IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN THE MATTER OF: ) ) COLLINS &

AIKMAN CORPORATION, ) et. al. ) Debtors. ) ) Case No. 05-55927-swr Chapter 11 (Jointly Administered) Honorable Steven W. Rhodes

MOTION FOR CLASS ACTION CERTIFICATION Pursuant to Rule 3003(c)(3) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), the undersigned counsel for T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford, individually and on behalf of a class of persons similarly situated, hereby respectfully request, pursuant to Rule 9014 of the Bankruptcy Rules, that the Court direct that Rule 7023 of the Bankruptcy Rules applies to this matter and allow for the certification of a class of creditors with the above-referenced creditors as named class representatives. The undersigned counsel respectfully move this Court to allow this class pending a certification in the State of South Carolina of a class action for a statewide class of all persons or other entities which own in whole or in part any estate in real property upon which hazardous substances, contaminants, and /or pollutants, which were released or discharged by the Debtors, have migrated, and which real property is located in the impacted area, as such is defined herein, near the Debtors previous plant site. The impacted area as referenced herein and as referenced in the attached supporting

0W[;(%,
0555927080512000000000041

I]

memorandum is an area of land located in the City of Cowpens, County of Spartanburg, State of South Carolina, in the vicinity of a former plant known as the Healthtex plant. Said area is situated primarily to the south, southwest, southeast and to some extent to the west and east of said former plant site. Said area includes properties lying on portions of Foster Road, Seagle Road, Crestview Road, Crystal Drive, W. Brookwood Lane, E. Brookwood Lane, Church Street, Western Creek, and/or Easter Creek, in Cowpens, South Carolina. More Specifically, the impacted area includes all real properties which are in the shaded area of a Plat produced by the South Carolina Department of Health and Environmental Control titled Estimated Saprolity PCE Concentration Map, Former Helath Tex Plant, Cowpens, South Carolina which Plat is attached a Exhibit A and made a part hereof. In Support of this Motion, the Movants respectfully refer the Court to the accompanying Memorandum of Law. BERNARDI, RONAYNE & GLUSAC, P.C. Dated: May 12, 2008 /s/Rodney M. Glusac 1058 Maple Street, Suite 100 Plymouth, MI 48170 (734) 416-1780 rodg@brgpc.com (P43756) Gary W. Poliakoff, (Fed. I.D. #3078) Poliakoff & Associates, P.A. P.O. Box 1571 Spartanburg SC 29304 864.582.5472 atty@gpoliakoff.com ATTORNEYS FOR CLAIMANTS 2

IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN THE MATTER OF: ) ) COLLINS & AIKMAN CORPORATION, ) et. al. ) Debtors. ) ) Case No. 05-55927-swr Chapter 11 (Jointly Administered) Honorable Steven W. Rhodes

ORDER FOR CLASS ACTION CERTIFICATION Claimants T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford, individually and on behalf of a class of persons similarly situated, having filed their Motion for Class Certification (the Motion); claimants having properly served the Motion; no objections to the Motion having been timely filed; and the Court being duly advised in the premises: IT IS ORDERED that the Motion is granted. IT IS FURTHER ORDERED that Rule 7023 of the Bankruptcy Rules applies to this matter and a class of creditors is certified with claimants T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford as named class representatives.

IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN THE MATTER OF: ) ) COLLINS & AIKMAN CORPORATION, ) et. al. ) Debtors. ) ) Case No. 05-55927-SWR Chapter 11 (Jointly Administered) Honorable Steven W. Rhodes

NOTICE OF MOTION FOR CLASS ACTION CERTIFICATION Please take notice that Claimants T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford, individually and on behalf of a class of persons similarly situated, having filed their Motion for Class Certification have filed their Motion for Class Certification, in which they seek the entry of an order finding that that Rule 7023 of the Bankruptcy Rules applies to this matter and allowing for the certification of a class of creditors with the above-referenced claimants as named class representatives. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one. If you do not want the Court to grant the Motion or if you want the Court to consider your views on the Motion, within 15 days, you or your attorney must: 1. File with the Court a written objection to the Motion, explaining your position, at:
1

U.S. Bankruptcy Court 211 W. Fort Street, Suite 2100 Detroit, Michigan 48226 If you mail your response to the court for filing, you must mail it early enough so that the court will receive it on or before the date stated above. You must also mail a copy to: Rodney M. Glusac, Esq.
1

Response or answer must comply with F. R. Civ. P. 8(b), (c) and (e) 1

Attorneys for Claimants Bernardi, Ronayne & Glusac, P.C. 1058 Maple Street, Suite 100 Plymouth, MI 48170 (734) 416-1780 2. If an objection is timely filed and served, the clerk will schedule a hearing on the Motion and you will be served with a notice of the date, time and location of the hearing.

