Leading mass tort lawyer Andy Birchfield of the Beasley Allen Law Firm is expressing strong support for a thought-provoking article in Bloomberg Law authored by James F. Conlan, a seasoned expert in corporate restructuring and the former Global Practice Leader of Sidley Austin's worldwide Restructuring Practice. Mr. Birchfield and others in leadership have led the fight on behalf of more than 50,000 women and men and their families against Johnson & Johnson’s (NYSE: JNJ) controversial attempt to use bankruptcy to avoid legal and financial liability for conditions such as ovarian cancer and mesothelioma that are associated with the company’s tainted talc products.
In the commentary, Mr. Conlan rightfully points out that the Texas Two-Step bankruptcy approach, employed by several solvent and highly profitable mass tort defendants, has yielded a series of high-profile failures. In a Texas Two-Step, an otherwise profitable company moves some or all its liabilities into another company and then places the second company into bankruptcy. This strategy includes two recent bankruptcy attempts involving LTL (Johnson & Johnson) which federal courts found were filed in bad faith. These failures have underscored the need for a more balanced and effective approach to resolving mass torts that respects the interests of both public companies and claimants.
During his 32-year career at Sidley, Mr. Conlan pioneered what is called “structural optimization” of mass tort defendants, which seeks to appropriately transfer legal liabilities to “disaffiliated” entities and new owners with more than adequate funding to meet the legacy liabilities, including future claims.
Plaintiffs’ lawyers in talc-related ovarian cancer cases share Mr. Conlan's concerns that the Texas Two-Step has “polluted” the narrative and dialogue around the legitimate interests of a public company in obtaining finality and the legitimate interests of claimants to have their claims determined (or settled) in the tort system and paid in full.
Advocates who represent mast tort plaintiffs agree that achieving a fair and just resolution for claimants while addressing the legitimate interests of public companies is essential. Mr. Conlan writes that structural optimization, followed by disaffiliation has previously proven effective and fair in several cases involving mass tort liabilities.
According to Mr. Birchfield, “This approach should be appealing to shareholders at a company such as J&J where talc liabilities have materially depressed the price of its stock and overall value. Mr. Conlan provides a roadmap for a process that can be fair to both corporations and victims and finally provide an avenue for relief for thousands of women and their families who merely want justice and the ability to pay for their medical costs and lost wages."
Plaintiffs’ lawyers supporting ovarian cancer victims believe that Mr. Conlan's insights provide a valuable perspective on how mass tort defendants can achieve the much-desired "finality" without resorting to bankruptcy. They share his vision of a win-win solution where claimants can pursue their claims in the tort system while companies divest themselves of these liabilities.
Mr. Conlan’s commentary can be found here.
Mr. Conlan is Chief Executive Officer of Legacy Liability Solutions. Legacy is able to advise and acquire restructured liability-tainted companies and manage the liabilities over several decades to finality.
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