655 Fifteenth Street, N.W.

Washington, D.C. 20005

Eugene F. Assaf, P.C.

To Call Writer Directly:

(202) 879-5196

eugene.assaf@kirkland.com

(202) 879-5000

www.kirkland.com

Facsimile:

(202) 879-5200

June 22, 2015

The Honorable Jose L. Linares The Honorable Joseph A. Dickson

United States District Judge, United States Magistrate Judge,

U.S. District Court, District of New Jersey U.S. District Court, District of New Jersey

U.S. Courthouse U.S. Courthouse

50 Walnut Street 50 Walnut Street

Newark, NJ 07101 Newark, NJ 07101

Re: Williams, et al. v. BASF Catalysts LLC, et al., 2:11-cv-01754-JLL-JAD

Dear Judges Linares and Dickson:

On behalf of defendants in the above-captioned case, and in anticipation of the 

conference with Magistrate Judge Dickson on June 25, 2015, I write to respond briefly to certain 

new issues raised in plaintiffs’ May 29, 2015 letter [Dkt. #151] (“Pls.’ Ltr.”). That letter 

underscores the uncertainty plaintiffs are creating about what is at issue in this case, and thus 

confirms the need for motions practice before discovery can begin. 

First, plaintiffs have taken varying positions as to whether they have pleaded a claim for 

compensatory damages. Plaintiffs in their May 4, 2015 submission indicated that they would 

request “an order permitting amendment by interlineation” because they “inadvertently omitted” 

a request for compensatory damages in their first amended complaint. Dkt. 148 at 3. After 

defendants pointed out in their letter of May 18, 2015 that plaintiffs did not “inadvertently 

omit[]” such a request, but rather did so intentionally and strategically, plaintiffs took the 

position that their amended complaint already “alleges the basis for compensatory relief.” Pls.’ 

Ltr. 3. But paragraph 340 of the amended complaint, upon which plaintiffs rely, does not request 

damages in this case—it merely alleges that plaintiffs “will incur, or already have incurred 

pecuniary losses and damages,” Dkt. 70 at ¶ 340, which plaintiffs previously indicated they 

would pursue in their underlying asbestos cases in other courts, should those cases be reopened. 

This is why plaintiffs still request that “they be permitted to add by interlineation the words 

‘compensatory and’ before the word ‘punitive’ in [the] Demand for Relief.” Pls.’ Ltr. at 3.

Second, plaintiffs are taking apparently shifting positions on which relief is being sought 

by the class representatives, as compared to the class as a whole. In their May 4, 2015 

submission, plaintiffs claimed that the class representatives would seek “compensatory” 

damages, but that the rest of the class “on a class action basis” would seek only “declaratory and 

Chicago Hong Kong London Los Angeles Munich New York Palo Alto San Francisco Shanghai

Case 2:11-cv-01754-JLL-JAD Document 154 Filed 06/22/15 Page 1 of 4 PageID: 4179
June 22, 2015

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injunctive relief.” Dkt. 148 at 1. After defendants in their May 18, 2015 letter pointed out the 

many problems created by class representatives seeking different relief from the class as a whole, 

plaintiffs switched course and now say that the “compensatory damages are specifically pled in 

¶ 340 of the Amended Complaint and include the costs associated with prosecuting this 

litigation, which are common to all Class Members.” Pls.’ Ltr. at 2; see also id. (claiming that 

plaintiffs are seeking “relief common to all members of the class — Named Plaintiffs and 

putative class members alike”). Thus, in addition to expanding their request for relief to include 

compensatory damages that had been purposefully dropped, plaintiffs evidently now seek to 

expand the group of plaintiffs seeking those damages. 

Finally, plaintiffs’ most recent submission further confuses the issues by claiming that 

“[i]n addition to the relief sought in this case,” which would now include compensatory 

damages, the plaintiffs “may collect additional damages in their individual actions,” i.e., their 

underlying closed asbestos cases, should those cases be reopened. Pls.’ Ltr. 2. According to 

plaintiffs, they could pursue additional damages in their “home state court using any declaratory 

relief obtained here.” Id. (emphasis omitted). But this is directly contrary to what the Third 

Circuit held in this case, namely, that under Article III plaintiffs could not “request[] declarations 

(or injunctions) determining rights and defenses available to BASF and Cahill in future 

proceedings.” Williams v. BASF Catalysts LLC, 765 F.3d 306, 327-28 (3d Cir. 2014).

Plaintiffs are generating significant uncertainties about what is actually at stake in this 

case—uncertainties that affect both the viability of plaintiffs’ claims and the nature of their class 

allegations. This confirms the need for further motions practice before discovery commences.

Very truly yours,

/s/ Eugene F. Assaf

Eugene F. Assaf, P.C.

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June 22, 2015

Page 3

Date: June 22, 2015 Respectfully submitted,

/s/ Stephen M. Orlofsky

Eugene F. Assaf, P.C. 

Michael F. Williams

Daniel A. Bress

Peter A. Farrell

KIRKLAND & ELLIS LLP

655 15th St., N.W.

Washington, D.C. 20005

Phone: (202) 879-5000

Facsimile: (202) 879-5200

Counsel for Defendant 

BASF Catalysts LLC

Stephen M. Orlofsky

New Jersey Resident Partner

David C. Kistler

Blank Rome LLP

301 Carnegie Center, 3rd Floor

Princeton, NJ 08540

Phone: (609) 750-2646

Facsimile: (609) 750-7701

Counsel for Defendant 

BASF Catalysts LLC

/s/ Robert E. Ryan

John K. Villa 

David S. Blatt

Grant Geyerman

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

Attorneys for Cahill Gordon & Reindel LLP (f/k/a 

Cahill Gordon & Reindel), Howard G. Sloane, 

Ira J. Dembrow, and Scott A. Martin

Robert E. Ryan

Marc D. Haefner

Craig Demareski

CONNELL FOLEY LLP

85 Livingston Avenue

Roseland, NJ 07068

(973) 535-0500

Attorneys for Cahill Gordon & Reindel LLP (f/k/a 

Cahill Gordon & Reindel), Howard G. Sloane, 

Ira J. Dembrow, and Scott A. Martin

Case 2:11-cv-01754-JLL-JAD Document 154 Filed 06/22/15 Page 3 of 4 PageID: 4181
June 22, 2015

Page 4

/s/ Walter F. Timpone

Walter F. Timpone

Walter R. Krzastek

McELROY, DEUTSCH, MULVANEY &

CARPENTER, LLP

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962-2075

Attorneys for Defendant Dr. Glen Hemstock

/s/ Eric Tunis 

Eric Tunis 

Olivier Salvagno

GREENBAUM, ROWE, SMITH & DAVIS LLP

Metro Corporate Campus One 

P.O. Box 5600

Woodbridge, NJ 07095-0988

(732) 549-5600

Attorneys for Defendant Thomas D. Halket

/s/ Kevin H. Marino

Kevin H. Marino

John A. Boyle

MARINO, TORTORELLA & 

BOYLE, P.C.

437 Southern Boulevard

Chatham, New Jersey 07928

(973) 824-9300

Attorneys for Defendant Arthur A. Dornbusch II

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