If you or your attorney do not take these steps, the Court may deem that you do not oppose the Motion, in which event the hearing will be canceled, and the motion granted. BERNARDI, RONAYNE & GLUSAC, P.C.

/s/Rodney M. Glusac Attorneys for Claimants 1058 Maple Street Suite 100 Plymouth, MI 48170 (734) 416-1780 rodg@brgpc.com (P43756) Dated: May 12, 2008

IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN THE MATTER OF: ) ) COLLINS & AIKMAN CORPORATION, ) et. al. ) Debtors. ) ) Case No. 05-55927-SWR Chapter 11 (Jointly Administered) Honorable Steven W. Rhodes

CERTIFICATE OF SERVICE I certify that on May 12, 2008, I electronically filed the Motion for Class Certification and the Notice of the Motion with the Clerk of the Court using the ECF system which will send notification of such filing to all attorneys of record listed on the Courts ECF system for this case.

BERNARDI, RONAYNE & GLUSAC, P.C. Dated: May 12, 2008 /s/Rodney M. Glusac Attorneys for Movants 1058 Maple Street Suite 100 Plymouth, MI 48170 (734) 416-1780 rodg@brgpc.com (P43756)

IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN THE MATTER OF: ) ) COLLINS & AIKMAN CORPORATION, ) et. al. ) Debtors. ) ) Case No. 05-55927-swr Chapter 11 (Jointly Administered) Honorable Steven W. Rhodes

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS ACTION CERTIFICATION T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford are homeowners in South Carolina. They own residences upon which a plume of environmental contamination has detrimentally impacted their property. That plume is defined as the impacted area by the South Carolina Department of Health and Environmental Control. They have filed both an individual claim and a claim seeking class certification. In addition, numerous other class members have filed claims because the environmental contamination plume detrimentally impacts over 90 homeowners in South Carolina. The claimants believe that class certification is appropriate and pursuant to the Debtors Plan of Reorganization wish to proceed in the State Courts of South Carolina for a determination of class and for a liquidation of their damages. In the event that class certification is not given, then the individuals wish to proceed on their own claims. Pursuant to the Plan of Reorganization, the homeowners have filed a motion for relief from the automatic stay and would request that the determination of whether this 2

matter is to proceed as a class or as individual claims, is a matter best left for a determination by the South Carolina State Courts. In the event that this court believes it should determine class certification, the homeowners provide the following memorandum on the need for class certification. THE NEED FOR A CLASS ACTION The Movants request that this Court issue an Order pursuant to Rule 9014 of the Bankruptcy Rules that would state that Rule 7023 applies in this case. The Seventh Circuit was the first case to recognize the use of class action claims in the bankruptcy context. See Matter of American Reserve Corp., 840 F.2d 487 (7th Cir. 1988). Soon thereafter, the Sixth and Eleventh Circuits joined in the reasoning to permit a class proof of claim. See Reid v. White Motor Corp., 886 F.2d 1462 (6 th Cir. 1989), cert. denied, 494 U.S. 1080 (1990); In re Charter Co., 876 F.2d 866 (11 th Cir. 1989), cert. denied, 496 U.S. 944 (1990). The Seventh Circuit reasoned that a representative should be able to file a class claim because the Bankruptcy Codes list of who may file a proof of claim is descriptive and not exclusive. American Reserve Corp., 840 F.2d at 392. The Seventh Circuit held that not only was the class claim permitted, but also could be the most efficient method of resolving these types of claims, thereby promoting the goals of the bankruptcy process. Id. at 489. Thus, so long as the class qualifies under Rule 23 of the Federal Rules of Civil Procedure, class certification in the bankruptcy context is permissible. Pursuant to Rule 7023 of the Bankruptcy Rules and Rule 23(a) of the Federal Rules of Civil Procedure, the Movants request that the Court would certify a class 3

