Saturday, July 4, 2009
We Still Need a Cure for ALS 70 Years after Lou Gehrig's "Luckiest Man" Speech
Here is a blog entry from one of the lawyers at the Conglomerate explaining part of the personal and moving story behind how and why Major League Baseball is commemorating this July 4 as the 70th anniversary of Lou Gehrig's still-powerful "Luckiest Man" speech. It's a great reminder and its great to see this consciousness-raising, especially in this year of debate about health care reform. Such a shame we do not yet have a cure for this insidious disease and related diseases.
Friday, July 3, 2009
Litigating with State-Owned Entities - China, Non-performing Loans and State-Owned Banks
Jones Day lawyers wrote a detailed article on new Chinese Supreme Court rules regarding litigation over non-performing loans and state-owned banks. This is not quite tort litigation, but provides yet another example of the accelerating relationships between legal sytems, and the difficult issues that may arise when dealing with state-owned entities.
You can see the article here on Mondaq if registered or here on the Jones Day website.
You can see the article here on Mondaq if registered or here on the Jones Day website.
Thursday, July 2, 2009
GM hearings Update - Asbestos Plaintiff''s Lawyers Argue and Lose But No Timely or Free Transcript - Bankruptcy Players Choose to Remain Opaque
Yesterday, representatives of the asbestos plaintiff's bar argued in opposition to the terms of GM's proposed asset sale, as briefly described in the NYT article here. The WSJ covered it here , but said even less.
Accounts of the hearing and other information sources also indicated that New GM will be aiming for an IPO next year, as described in this WSJ article. It surely will be interesting to read the disclosures and caveats in the prospectus when New GM tries to sell shares next year and the prospectus tries to disclose and explain the material long-term legal risks inherent in the present rush through chapter 11 in a manner that raises significant issues regarding the enforceability/constitutionality of the present proceedings.
Down the line, expect that disappointed asbestos claimants and/or car dealers may well sue New GM regardless of the bankruptcy court orders and/or may proceed with collateral attacks of the sort that were successfully raised in the Agent Orange cases when "later" tort claimants were allowed to sue the Agent Orange makers despite the prior class action and prior settlement. Why were the "later" claimants allowed to sue? Because they were not yet hurt and so did not yet have claims when the Agent Orange issues were in court, and no one in court actually protected their interests in a conflict free way. In short, the future claimants did not receive due process during the original Agent Orange proceedings.
How does that apply here? When New GM goes to sell shares, one can expect that disappointed asbestos claimants and car dealers will assert that this chapter 11 case has been unconstitutional. The result presumably will be the IPO share price will fall due to whatever value the market gives the uncertainty about whether New GM really is immune from future claims. If/when that happens, everyone will find themselves back in the type of situation that arose when the goal was to create a public market for shares in the Manville entity that emerged from chapter 11. Back then, concerns were raised that Manville shares were undervalued because of uncertainty regarding whether the outcome of the Manville bankruptcy would be legally sustainable over the long term due to constitutional and other legal issues arising in Manville's chapter 11 case. Ultimately, to help drive up the share price, Congress in 1994 enacted bankruptcy code section 524(g) to retroactively "bless" the result in the Manville bankruptcy.
How did 524(g) work? The statute did well to create short-term value that Wall Street could sell. But, the terms of section 524(g) ultimately proved to be a huge mistake since the section gave enormous leverage to holders of even meritless or de minimis tort claims. How did that happen? Section 524(g) says that a 524(g) injunction can issued to bar future asbestos claims only if the chapter 11 plan is approved by 75% of the asbestos claimants, and the statute did not on its face draw lines between the holders of meritless claims and the holders of more meritorious claims, such as the claims of victims of mesothelioma, a disease plainly caused in many cases by inhalation of asbestos. Therefore, due to the terms of section 524(g), and due to various tort law developments, the game for plaintiff's lawyers and claimants became all about aggregating thousands of asbestos claims, regardless of merit. Thus, in trying to fix a short-term problem, Congress itself helped to incentivize the x-ray vans and other union screenings that later lead to mass filings of law suits that started spiraling up in the mid to late 1990s and by 2000-2001 had exploded to the point that even more companies were driven into chapter 11.
