Saturday, April 4, 2009
Disclosure Regarding My Background and Views
Here's my standard disclosure: I have in the past and do now represent non-insurer parties opposed to certain terms of asbestos bankruptcies. I also spent from 1984 - 1999 representing asbestos defendants, including GAF Corporation and then W.R. Grace. I also have represented entities that are financially tied to asbestos litigation through indemnity obligations or shared insurance. Further specifics are available on my bio at my law firm's website (http://www.butlerrubin.com/) or feel free to email me at work (khartley@butlerrubin.com ) if you need further information in order to understand my background as relevant to my views.
Old Baseball Gloves and Football Helmets with Asbestos Linings - Ebay
Here is an article by an Ebay trader showing pictures of old baseball gloves, and really old football helmets (think Red Grange style helmets) lined with asbestos to provide padding. These are just two of the many uses of asbestos as a textile.
Why, you might wonder, is an Ebay trader writing about asbestos. It's been well known for some time that asbestos litigation generated its own niche of Ebay shoppers, as is described here in an article from 2003. Why? For one, both plaintiff's lawyers and defense lawyers seek to find visual evidence for use in trials and during discovery. So, we buy old catalogs, pictures or even samples of products. Investigators and lawyers also buy and test old products for the presence of asbestos. For example, in a case I was involved with, there was no immediately clear source of asbestos exposure, but the plaintiff had a form of cancer (mesothelioma) usually but not always linked to inhalation of asbestos fibers (especially inhalation of amphibole asbestos fibers). Testing of old appliances proved that he had worked for a few years at an appliance production facility operated by a company that sold a line of products that included wires insulated with asbestos fibers.
Why, you might wonder, is an Ebay trader writing about asbestos. It's been well known for some time that asbestos litigation generated its own niche of Ebay shoppers, as is described here in an article from 2003. Why? For one, both plaintiff's lawyers and defense lawyers seek to find visual evidence for use in trials and during discovery. So, we buy old catalogs, pictures or even samples of products. Investigators and lawyers also buy and test old products for the presence of asbestos. For example, in a case I was involved with, there was no immediately clear source of asbestos exposure, but the plaintiff had a form of cancer (mesothelioma) usually but not always linked to inhalation of asbestos fibers (especially inhalation of amphibole asbestos fibers). Testing of old appliances proved that he had worked for a few years at an appliance production facility operated by a company that sold a line of products that included wires insulated with asbestos fibers.
Monday, March 30, 2009
Link to Transcript from Oral Argument in Travelers/Manville Asbestos Bankruptcy Case
The oral argument transcript is availble here.
Mass Tort Bankruptcies - Key Issues Raised Today in SCOTUS in the Travelers/Manville Asbestos Bankruptcy
Updated: An April 6 blog entry by Alison Frankel includes a letter from Cozen O'Conner responding to Mr. Ostrager.
Today's oral argument date in the Supreme Court for the Travelers/Manville case has drawn some massive hyperbole in a blog article. The article quotes Travelers' counsel, Barry Ostrager, as saying that the case is very important, but that one of his opponents, Chubb Insurance Company, has received the worst legal advice "ever" in arguing its position. It's true the case may have a massive impact on the use of bankruptcy court as a means to resolve "mass tort" litigation. As for the quality of the legal advice provided to Chubb by Jack Cohn, consider that an estimable group of bankruptcy and constitutional law professors disagree with Mr. Ostrager, and explained why in an excellent amicus brief that is available here for no cost through the SCOTUS wiki and the ABA's efforts to put SCOTUS briefs online.
The Travelers issue boils down to whether a bankruptcy court can issue a national (global?) injunction that bars any and all future claims against an insurer of the debtor after the insurer has paid money to settle coverage claims brought by the debtor. In my view, the correct answer is: no, for a variety of reasons. The main reason? Such a sweeping injunctive order is improper for a variety of reasons. The principal flaw is that government action that improperly takes away property rights (legal claims against the insurer) of third parties, and takes the claims away without providing a meaningful prior hearing or payment of just compensation, thereby violating the 5th amendment rights of the persons whose claims are extinguished.
I argued many of the same issues last year in the Federal-Mogul asbestos bankruptcy. The bankruptcy court judge, Judith Fitzgerald, has heard many of the asbestos bankruptcies pursuant to an appoint met order by the Third Circuit. She did not reach all the issues but did apply the "derivative" standard that is at issue in the Travelers/Manville case. There, in a September 30. 2008 opinion, Judge Fitzgerald blocked an effort to expand bankruptcy court jurisdiction. See In re Federal-Mogul Global, Inc, 2008 Bankr. LEXIS 3517. I've frequently disagreed with Judge Fitzgerald, but she ruled correctly in this instance and her ruling also supports Chubb/Jack Cohn. And, for what it's worth, I also agree with Chubb and Jack Cohn.
As always, please bear in mind my standard disclosure: I have in the past and do now represent non-insurer parties opposed to certain terms of asbestos bankruptcies, and also have represented and do represent entities that are defendants in or financially tied to asbestos litigation through indemnity obligations or shared insurance. Further specifics are available on my bio at my law firm's website (http://www.butlerrubin.com/) or feel free to email me at work if you need further information. .
Today's oral argument date in the Supreme Court for the Travelers/Manville case has drawn some massive hyperbole in a blog article. The article quotes Travelers' counsel, Barry Ostrager, as saying that the case is very important, but that one of his opponents, Chubb Insurance Company, has received the worst legal advice "ever" in arguing its position. It's true the case may have a massive impact on the use of bankruptcy court as a means to resolve "mass tort" litigation. As for the quality of the legal advice provided to Chubb by Jack Cohn, consider that an estimable group of bankruptcy and constitutional law professors disagree with Mr. Ostrager, and explained why in an excellent amicus brief that is available here for no cost through the SCOTUS wiki and the ABA's efforts to put SCOTUS briefs online.
The Travelers issue boils down to whether a bankruptcy court can issue a national (global?) injunction that bars any and all future claims against an insurer of the debtor after the insurer has paid money to settle coverage claims brought by the debtor. In my view, the correct answer is: no, for a variety of reasons. The main reason? Such a sweeping injunctive order is improper for a variety of reasons. The principal flaw is that government action that improperly takes away property rights (legal claims against the insurer) of third parties, and takes the claims away without providing a meaningful prior hearing or payment of just compensation, thereby violating the 5th amendment rights of the persons whose claims are extinguished.
I argued many of the same issues last year in the Federal-Mogul asbestos bankruptcy. The bankruptcy court judge, Judith Fitzgerald, has heard many of the asbestos bankruptcies pursuant to an appoint met order by the Third Circuit. She did not reach all the issues but did apply the "derivative" standard that is at issue in the Travelers/Manville case. There, in a September 30. 2008 opinion, Judge Fitzgerald blocked an effort to expand bankruptcy court jurisdiction. See In re Federal-Mogul Global, Inc, 2008 Bankr. LEXIS 3517. I've frequently disagreed with Judge Fitzgerald, but she ruled correctly in this instance and her ruling also supports Chubb/Jack Cohn. And, for what it's worth, I also agree with Chubb and Jack Cohn.
As always, please bear in mind my standard disclosure: I have in the past and do now represent non-insurer parties opposed to certain terms of asbestos bankruptcies, and also have represented and do represent entities that are defendants in or financially tied to asbestos litigation through indemnity obligations or shared insurance. Further specifics are available on my bio at my law firm's website (http://www.butlerrubin.com/) or feel free to email me at work if you need further information. .
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