consisting of:
Class of all persons or other entities which own in whole or in part any restate in real property upon which hazardous substances, contaminants, and /or pollutants, which were released or discharged by the Debtors, have migrated, and which real property is located in the impacted area, as such is defined herein, near the Debtors previous plant site. The impacted area as referenced herein and as referenced in the attached supporting memorandum is an area of land located in the City of Cowpens, County of Spartanburg, State of South Carolina, in the vicinity of a former plant known as the Healthtex plant. Said area is situated primarily to the south, southwest, southeast and to some extent to the west and east of said former plant site. Said area includes properties lying on portions of Foster Road, Seagle Road, Crestview Road, Crystal Drive, W. Brookwood Lane, E. Brookwood Lane, Church Street, Western Creek, and/or Easter Creek, in Cowpens, South Carolina. More Specifically, the impacted area includes all real properties which are in the shaded area of a Plat produced by the South Carolina Department of Health and Environmental Control titled Estimated Saprolity PCE Concentration Map, Former Helath Tex Plant, Cowpens, South Carolina which Plat is attached a Exhibit A to the Motion made herein and made a part hereof.

The Movants believe that the members of this class are (1) so numerous that joinder of all members is impracticable, (2) there are questions of law and fact common to each member, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class and (4) the representative parties will fairly and adequately protect the interests of the class. See Rule 23, Fed. R. Civ. P. Numerous Members The Movants are informed that the environmental plume impacts more than 90 homes. Thus, the joinder of all members is impracticable. In this regard, no minimum number is needed to satisfy this requirement. Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984). However, as a general rule of thumb, many courts have found that classes of at least forty members are sufficiently large enough to satisfy this requirement. Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 497 (D.Md. 1998); see also Kohl v. Association of Trial Lawyers of America, 183 F.R.D. 475, 483-84 (D.Md. 1998) (certifying a class of between 14 and 35); Armsted v. Pingree, 629 F.Supp. 273, 4

279 (M.D. Fla. 1986) (certifying a class of 25); Cypress v. Newport News Gen. And Nonsec. Hosp. Assoc., 375 F.2d 648, 653 (4 th Cir. 1967) (certifying a class of 18). Further, the key to numerosity prong is the impracticability of joining all Plaintiffs. Stewart v. Associates Consumer Discount Co., 183 F.R.D. 189, 194 (E.D. Pa. 1998). Impracticability of joinder is not determined by a numerical test alone. Ballard v. Blue Shield of S.W. Va., Inc., 543 F.2d 1075, 1080 (4 th Cir. 1976), cert. denied 430 U.S. 922 (1977). Instead the court examines the factors of estimated size of the class, the geographic diversity of the class, the difficulty of identifying and making service on the class members, the geographic dispersion of class members and the negative impact on judicial economy if individual suits are required. Chisolm v. Transouth Financial Corp., 184 F.R.D. 556, 561 (E.D. Va. 1999). Any doubt should be resolved in favor of certification. Stewart, 183 F.R.D. at 194. Here, the size of the class is large, over ninety homes and while the members are all located in South Carolina, there may be a difficulty in identifying the class members. Common Questions of Law and Fact The commonality requirement does not require that all issues in a litigation be common. Instead, commonality requires only that common questions exist. Stewart, 183 F.R.D. at 194-195. In fact, a single common question has been found sufficient to satisfy the commonality requirement. See Simon v. Westinghouse Electric Corp., 73 F.R.D. 480, 484 (E.D. Pa. 1977). As in this case, commonality has been found to exist when the claims of the class arise from the same wrongful acts or underlying set of acts or circumstances. Holsey v. Armour & Co., 743 F.2d 199, 216-17 (4th Cir. 1984) cert. 5

denied, 470 U.S. 1028 (1985). In this case, the common wrongful acts of Collins & Aikman in their management of the plant and their physical contamination of the ground water provide the common underlying set of acts or circumstances. Representative Class Members T.J. Lawson and Tammy Lawson, James M. Reid and Renee F. Reid, Bennie Skates and Cathy Skates, Robert A. Price, and David Swofford and Karen Swofford are representative members of this class of individuals and entities. Each has a home that has been impacted by the contamination. The typical requirement does not mean identical. Stewart, 183 F.R.D. at 194; see also Senter v. General Motors Corp., 532 F.2d 511 (6 th Cir.) cert. denied 429 U.S. 870 (1976). Rule 23(a) only requires that the