_________________________________________________________________
P.S. The absence of transparency in bankruptcy continues. It would be interesting to read the argument and questions underway in GM, and indeed one would think that would be easy for this nationally important case for which the public and other businesses could and should be fully informed through prompt online publication of free copies of the hearing transcript. But that will not happen for 90 days because GM, the official committees, Judge Gerber and the Obama Administration's Auto Task Force have not taken the simple step of entering an order allowing immediate electronic posting in the docket of the hearing transcripts, a step that is taken 90 days after the hearing. Instead, they continue to tolerate (enjoy?) the antithesis of transparency, which is a short-sighted bankruptcy court rule requiring 90 days of delay for publication of hearing transcripts due to fears that a social security number or other like information might be uttered during the hearing and then published in a piece of paper.
In a painfully minor nod to this lack of transparency problem, the Court's website says that audio tapes will be put on PACER, but this week's hearings still are not online as audio files as of July 2 at 12:00 pm. So, for now, those with extra money can buy unofficial transcripts for however many hundreds or thousands of dollars they are being sold. Or, one can wait and slowly wade through the e online audio transcript when they some day are made available through PACER. Or, you can wait and be fully informed long after the information is most useful. Go here to read more about the audio transcripts. The same text also is set out below. If you do listen, let me know if you hear the lawyers or Judge Gerber mention any social security numbers.
______________________________________________________________
Announcement
The United States Bankruptcy Court for the Southern District of New York is pleased to announce a pilot project to make digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, and General Motors Corporation, 09-50026, publicly available online. The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. Registration for PACER access may be obtained at http://www.pacer.psc.uscourts.gov/
Please remember that these digital recordings are copies of court proceedings and are provided as a convenience to the public at the cost of $0.08 per audio file. In accordance with 28 U.S.C. § 753 (b) "no transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other individual designated to produce the record." A list of approved transcription companies can be found on the court's website.
Accounts of the hearing and other information sources also indicated that New GM will be aiming for an IPO next year, as described in this WSJ article. It surely will be interesting to read the disclosures and caveats in the prospectus when New GM tries to sell shares next year and the prospectus tries to disclose and explain the material long-term legal risks inherent in the present rush through chapter 11 in a manner that raises significant issues regarding the enforceability/constitutionality of the present proceedings.
Down the line, expect that disappointed asbestos claimants and/or car dealers may well sue New GM regardless of the bankruptcy court orders and/or may proceed with collateral attacks of the sort that were successfully raised in the Agent Orange cases when "later" tort claimants were allowed to sue the Agent Orange makers despite the prior class action and prior settlement. Why were the "later" claimants allowed to sue? Because they were not yet hurt and so did not yet have claims when the Agent Orange issues were in court, and no one in court actually protected their interests in a conflict free way. In short, the future claimants did not receive due process during the original Agent Orange proceedings.
How does that apply here? When New GM goes to sell shares, one can expect that disappointed asbestos claimants and car dealers will assert that this chapter 11 case has been unconstitutional. The result presumably will be the IPO share price will fall due to whatever value the market gives the uncertainty about whether New GM really is immune from future claims. If/when that happens, everyone will find themselves back in the type of situation that arose when the goal was to create a public market for shares in the Manville entity that emerged from chapter 11. Back then, concerns were raised that Manville shares were undervalued because of uncertainty regarding whether the outcome of the Manville bankruptcy would be legally sustainable over the long term due to constitutional and other legal issues arising in Manville's chapter 11 case. Ultimately, to help drive up the share price, Congress in 1994 enacted bankruptcy code section 524(g) to retroactively "bless" the result in the Manville bankruptcy.
How did 524(g) work? The statute did well to create short-term value that Wall Street could sell. But, the terms of section 524(g) ultimately proved to be a huge mistake since the section gave enormous leverage to holders of even meritless or de minimis tort claims. How did that happen? Section 524(g) says that a 524(g) injunction can issued to bar future asbestos claims only if the chapter 11 plan is approved by 75% of the asbestos claimants, and the statute did not on its face draw lines between the holders of meritless claims and the holders of more meritorious claims, such as the claims of victims of mesothelioma, a disease plainly caused in many cases by inhalation of asbestos. Therefore, due to the terms of section 524(g), and due to various tort law developments, the game for plaintiff's lawyers and claimants became all about aggregating thousands of asbestos claims, regardless of merit. Thus, in trying to fix a short-term problem, Congress itself helped to incentivize the x-ray vans and other union screenings that later lead to mass filings of law suits that started spiraling up in the mid to late 1990s and by 2000-2001 had exploded to the point that even more companies were driven into chapter 11.
