The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

Travelers is Running Out of Rope in the Important Ongoing Saga from the Manville Bankruptcy

Posted in Asbestos, Asbestos Bankruptcy, Asbestos Trusts, Manville

Due to a Second Circuit ruling yesterday, Travelers is about out of rope in its effort to avoid paying $500 million to asbestos plaintiffs who sued it directly for its role in suppressing information about the full extent of the health hazards of asbestos. The suits arose because Travelers was Manville’s primary insurer while reports of asbestos disease flowed into Manville with increasing frequency, and Travelers was seeing and handling many of the claims. Travelers, however, never issued warnings, and kept writing insurance policies that prolonged Manville’s global sales of asbestos-containing products. Therefore, when Manville went into chapter 11, some plaintiffs’ lawyers moved their gun sights to directly target Travelers.

Some follow-up thoughts. Assuming Travelers fails to obtain cert, will Travelers and plaintiffs lawyers ensure transparency in accounting for payments to plaintiffs? And, which plaintiff and defense lawyers will in the future take advantage of this saga in terms of its implications for additional suits against Travelers, Manville, and others?

Supply Chain Issues – Are Ds and Os Paying Attention?

Posted in D + O Issues

Globalization can reduce expenses and raise profits by purchasing goods from the cheapest supplier. But purchasing the cheapest product sometimes is not a good answer. Literally decades ago, well run companies set up supply chain oversight and checking for overseas suppliers. Others, however, do little or nothing to check on suppliers, and some Ds and Os ask few questions. Failing to ask good questions can produce adverse headlines and financial consequences, as illustrated by this week’s set of stories about food recalls involving Chinese suppliers.

“Canvas” Technology that “Fingerprints” Web Site Visits – Imagine the Uses for Lawyers, and Potential Risks and Benefits for Clients

Posted in Litigation Industry

Amazing what’s out there on the web that may in the future provide interesting facts for lawyers.  A July 21, 2014 report at ProPublica provides an overview of emerging news about a technology known as “canvas fingerprinting.”  The technology records web site visits even if the browser is set to hide a user’s identity. So, now, for at least some web sites, lawyers potentially have a way to find out if juror X read a news article on the Acme trial. Or, a way to find out if opposing counsel or an expert has been visiting a web site. Or, perhaps a way to see if employees of company x (or government x) were browsing through your client’s web site. Perhaps the DOJ (or a divorce lawyer) can subpoena information about where your client was  web browsing. And, does your client’s company want to allow/use or not allow/use the technology on its web site. Are your Ds and O’s talking about these issues with your CIO? The list could go on …….and even more tracking software perhaps is out there but we do not yet know about it….

Warren Buffet Companies Take Over Even More of the US Asbestos Risk – New Deal Takes on Liberty Mutual Asbestos Risk

Posted in Asbestos, Insurance, Insurance Coverage for Tort Claims, Insurance Insolvencies, Litigation Industry

Developments continue for asbestos litigation – and insurance  coverage for asbestos claims. Warren Buffet’s companies already have been paid to take on an enormous share  of the US asbestos risk, including for London insurers and for domestic insurance companies such as CNA, and for AIG.   Buffet’s operations have  been subject to fierce criticism for taking positions that boil down to “delay, deny, defend,” according to the critics, which include asbestos plaintiff’s lawyers, such as Steve Kazan.  Now the Buffet companies are being paid to take on asbestos risk for Liberty Mutual. For Warren, it’s all about the float of taking in premium rapidly, and paying money out slowly.

As for the underlying litigation, one assumes the Liberty Mutual defense will now be folded into Resolute since one part of the article states:  “NICO will assume responsibility for claims handling related to Liberty Mutual Insurance’s asbestos and environmental claims.” 

The full article is pasted below:

Liberty Mutual Insurance Enters into Reinsurance Agreement with National Indemnity Company
“BOSTON, Jul 17, 2014 (BUSINESS WIRE) –On July 17, 2014, Liberty Mutual Insurance reached a definitive agreement with National Indemnity Company (“NICO”), a subsidiary of Berkshire Hathaway Inc., on a combined aggregate adverse development cover for substantially all of Liberty Mutual Insurance’s U.S. workers compensation, asbestos and environmental liabilities, attaching at approximately $12.5 billion of combined aggregate reserves with an aggregate limit of $6.5 billion.
At the closing of this transaction today, but effective as of January 1, 2014, Liberty Mutual Insurance ceded approximately $3.3 billion of existing liabilities under a retroactive reinsurance agreement. NICO will provide approximately $3.2 billion of additional aggregate adverse development cover. Liberty Mutual Insurance paid NICO total consideration of approximately $3.0 billion.
The agreement covers Liberty Mutual Insurance’s potentially volatile U.S. asbestos and environmental liabilities arising under policies of insurance and reinsurance with effective dates before January 1, 2005, as well as Commercial Insurance’s workers compensation liabilities as respects injuries or accidents occurring before January 1, 2014.
NICO will assume responsibility for claims handling related to Liberty Mutual Insurance’s asbestos and environmental claims. Liberty Mutual Insurance will continue to handle all workers compensation claims.
“We believe that this agreement further strengthens our financial position as it eliminates a substantial source of uncertainty in these liabilities and allows us to focus on execution in our core businesses,” said David H. Long, Liberty Mutual Insurance Chairman and Chief Executive Officer.
This transaction will be accounted for as retroactive reinsurance in Liberty Mutual Insurance’s GAAP consolidated financial statements and results in a pre-tax loss of approximately $130 million as of the effective date, which will be included in third quarter results.
TigerRisk Partners and Skadden, Arps, Slate, Meagher & Flom LLP acted as advisors to Liberty Mutual Insurance.”

“Occupational Cancer: Key Challenges and Opportunities for Change”

Posted in Asbestos, Cancer, Litigation Industry

The story of asbestos disease – and the resulting litigation – is part of the larger story of “occupational cancer.”  A new op-ed (free in full text) provides  comments on the past and future of occupational cancer detection, investigation and prevention.  It is:  Rushton,  Occupational cancer: key challenges and opportunities for change,  Occup. Med (Lond) (2014) 64 (5): 313-316. doi: 10.1093/occmed/kqu061. The entire article is worth reading;  some key quotes are below:

“In the British cancer burden study, the ranking of cancer types changes between population attributable fractions (PAF), deaths (AD) and cancer registrations [4]. The top five cancer sites for PAFs were mesothelioma (95%), sinonasal (33%), lung (14.5%), breast (4.6%) and non-melanoma skin cancer (NMSC) (4.5%). “


“Molecular epidemiology offers the opportunity to combine the scientific disciplines of epidemiology and molecular toxicology to investigate the interactions between genetic factors and occupational factors in the causes of cancer. These techniques have so far been little used in occupational studies. Future research will need to incorporate measurement of susceptibility and adjustment for the effects of factors which might relate to both health outcome and occupational exposure to carcinogens, such as age, ethnicity, gender, socioeconomic or deprivation status, smoking and access to health care, to aid the investigation of carcinogenic pathways and to detect gene–environment interactions. This will require multidisciplinary collaborative teams involving epidemiology, toxicology and exposure assessment.

In Britain, a relatively small number (14) of carcinogenic agents and occupational circumstances have been shown to currently account for 86% of estimated occupation attributable cancer [4]. Without intervention occupational attributable cancers are forecast to remain at over 10000 annually [11]. Cancers associated with asbestos, diesel engine exhaust, polycyclic aromatic hydrocarbons, work as a painter, radon and solar radiation are forecast to continue, with construction remaining the prime industry of concern.”