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
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.
- The introduction of Rick Cohen from Garden City Group as the new
co-chair, replacing Hon. Judith K. Fitzgerald, who is cycling off.
- 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.
- 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.
- The reminder that our email list is available to institute
discussions, advise members of upcoming events of interest, etc.
- 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
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.
- 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
- 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 by the settling insurers to the payment of the
debtor’s administrative expenses as part of a consensual plan of
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
2003 Annual Spring Meeting
- 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.
- 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
- A reminder was provided that there is a listserve of all committee
members that can be accessed by any member.
- 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
- 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
- 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
- Volunteers for our committee educational session are welcome.
Contact either Ted or Judi!
- 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:
- 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, firstname.lastname@example.org)
- 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, email@example.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.
- 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
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
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
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
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
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
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.