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. .
Friday, March 27, 2009
Reminder re Oral Argument in Manville/Travelers Case re Bankruptcy Court Jurisdiction and Asbestos Litigation
Reminder: Monday, March 30, 2009, is the date for oral argument in the Supreme Court on the Travelers/Manville case. The appeal presents important issues regarding the extent of bankruptcy court power and jurisdiction in a Chapter 11 case arising from asbestos litigation. The outcome may well apply to all mass tort bankruptcies.
All the briefs are collected at this page of the Scotus wiki built as a companion to the respected Scotusblog. Expert commentary also is provided.
All the briefs are collected at this page of the Scotus wiki built as a companion to the respected Scotusblog. Expert commentary also is provided.
American Plaintiff's Lawyers Seeking New Markets Target Global Shipyards for Claiming, Including Claiming Against US Asbestos Trusts
Are American lawyers going abroad to seek out new asbestos claimants? Of course they are. Like any business person, they are seeking new markets.
Shipyards in Europe provide concrete examples. In particular, a March 24, 2009 article describes an American plaintiff's lawyer, Mitchell Cohen, speaking to shipyards workers in Malta, with the group apparently having been assembled the GRW trade union. According to the article, Mr. Cohen was talking about making claims against US asbestos trusts. Likewise, a 2004 article describes Mr. Cohen having been in Spain to speaking to and handing out settlement checks from US asbestos trusts to persons who worked on US Navy vessels in Rota, Spain.
Why shipyards? Shipyards anywhere in the world are great sources for asbestos claiming due to widespread use of asbestos during shipbuilding, including signficant use of the highly toxic amphibole fibers. Indeed, much of America's asbestos claiming arose from shipyards. Now, the claiming pattern is being repeated with claimants from shipyards around the globe seeking to file lawsuits and claims against asbestos trusts established in the US through Chapter 11 proceedings.
Shipyards in Europe provide concrete examples. In particular, a March 24, 2009 article describes an American plaintiff's lawyer, Mitchell Cohen, speaking to shipyards workers in Malta, with the group apparently having been assembled the GRW trade union. According to the article, Mr. Cohen was talking about making claims against US asbestos trusts. Likewise, a 2004 article describes Mr. Cohen having been in Spain to speaking to and handing out settlement checks from US asbestos trusts to persons who worked on US Navy vessels in Rota, Spain.
Why shipyards? Shipyards anywhere in the world are great sources for asbestos claiming due to widespread use of asbestos during shipbuilding, including signficant use of the highly toxic amphibole fibers. Indeed, much of America's asbestos claiming arose from shipyards. Now, the claiming pattern is being repeated with claimants from shipyards around the globe seeking to file lawsuits and claims against asbestos trusts established in the US through Chapter 11 proceedings.
Friday, March 13, 2009
ABA Mass Tort Committee Provides A Flexible Forum for Getting Further Involved in Global Tort Issues
About the time I finished the post below on global choice of law issues, I received an email from the American Bar Association's Mass Tort Committee inviting new ideas, and new members of course are always welcome. The group is a good one, and includes a subgroup focused in international mass tort issues. So, if you are looking for a forum to get further involved in global tort litigation, go the committee's website or follow up with the committee chairs, who are shown on the email text pasted below.
The following is the full text of the email mentioned above ______________________________________________________________
Dear Committee Members:
Strategic planning allows any group, including the Mass Torts Committee, to focus on what matters to its members and what benefits them. This is a relatively young committee and it is time to revisit what the Committee delivers to its members in terms of useful information in their practices and in terms of opportunities to participate and network.
One of the initiatives under consideration is revisiting the subcommittee structure. As you know, we have subcommittees that are directed to committee products and process (newsletters, website, programming, hot topics, young lawyers and membership). We also have subcommittees directed to specific substantive areas (international, class actions, pharmaceutical & medical device and toxic torts). Some of the substantive areas mirror the topics covered by other Section of Litigation committees and other organizations that we all belong to in one combination or another. One consideration here is revisiting subcommittee structure to put in place (along with the substantive area subcommittees) a focus on handling of mass tort litigation as a matter of process – not organized along substantive areas of law. That could include such things as case management, evidence and procedure, experts, etc.
We would like to get your feedback on that concept and your thoughts as to what particular topic areas might be appropriate for such additional subcommittees, so please e-mail your thoughts to either or both of us.
Thank you,
John Manard
manardj@phelps.com
Byron Mason
byron.mason@bakerd.com
Mass Torts Litigation Committee Co-Chairs
The following is the full text of the email mentioned above ______________________________________________________________
Dear Committee Members:
Strategic planning allows any group, including the Mass Torts Committee, to focus on what matters to its members and what benefits them. This is a relatively young committee and it is time to revisit what the Committee delivers to its members in terms of useful information in their practices and in terms of opportunities to participate and network.
One of the initiatives under consideration is revisiting the subcommittee structure. As you know, we have subcommittees that are directed to committee products and process (newsletters, website, programming, hot topics, young lawyers and membership). We also have subcommittees directed to specific substantive areas (international, class actions, pharmaceutical & medical device and toxic torts). Some of the substantive areas mirror the topics covered by other Section of Litigation committees and other organizations that we all belong to in one combination or another. One consideration here is revisiting subcommittee structure to put in place (along with the substantive area subcommittees) a focus on handling of mass tort litigation as a matter of process – not organized along substantive areas of law. That could include such things as case management, evidence and procedure, experts, etc.
We would like to get your feedback on that concept and your thoughts as to what particular topic areas might be appropriate for such additional subcommittees, so please e-mail your thoughts to either or both of us.
Thank you,
John Manard
manardj@phelps.com
Byron Mason
byron.mason@bakerd.com
Mass Torts Litigation Committee Co-Chairs
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