representatives claims be typical of the other class members claims, and typical is to be liberally construed. Id. Protecting the Interests of the Class As may be seen by the filing of this motion and memorandum, the individuals who seek to be made named representatives are already seeking to protect the members of the class by seeking additional time for the class members for file proofs of claim associated with the environmental claim. In general, the courts consider both the attorneys who represent the class representatives and the extent to which the class representatives may be antagonistic to the class. Stewart, 183 F.R.D. at 196. In this case, the attorneys involved in the South Carolina litigation have represented numerous class actions involving environmental contamination claims. Further, none of the class representatives are antagonistic to the class. 6

Therefore, the requirements of Rule 23(a) have been met and it would be appropriate for the Court to certify a class as specified in this motion. JURISDICTION TO CERTIFY CLASS In the context of Rule 23(a), federal district courts have broad discretion in determining whether particular actions should be certified as a class action pursuant to Rule 23(a). Chisolm v. Transouth Financial Corp., 184 F.R.D. 556, 559-60 (E.D. Va. 1999) citing Windham v. American Brands, Inc., 565 F.2d 59, 64 n. 6 (4 th Cir. 1977), cert. denied 435 U.S. 968 (1978). In considering a motion for class certification, a court must determine only whether the requirements of Rule 23(a) have been satisfied and should not consider the merits of the possible claims to be brought by the class members. Chisolm, 184 F.R.D. at 560, citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974). Further, federal courts have held that class actions are generally favored and should be certified if the class requirements are satisfied. In re Amerifirst Securities Litigation, 139 F.R.D. 423, 427 (S.D. Fla. 1991). One of the most often cited class certification decisions is In re A.H. Robbins Co., Inc., 880 F.2d 709 (4th Cir. 1989), cert. denied sub nom, Anderson v. Aetna Casualty & Surety Co., 439 U.S. 959 (1989). In that case, the U.S. Court of Appeals for the Fourth Circuit affirmed a class that encompassed all claimants against the insurer of A.H. Robins, the manufacturer of the Dalkon Shield. The Fourth Circuit affirmed the class despite the fact that claims against the insurer were for personal injury, which normally have been deemed particularly unsuitable for class certification because individual medical causation issues. According to the Fourth 7

Circuit: The class action ... is the manifest fair and expeditious procedure for disposing of the mass tort litigation. It has been for years the recognized procedure for dealing with cases which have a marked similarity to those flowing from mass torts. Id. at 727. The Fourth Circuit reiterated this statement from A.H. Robins case when it decided Central Weslyan College v. W.R. Grace & Company, 6 F.3d 177 (4 th Cir. 1993). In the Central Wesleyan College decision, the Fourth Circuit stated that: Although manageable problems present concerns in a lawsuit of this magnitude, the class mechanism may advance this action and reduce the need for repetitive litigation in this area. Id. at 180. In these two cases, the court found that the conservation of judicial and party resources, the danger of conflicting rulings and the overall interests of justice would be better served by a class action. In this case, the Court should similarly find in favor of judicial and party resources and the overall interests of justice. Further, the Court should note that the certification of the class would not be duplicative of the duties of the Trustee. The Trustees responsibilities are to all of the creditors and while the actions brought on behalf of the class may ultimately result in a distribution to class member that would be administered by the Trustee, the Trustees duties to the entire creditor body require the certification of a class, with class representatives to look out for their particular interests. CONCLUSION Therefore, the Court should grant the Movants request to allow the State Courts of the State of South Carolina to make the determination of whether this matter will proceed

as a statewide class action. In the event that this court believes that it should determine whether the class should proceed, the Movants respectfully request that the court certify the Movants as representatives of a class of creditors with common issues and common goals. Respectfully, BERNARDI, RONAYNE & GLUSAC, P.C. Dated: May 12, 2008 /s/Rodney M. Glusac 1058 Maple Street, Suite 100 Plymouth, MI 48170 (734) 416-1780 rodg@brgpc.com (P43756) Gary W. Poliakoff, (Fed. I.D. #3078) Poliakoff & Associates, P.A. P.O. Box 1571 Spartanburg SC 29304 864.582.5472 864.582.7280 (fax) atty@gpoliakoff.com ATTORNEYS FOR MOVANTS