_________________________________________________________________
P.S. The absence of transparency in bankruptcy continues. It would be interesting to read the argument and questions underway in GM, and indeed one would think that would be easy for this nationally important case for which the public and other businesses could and should be fully informed through prompt online publication of free copies of the hearing transcript. But that will not happen for 90 days because GM, the official committees, Judge Gerber and the Obama Administration's Auto Task Force have not taken the simple step of entering an order allowing immediate electronic posting in the docket of the hearing transcripts, a step that is taken 90 days after the hearing. Instead, they continue to tolerate (enjoy?) the antithesis of transparency, which is a short-sighted bankruptcy court rule requiring 90 days of delay for publication of hearing transcripts due to fears that a social security number or other like information might be uttered during the hearing and then published in a piece of paper.
In a painfully minor nod to this lack of transparency problem, the Court's website says that audio tapes will be put on PACER, but this week's hearings still are not online as audio files as of July 2 at 12:00 pm. So, for now, those with extra money can buy unofficial transcripts for however many hundreds or thousands of dollars they are being sold. Or, one can wait and slowly wade through the e online audio transcript when they some day are made available through PACER. Or, you can wait and be fully informed long after the information is most useful. Go here to read more about the audio transcripts. The same text also is set out below. If you do listen, let me know if you hear the lawyers or Judge Gerber mention any social security numbers.
______________________________________________________________
Announcement
The United States Bankruptcy Court for the Southern District of New York is pleased to announce a pilot project to make digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, and General Motors Corporation, 09-50026, publicly available online. The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. Registration for PACER access may be obtained at http://www.pacer.psc.uscourts.gov/
Please remember that these digital recordings are copies of court proceedings and are provided as a convenience to the public at the cost of $0.08 per audio file. In accordance with 28 U.S.C. § 753 (b) "no transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other individual designated to produce the record." A list of approved transcription companies can be found on the court's website.
Scientific Papers and Clinical Trials - Issues Regarding Insider Knowledge and Disclosures by Researchers
The substance of sponsored medical literature remains a controversial issue. A 2009 article by Mark S. Frankel in the ABA's SciTech lawyer raises a variant issue. The article is titled "Clinical Trials and the Financial Markets, " and is online here. The article recounts market knowledge and manipulation issues arising from leaks of information involving sponsored clinical trials and other clinical trials. The following quote caught my eye especially since the 2009 ASCO Conference ended a few weeks ago nd I was watching articles pop up online from the conference on cancer treatments. Some of the results/articles plainly did move the markets, which of course is fine so long as the information is accurate:
"Recognizing these challenges for researchers, at least one scientific society has taken a strong stand on researcher- investor relationships. The American Society of Clinical Oncology (ASCO) recently issued recommendations for how its members should conduct themselves in relation to investment analysts. First and foremost, it is on record as discouraging its members from establishing “relationships with investment firms that put them at risk.”However, realizing that such researchers are free to engage in discussions with investors, the society cautions its members to “beware of the underhanded approaches used by investment firms to to obtain nonpublic information.” It also “require[s] that relationships with investment advisors be disclosed in the context of ASCO activities,” such as reviewing papers, serving on society committees, and advising on society meeting programs. Although this is a good beginning, other societies whose members conduct clinical trials also need to take similar action."
Wednesday, July 1, 2009
Asbestos Litigation Conference - Asbestos Bankruptcies, Chrysler, GM, and Others
In light of this morning's news from the General Motors chapter 11 case, and emails landing in my inbox of late, this seems an apt time to mention that the recession, chapter 11 cases and asbestos litigation are all intersecting at upcoming asbestos litigation conferences.
For one, Perrin Conferences is hosting a September 14-16 asbestos litigation conference in San Francisco. In a nod to the recession and slashed corporate budgets, Perrin Conferences is offering free registration to inside corporate lawyers. Go here for the agenda.
The entire conference looks excellent for both substance and speakers. My eye was particularly caught by the seminar's day three panel on chapter 11 cases related to asbestos claims. Who knows what the world will look like by then, but for now, the panel is top notch:
9:00 AM - Asbestos Bankruptcy: New Filings, Confirmations & Dismissals
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part I: Why are these companies still in bankruptcy?
