Mass Torts Committee Meeting Minutes

2007 Winter Leadership Conference

The 2007 WLC Meeting of the Mass Torts Committee was held on December 7, 2007, beginning at 3:45 PST.  Co-Chair Rich Cohen (Garden City Group) brought to the Committee's attention the 2005 publication by the Federal Judicial Center entitled "Judicial Management of Mass Tort Bankruptcies", pursuant to which bankruptcy courts are expected to administer such cases.  Mr. Cohen announced that a link to this publication would be included in the next Committee newsletter.  Thereafter, a panel comprised of Rich Cohen, Adam Paul (Kirkland Ellis, Chicago) and Ed Harron (Young Conaway, Wilmington, DE) led a step-by-step inter-active discussion of the filing and pursuit of mass tort bankruptcies.  Of particular emphasis were the considerations unique to such cases and the notice and valuation dilemmas that are often encountered.  The meeting concluded at 5:15 PST.

2007 Annual Spring Meeting

The meeting of the Mass Torts Committee was held at the ABI Annual Spring Meeting on April 14, 2007 at 4:00 p.m.  The Committee initially held a brief business meeting to discuss potential topics for future meetings, with a tentative decision to prepare a discussion on ethical dilemmas in mass tort bankruptcy cases, focused upon the recent decisions involving the Gilbert Hines & Randolph Firm, now known as Gilbert Randolph, in the Congoleum and Federal Mogul bankruptcy cases. 

A presentation on recent mass tort case developments was presented by Adam Paul of Kirkland & Ellis, Chicago, and Mark Plevin of Crowell & Moring, Washington, DC.  The speakers, representing the point of view of the debtor and insurer, respectively, focused upon recent important developments in the Congoleum and Pittsburgh Corning bankruptcy cases.  A great deal of emphasis was placed on the role of the liability insurer in bankruptcy cases of this type and the varying positions of the courts on the issue of their standing.  There was also a discussion of when and how claims may be determined to be properly derivative for purposes of including a third party under a debtor’s plan of reorganization under the Third Circuit’s Combustion Engineering decision. 

2006 Winter Leadership Conference

The meeting of the Mass Torts Committee was held on December 2, 2006 as part of the ABIWLC in Scottsdale, AZ. The program presented by the Committee was lightly attended; however those present heard a discussion on the effect and current state of fraudulent conveyance litigation in Mass Tort Bankruptcies. The panelists included Adam Paul from the Chicago office of Kirkland & Ellis, Ted Swett of the Washington, D.C. office of Kaplan & Drysdale and David B. Wheeler of the Charleston, S.C. office of Moore & Van Allen. As the firms of Messrs. Paul and Swett are usually on opposite sides in fraudulent conveyance litigation of this type, the discussion proved not only informative but at times very lively.

2005 Annual Spring Meeting

The Mass Tort Committee had a brief informational meeting prior to the well-attended educational program it sponsored in Washington. Highlights included:

1. The introduction of Rick Cohen from Garden City Group as the new co-chair, replacing Hon. Judith K. Fitzgerald, who is cycling off.
2. The announcement that the Mass Tort Committee will hold a members’ meeting during the first ever Mid-Atlantic Regional Conference, to be held in Cambridge, Md., from Aug 4–6, 2005. Dates and times will be provided in the near future.
3. The request for sensitivity in responding to mail distribution list emails, so that only the sender receives the answer, and not the entire distribution list. The ABI staff will attempt to find a way to facilitate this for committee members.
4. The reminder that our email list is available to institute discussions, advise members of upcoming events of interest, etc.
5. The request that every member agree to write a short article for the Committee’s e-newsletter and to contact Judi Fitzgerald for the guidelines, or to edit an article, or to participate in planning the programs for the Annual Spring or Winter Leadership Conferences, and to provide the committee co-chairs with any ideas of how to make the committee more meaningful and appealing to all.

2004 Winter Leadership Conference

The Mass Torts Committee did not hold a business meeting at the Winter Leadership Conference in December 2004; instead, the allotted time was used to present a double-session program, in conjunction with the Mediation Committee, on mediation in bankruptcy cases. The first session covered basic mediation goals and styles and ended with a demonstration of a mediation in a hypothetical preference case. The second session concentrated on mediation in mass tort cases. Panelists and the audience engaged in a lively discussion of the types of issues and personalities that may make mediation more or less likely to succeed.

