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  • Writer's pictureKirk Hartley

Mass Tort Bankruptcies – Key Issues Raised Today in SCOTUS in the Travelers/Manville Asbestos

Updated: An April 6 blog entry by Alison Frankel includes a letter from Cozen O’Conner responding to Mr. Ostrager.

Today’s oral argument date in the Supreme Court for the Travelers/Manville case has drawn some massive hyperbole in a blog article. The article quotes Travelers’ counsel, Barry Ostrager, as saying that the case is very important, but that one of his opponents, Chubb Insurance Company, has received the worst legal advice “ever” in arguing its position. It’s true the case may have a massive impact on the use of bankruptcy court as a means to resolve “mass tort” litigation. As for the quality of the legal advice provided to Chubb by Jack Cohn, consider that an estimable group of bankruptcy and constitutional law professors disagree with Mr. Ostrager, and explained why in an excellent amicus brief that is available here for no cost through the SCOTUS wiki and the ABA’s efforts to put SCOTUS briefs online.

The Travelers issue boils down to whether a bankruptcy court can issue a national (global?) injunction that bars any and all future claims against an insurer of the debtor after the insurer has paid money to settle coverage claims brought by the debtor. In my view, the correct answer is: no, for a variety of reasons. The main reason? Such a sweeping injunctive order is improper for a variety of reasons. The principal flaw is that government action that improperly takes away property rights (legal claims against the insurer) of third parties, and takes the claims away without providing a meaningful prior hearing or payment of just compensation, thereby violating the 5th amendment rights of the persons whose claims are extinguished.

I argued many of the same issues last year in the Federal-Mogul asbestos bankruptcy. The bankruptcy court judge, Judith Fitzgerald, has heard many of the asbestos bankruptcies pursuant to an appoint met order by the Third Circuit. She did not reach all the issues but did apply the “derivative” standard that is at issue in the Travelers/Manville case. There, in a September 30. 2008 opinion, Judge Fitzgerald blocked an effort to expand bankruptcy court jurisdiction. See In re Federal-Mogul Global, Inc, 2008 Bankr. LEXIS 3517. I’ve frequently disagreed with Judge Fitzgerald, but she ruled correctly in this instance and her ruling also supports Chubb/Jack Cohn. And, for what it’s worth, I also agree with Chubb and Jack Cohn.

As always, please bear in mind my standard disclosure: I have in the past and do now represent non-insurer parties opposed to certain terms of asbestos bankruptcies, and also have represented and do represent entities that are defendants in or financially tied to asbestos litigation through indemnity obligations or shared insurance. Further specifics are available on my bio at my law firm’s website ( or feel free to email me at work if you need further information. .

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