Grossman’s test 

to include post-petition, pre-confirmation exposure to a 

debtor‟s conduct or product, there are two groups of persons

holding “claims” based on the Grossman’s test who, at the 

time they were given notice of a bankruptcy proceeding, 

would understand that they did not hold claims. The first 

group comprises those who hold claims based on Grossman’s

rejection of the Frenville test—that is, persons exposed to a 

debtor‟s conduct or product pre-petition. As to these persons, 

due process calls for the outcome of the Frenville test to 

apply for bankruptcy cases in which reorganization plans are 

proposed and confirmed prior to June 2, 2010, when 

Grossman’s was decided. After that date, persons exposed to 

a debtor‟s conduct or product pre-petition are deemed to

understand that they held claims. 

In contrast, because the Grossman’s test is limited to 

pre-petition exposure, persons exposed to a debtor‟s conduct 

 

1985). Because a future claims representative was not 

appointed in these bankruptcy cases, we leave open whether, 

when such a representative provides persons with unknown 

future claims an opportunity to participate in the bankruptcy 

case through that representation, they are afforded due 

process through otherwise adequate notice to the future 

claims representative. See, e.g., Jones v. Chemetron Corp., 

212 F.3d 199, 209 (3d Cir. 2000) (“[I]f a potential claimant 

lacks sufficient notice of a bankruptcy proceeding, due 

process considerations dictate that his or her claim cannot be 

discharged by a confirmation order. Such due process 

considerations are often addressed by the appointment of a 

representative to receive notice for and represent the interests 

of a group of unknown creditors.” (internal citations 

omitted)). 
18

or product post-petition, but pre-confirmation, would 

continue to conclude that they did not hold claims. Hence the 

second group is comprised of persons who hold claims based 

on our decision today extending the Grossman’s test. Due 

process requires that the outcome of the Frenville test will 

continue to apply to their claims in bankruptcy cases where

reorganization plans are proposed and confirmed prior to the 

date of today‟s decision.

* * * * *

Because at the time of the Confirmation Date Frenville

controlled the status of their “claims,” the Plaintiffs were not 

afforded due process. Accordingly their claims were not 

discharged by the Plan and Confirmation Order, and they

retained their cause of action against Owens Corning. In this 

context, the District Court correctly determined that the 

Plaintiffs held “claims” under the Bankruptcy Code. But it 

should not have held that those claims were discharged, and 

thereby granted summary judgment to Owens Corning, in the 

circumstances before us. We thus affirm in part and reverse 

in part the District Court‟s judgment, and remand the case to 

that Court for further proceedings. The shadow of Frenville

fades, but more slowly than we would like.