2004 Annual Spring Meeting

On April 17, 2004, the Mass Torts Committee conducted a joint educational program with the Ethics and Professional Compensation Committees. This was the first tri-committee meeting at ABI that encompassed back-to-back time slots. Thus, the program lasted about 2.3 hours with a short break between sessions. Short business meetings for each committee followed the program. The program consisted of a panel discussion of a variety of substantive, compensation and ethics issues in mass tort cases, some of which are peculiar to these types of cases. We were fortunate to have three experienced panelists, each of whom has had intensive exposure to the issues in these types of cases: Hon. Leslie J. Tchaikovsky, U.S. Bankruptcy Judge for the Northern District of California; Theodore L. “Ted” Freedman, Kirkland & Ellis, New York; and Robert M. “Bob” Fishman, Shaw, Gussis, Fishman, Glantz & Wolfson LLC, Chicago. The panel discussion was moderated by Richard P. Carmody, Adams and Reese/Lange Simpson LLP of Birmingham, Ala. Also participating were the committee co-chairs: Richard “Rick” Meth, Pitney, Hardin LLP of Morristown, N.J. (Ethics); and James D. Sweet, Murphy & Desmond of Madison, Wis. and C. R. “Chip” Bowles Jr., Greenbaum, Doll & McDonald PLLC of Louisville, Ky. (Professional Compensation). Ted Freedman is one of the co-chairs of the Mass Tort Committee. Unfortunately, Hon. Judith K. Fitzgerald, Chief Bankruptcy Judge for the Western District of Pennsylvania, was unable to attend because of family illnesses (though she was instrumental in planning the program).

The panelists discussed the following issues:

• The status of the Asbestos Bill (S. 2290), its prospects for passage and the constitutionality of “rolling up” trusts established since 1993.
• When a case is “ripe” for filing so that it is not dismissed as a “bad-faith” filing. (SGL Carbon, 3d. Cir.)
• The cast of professionals usually appearing during a mass tort case, with elaboration on the roles and duties of special insurance counsel for the debtor and the future claimants’ representative and his/her counsel, who have duties of due diligence in valuing the debtor and establishing the parameters of the trust established under §524(g) of the Code.
• Whether insurance companies, particularly non-settling companies, have standing as claimants or parties-in-interest.
• The payment of “facilitation fees”by the debtor, its affiliates or the settling insurers to claimants’ attorneys who can influence the acceptance of a consensual plan of reorganization, and the potential conflicts that can result (Combustion Engineering and Western MacArthur).
• The retention of special counsel, particularly insurance counsel on a contingent-fee basis, under §328, the criteria for approval and the ability of the court to re-visit the fee arrangement as “improvident”(Matter of Barron—5th Cir.).
• Payment of fees to counsel for committee members in addition to committee counsel (First Merchants Acceptance Corp.—3d. Cir.) and payment of fees to those creditors making a “substantial contribution.”
• Contribution by the settling insurers to the payment of the debtor’s administrative expenses as part of a consensual plan of reorganization.

2003 Winter Leadership Conference

The committee did not hold a formal meeting because we conducted a joint educational session with the Legislative Committee. The program dealt with current issues in pending asbestos legislation (FAIR Act) and how it is viewed by various constituencies. David Austern spoke on the current status of asbestos trusts and what will happen to them in the event the FAIR Act passes. Francis McGovern presented a power point and on the terms of the FAIR Act. Sander Esserman and Jim Stengel did a point/counterpoint on the pros and cons of the Act. The presentation ended with a summary of the impact of legislative uncertainty on pending cases and negotiations and possibilities of future legislative initiatives concerning mass torts. Ted Freedman moderated the discussion.

2003 Annual Spring Meeting

1. Ted Freedman and David Austern reported on recent legislative initiatives concerning asbestos. The Cannon and Dooley bills are pending in the House and the Nichols bill in the Senate. The Nichols Bill has no co-sponsors as yet. On the House side, Congressman Sensenbrenner has indicated he won’t push the bills throught the Judiciary Committee until the Senate acts.
2. Volunteers were solicited for these projects: Education for legislative aides and legislators on mass tort issues; an annual symposium (and getting CLE credit for our committee educational programs) on mass tort issues; creating a database on the ABI web site to list cases with plan confirmation issues or short case synopses and plan summaries as a resource for those facing similar issues; writing articles for the e-Newsletter published monthly by ABI. We would like to have an article published quarterly, at the least. The articles can be a paragraph or two on a current issue or a summary of a case. The maximum size is about 500-600 words—just two double spaced, typed pages. The ABI staff will format the article for publication: The author need not deal with that matter; only with the substance of the article.