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part II: Who are these new filers and how are they doing?
Overview of the asbestos trust process, the Three "C’s": Claims, Contribution and Cooperation
Will there be any defendants left? The automotive industry and bankruptcy
Joseph F. Rice, Esq., Motley Rice LLC, Mount Pleasant, SC
Charles Mullin, Litigation Resolution Group LLC, Washington, DC
Robert Phillips, Esq., SimonsCooper, LLC, East Alton, IL
Lucy P. Allen, SVP, Mass Torts and Product Liability Chair, NERA Economic Consulting, New York, NY
For one, Perrin Conferences is hosting a September 14-16 asbestos litigation conference in San Francisco. In a nod to the recession and slashed corporate budgets, Perrin Conferences is offering free registration to inside corporate lawyers. Go here for the agenda.
The entire conference looks excellent for both substance and speakers. My eye was particularly caught by the seminar's day three panel on chapter 11 cases related to asbestos claims. Who knows what the world will look like by then, but for now, the panel is top notch:
9:00 AM - Asbestos Bankruptcy: New Filings, Confirmations & Dismissals
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part I: Why are these companies still in bankruptcy?
Overview of the current Chapter 11 asbestos bankruptcy landscape, Part II: Who are these new filers and how are they doing?
Overview of the asbestos trust process, the Three "C’s": Claims, Contribution and Cooperation
Will there be any defendants left? The automotive industry and bankruptcy
Joseph F. Rice, Esq., Motley Rice LLC, Mount Pleasant, SC
Charles Mullin, Litigation Resolution Group LLC, Washington, DC
Robert Phillips, Esq., SimonsCooper, LLC, East Alton, IL
Lucy P. Allen, SVP, Mass Torts and Product Liability Chair, NERA Economic Consulting, New York, NY
GM Court Denies Relief Sought By Asbestos Claimants for Futures Representative and No Decision on Separate Committee for Asbestos Claimants
In the GM bankruptcy, Judge Gerber has entered today his order [Docket No. 2857] denying the asbestos claimant's motion for appointment of a futures representative for asbestos claimants. He also adjourned to another day the motion requesting appointment of a separate official committee to represent asbestos claimants against GM. The latter motion may be put back on for hearing on three day notice. One wonders what negotiations are ongoing and what evidence is being gathered. The order is here.
Insurance Coverage Rulings That Will Put Grey Hairs on the Heads of General Counsels for Insureds
Suppose the following. You are the General Counsel of a company that's been sued in a few hundred asbestos cases. You've timely notified all the primary insurers of the underlying claims, and some have paid defense expenses. But, assume also that a primary insurer known as Home has filed for the insurance equivalent of bankruptcy (see opinion here re Home) and is not paying any claims. Assume also that an insurer known as London has denied that it should pay claims because the insured cannot provide originals of the small pieces of paper known as "slips" that denoted issuance of its insurance, and assume further that London has created a purported successor entity you are forced to deal with and also has claimed that it is on the brink of insolvency (see Wikipedia here or see all the things that a lawyer for insureds has to say on his insurance coverage blog here) Assume next that your company obtains virtually nothing from Home even though it issues lots of insurance, and assume your company settles with London for about 90 cents on the dollar of the policy limits of London, with you figuring that litigating to death will cost more than just eating the difference, and who knows, London may in fact prove to be insolvent some day. Under these facts, can you recover from excess insurance policies above the policies issued by Home or London ?
For that general counsel, the sad reality is that some courts might well preclude recoveries from excess policies due to the circumstances of Home and London. Really? Yes ! For the specifics, see the informative article by Gilbert Oshinsky coverage lawyers Richard Shore, Stephen A. Weisbrod, and Andrea K. Hopkins. And, yes, the article also explains why they disagree with the rulings. After reading the article, you'll better appreciate the difficulties of managing legacy liability issues.
For that general counsel, the sad reality is that some courts might well preclude recoveries from excess policies due to the circumstances of Home and London. Really? Yes ! For the specifics, see the informative article by Gilbert Oshinsky coverage lawyers Richard Shore, Stephen A. Weisbrod, and Andrea K. Hopkins. And, yes, the article also explains why they disagree with the rulings. After reading the article, you'll better appreciate the difficulties of managing legacy liability issues.
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