87 Fordham L. Rev. 107 (2018-2019)
Asbestos Trust Transparency

handle is hein.journals/flr87 and id is 118 raw text is: 









           ASBESTOS TRUST TRANSPARENCY


                             Mark A. Behrens*

                               INTRODUCTION

   Originally and for many years, the primary defendants in asbestos cases
were companies that mined asbestos or manufactured amphibole-containing
thermal insulation.1 Hundreds of thousands of claims were filed against the
major asbestos producers, such as Johns-Manville Corp., Owens Coming
Corp., and W.R. Grace & Co.2
   By the late 1990s, asbestos litigation had reached such proportions that the
U.S. Supreme Court noted the elephantine mass3 of cases and referred to the
litigation as a crisis.4 Mass filings pressured most of the lead defendants
and scores of other companies into bankruptcy, including virtually all
manufacturers of asbestos-containing thermal insulation.5
   Following   a   2000-2002    wave    of  bankruptcies   among     asbestos
manufacturers,6 plaintiffs' lawyers began a search for new recruits to fill the
gap in the ranks of defendants.7 Many of today's asbestos defendants are


* Mark A. Behrens co-chairs Shook, Hardy & Bacon L.L.P.'s Washington, D.C.-based Public
Policy Group. He advocates for asbestos litigation reform and other civil justice reforms on
behalf of business and civil justice groups. In 2015, he received the U.S. Chamber Institute
for Legal Reform's Individual Achievement Award. He received his J.D. from Vanderbilt
University Law School in 1990 and B.A. from the University of Wisconsin in 1987. Research
support for this Article was provided by the Coalition for Litigation Justice, Inc. This Article
was prepared for the Fordham Law Review Symposium entitled Civil Litigation Reform in the
Trump Era: Threats and Opportunities, held at Fordham University School of Law on
February 23, 2018.

    1. See James L. Stengel, The Asbestos End-Game, 62 N.Y.U. ANN. SURv. Am. L. 223,
238 (2006) (noting [a]s leading plaintiffs' counsel Ron Motley and Joe Rice observed some
time ago, the first seventeen asbestos defendants to go into bankruptcy represented between
50 and 75 percent of the liability share).
    2. See  STEPHEN  J. CARROLL ET AL., ASBESTOS     LITIGATION  xxiv (2005),
https://www.rand.org/content/dam/rand/pubs/monographs/2005/RAND MG162.pdf
[https://perma.cc/GH43-275B] (Approximately 730,000 people had filed an asbestos claim
through 2002.).
    3. Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).
    4. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597 (1997).
    5. CARROLL ET AL., supra note 2, at 67.
    6. See Mark D. Plevin et al., Where Are They Now, Part Eight: An Update on
Developments in Asbestos-Related Bankruptcy Cases, 16 MEALEY'S ASBESTOS BANKR. REP.,
Sept. 2016, at 28, 40 chart 1 (demonstrating that there were nearly as many asbestos-related
bankruptcies from 2000 to 2002 as in the previous two decades combined).
    7. Patrick M. Hanlon & Anne Smetak, Asbestos Changes, 62 N.Y.U. ANN. SURV. AM. L.
525, 556 (2007); see also CARROLL ET AL., supra note 2, at xxiii (When increasing asbestos
claims rates encouraged scores of defendants to file Chapter 11 petitions ... the resulting stays

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