Defendants and plaintiffs alike suffer from the abuse. The only beneficiaries are the plaintiffs’ attorneys.
By David B. Rivkin, Jr., And Laurence A. Friedman
January 4, 2024, in the Wall Street Journal
Mass tort exposure has created an epidemic of bankruptcies, affecting organizations from Johnson & Johnson (talcum powder) to the Boy Scouts (sexual abuse). The way this process has unfolded is causing the federal bankruptcy system to come apart, harming the plaintiffs and bankrupt entities alike. Nobody benefits but the plaintiff lawyers.
Trial lawyers have found an opportunity to exploit the traditional bankruptcy claims process through the use of well-honed mass tort shakedown strategies. The scheme is simple but damaging. Plaintiff lawyers invest in a flurry of marketing through social media, TV and radio ads, often using professional “lead generation” companies, to identify the maximum number of potential tort claimants.
These claims can’t be fully verified, challenged or adjudicated within the framework of bankruptcy proceedings. Their proliferation siphons off tremendous resources from companies that are already in financial distress, compromising their ability to emerge from bankruptcy and short-changing established creditors, including earlier plaintiffs. As a lawyer for one of the Boy Scouts’ insurers told the press in 2021: “Allowing invalid and fraudulent claims will hurt valid survivors of sexual abuse by delaying and diluting any compensation they would receive.”
The bankruptcy reorganization process involves restructuring a company in a manner that maximizes its value, then distributes that value efficiently to creditors (including employees, bondholders and vendors) through a court-approved plan, thus staving off liquidation. This is possible because creditors and other stakeholders have predictable expectations of how the bankruptcy will proceed and their claims will be treated.
Creditors often must accept less than their original claims. But the process keeps the organization running, protecting jobs by putting its business operations on a sound financial footing again. Sometimes creditors are assigned ownership in a reorganized company, giving them a stake in a reasonably prompt and efficient resolution of bankruptcy.
But when the trial lawyers bring their “claims” to the table, all bets are off. Insurance companies, creditors, the bankrupt entity and sometimes its principals are forced back to the drawing board. The trial lawyers then typically offer an “easy” solution: create a separate bucket of cash to be held in trust as the sole source for resolution of the mass tort claims (including lawyer fees). Since the voting power in the reorganization plan approval process is driven by the aggregate amount of each creditor’s claims, claim proliferation gives disproportionate powers to the plaintiff tort lawyers.
The Boy Scouts of America bankruptcy in Delaware is a perfect example. At the time of the initial bankruptcy filings in 2020, the number of actual lawsuits filed by abuse claimants was less than 300 and expected to grow to about 2,000. Then the mass-tort lawyers brought more than 80,000 new, unadjudicated sexual-abuse claims into the case. If the judge allows final plan approval taking into account these new claims, the result will dilute the funds available to the original victims whose suits were the impetus for the bankruptcy filing in the first place. Their expected payouts could be reduced from $1.2 million to $30,000 a claim.
In the Johnson & Johnson bankruptcy case, the first set of trial lawyers objected to the original reorganization plan and extracted an agreement to increase the pot of settlement money from $4 billion to more than $9 billion. Then a different set of mass tort lawyers objected to this second attempt to resolve the claims. Result: chaos, with the second bankruptcy now on appeal, the company contemplating a third, nothing conclusively resolved, and potential for ever more filings going forward.
The mass-tort lawyers use sophisticated lead-generation algorithms to capture potential claimants by promising lottery-size payouts. A sampling of solicitations on the web for those wondering if they may have a claim against Johnson & Johnson is instructive. Preliminary questions suggest that if you have been diagnosed with cancer, you may have a claim—even if you didn’t use the product but someone in your home did.
Another site suggests that the average judgment in a talc-related claim is $4.4 million. Yet simple math tells us that if the $9 billion proposed settlement is divided by the number of current claims—60,000—the average payout is more like $150,000. Legal and administrative fees can eat up 40% of that. The Federal Trade Commission would ordinarily bring enforcement cases against businesses putting out such misleading advertisements.
Congress could come up with systemic solutions to the claims-proliferation problem, but that seems unlikely given political gridlock and trial lawyers’ clout. The Judicial Conference of the U.S., which prescribes the official rules and forms governing bankruptcy practice and procedure, is a more viable avenue for reform.
The Judicial Conference could quickly change the claim forms to require greater upfront disclosures—including requiring submission of a specific diagnosis linking the claim to the alleged tort, as well as disclosure of any relationship between the doctor giving the diagnosis and the lawyers—and heightened certification requirements for lawyers and others who help file claims on behalf of tort claimants. Bankruptcy judges could appoint claims examiners in cases where large numbers of claims are brought into the proceedings to review how claims were generated and to advise judges on their findings, prior to those claims being allowed. And those judges need to be looking more closely at how lawyers are shaping the proceedings, serving as a cop on the beat in these cases.
Without such a new approach, the corporate bankruptcy system will continue to deteriorate, at the expense of troubled companies, their creditors and plaintiffs alike.
Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Friedman is managing member of Friedman Partners LLC. He was director of the Executive Office for U.S. Trustees, 2002-05, and a Chapter 7 bankruptcy trustee.