   Ted Freedman will coordinate the data base and Legislative education project. Judi Fitzgerald will coordinate the symposium and e-Newsletter projects. Additional volunteers are needed and welcome on all projects!

3. A reminder was provided that there is a listserve of all committee members that can be accessed by any member.
4. The discussion of ways to reach members involved in mass tort, non-asbestos, non-drug cases was adjourned and will be added to the next committee meeting.
5. The Educational Program was on the topic: Lessons to be learned from Trust Distribution Plans (TDPs). David Austern, Trustee of the Manville Trust, described the current state of future claims estimation through information collected by the Trust and other trusts and spoke on the different investment strategies the trustees are using to try to keep value in the trusts in these days of declining rates of return.
6. Topics for educational sessions and for the next committee meeting were solicited. As of now, updates as to the four projects under way and an update on the asbestos legislation will be added to the next agenda.
7. Volunteers for our committee educational session are welcome. Contact either Ted or Judi!
8. The next meeting will be at La Quinta, California during the ABI meeting (December 4–6, 2003).

2002 Winter Leadership Conference

We had two experts who spoke about resolving asbestos bankruptcies, using litigation versus negotiated settlement strategies. Professor Francis McGovern from Duke University Law School and Sander Esserman, a practicing attorney from Dallas who represents asbestos plaintiffs and also serves as a futures representative, spoke. Ted had prepared materials with models to summarize the different approaches involved in some of the high profile cases, which were distributed to those in attendance, and Francis and Sandy spoke to those.

Our business meeting raised three concerns:

1. The concept of educating congressional staffers was not as well received. The concern was repeated that the ABI not be used as a platform for advocating any particular position or goal, and that putting together a balanced program when so many emotionally charged issues arise will be difficult. Nonetheless, there was some sentiment to looking into it to see whether we could join other groups—the ABA is apparently putting together a mass tort committee, the National Corporate Counsel Assn., and others that may have an interest in this project. One volunteer stepped forward: Richard Tauberman (The MWW Group, One Meadowlands Plaza, Sixth Floor, East Rutherford, NJ 07073-2137, 201.964.2408, Fax 201.507.0092, rtauberman@mww.com)
2. The concept of holding an annual symposium to deal with mass tort issues that are topical at the time. This idea was well received and there were two volunteers, who want to get started soon so that something else doesn’t fill up their time: Brent R. Cohen (2424 Pineer Ave, Suite 210, Cheyenne, Wyoming 82001-3076, 307.638.6262, Fax 307.638.6565, bcohen@rothgerber.com) and Richard Cohen (The Garden City Group Inc., 2720 Airport Drive, Suite 100, Columbus, OH 43219, 614.418.1735, Fax 614.418.1846, Cell 614.562.0626, Home 614.939.1702, Richard_Cohen@gardencitygroup.com) Ted Freedman and Lenny Goldberger have also agreed to work on this committee and Ted will arrange a conference call to start planning an event.
3. Whether there is use in setting up a data base of major issues and how they have been resolved in mass tort cases: People seemed to like the idea, but no one volunteered for any work. I asked them to drop one of us a line or call us about other cases missing from the list or any attorneys involved who could write up a couple of key points about what happened in the case, any unique or potentially trend-setting aspects, good briefs or opinions, etc.

In addition to those scheduled items, I asked for ideas to stimulate participation in the section. We had a small attendance, which was unfortunate since the educational presentation was so worthwhile. One person suggested that we need to advertise the fact that the group does more than just asbestos mass tort issues and should concentrate on hitting the issues in some smaller and mid-sized cases such as representing car rental companies who have mass tort claims due to accidents or alleged unsafe equipment. The concern is that the smaller cases don’t generate the publicity or the opinions of the court but some of the principles in the issues are the same as in the larger cases, so we should figure out a way to make that point and bring in more members. We will put this issue on the agenda for the April meeting in D.C.

2002 Annual Spring Meeting

The meeting was attended by 14 persons.

The meeting began with a summary of the procedural and substantive aspects of the February 8, 2002 “solvency” opinion issued by Bankruptcy Judge Jerry A. Brown in the Babcock & Wilcox case. The summary prompted a discussion among the attendees as to the battle in that contested matter between the various experts and the significance, if any, of the decision.

The second topic discussed was an update on miscellaneous developments in the five asbestos cases transferred to New Jersey and the fact that they are likely to be joined by a sixth case, Kaiser Aluminum.

The third agenda item was a synopsis of the decision issued by Judge Chirlin on February 26, 2002 in Fuller-Austin Insulation Company v. Fireman’s Fund Insurance Company. This decision has been characterized by Judge Chirlin as a “tentative ruling” in that declaratory judgment action commenced almost four years prior to Fuller-Austin's pre-packaged asbestos bankruptcy filing in Delaware in September, 1998. A lively discussion ensued concerning the decision’s amalgam of insurance/bankruptcy rulings and their precedential or persuasive value, if any.

The April 8, 2002 filing in Birmingham, Alabama of the Shook & Fletcher pre-packaged asbestos bankruptcy case was the focus of the fourth item on the agenda. The case background and dynamics, the history of the company and the structure of the plan were discussed, assisted by the company’s bankruptcy counsel and the Futures Representative who were among the attendees. The attendees talked about the value of the prepack in the asbestos bankruptcy environment from all viewpoints.

The meeting concluded with a brief discussion of the recently-launched listserve service available to ABI members, and topics for the Task Force’s listserve were solicited by the co-chairs.

The meeting was adjourned at 9:15 a.m.

2001 Winter Leadership Conference

The first agenda item discussed was the Babcock & Wilcox case management motions and how these motions fit into the context of the B&W

The second agenda item, the RAND Institute for Civil Justice’s “Asbestos Litigation in the U.S.: A New Look at an Old Issue,” was brought to the attention of the group. This report was published in August 2001 and documents the first stage of an ongoing study updating an analysis of asbestos litigation conducted in the early 1980s.

Current developments concerning the recent appointment of U.S. District Judge Wolin to handle the five asbestos cases in Delaware, and the import of the order, were also discussed.

The attendees talked about whether the Task Force should be continued due to the lack of attendance at many of the meetings, the largely homogenous makeup of those who did attend and the “asbestos” focus of the meetings to date. The consensus of the group was that the Task Force should be continued, with a focus beyond asbestos when current events dictated otherwise, and that perhaps there was an overlap between the ABA, Mealey’s and other similar groups that could be tapped. It was agreed that we would try and arrange for a joint meeting of the various “asbestos” groups at the Spring meeting in April.

The meeting was adjourned at 9:35 a.m.

2001 Annual Spring Meeting

Leonard P. Goldberger (White and Williams LLP; Philadelphia) gave a presentation entitled “Insurance Issues in Mass Tort Bankruptcy Cases: Strategic Perspectives.”

2000 Winter Leadership Conference

The first meeting of the Mass Torts Task Force was held at the Winter Leadership Conference in Scottsdale, Arizona on December 2, 2000. The meeting began shortly after 8 a.m. and was attended by nine persons, not including the chairperson. Interest in participating in the Task Force was expressed by two other individuals who could not attend.

Given its debut status, the meeting kicked off as a free-form discussion to elicit interest and participation. The meeting began with each of the attendees introducing themselves and their relationship to mass torts. These introductions prompted a discussion as to current trends in the legal landscape, including the recent wave of asbestos bankruptcies, the nexus between asbestos and tobacco claims and litigations and the effectiveness of class actions versus bankruptcies, with each topic being informed by the group’s different perspectives. The discussion then progressed into an analysis of the mission, purpose and objectives of the Task Force, and the importance of aligning the Task Force with other similarly-minded ABI and/or ABA committees or subcommittees. The attendees also discussed the narrow scope of section 524(g) of the Bankruptcy Code, in being limited to mass asbestos torts, and an earlier incarnation of that section that had initially surfaced as a new chapter. Interest in developing an agenda for the spring meeting was high. There was additional discussion about forming a database of pleadings, plans and other materials filed in, or relevant to, mass tort bankruptcies on the ABI website.