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  • Writer's pictureKirk Hartley

Signifcant Mass Tort Bankruptcy Issues in the W.R. Grace Asbestos Chapter 11 Case

Significant mass tort bankruptcy issues are being contested as the W.R. Grace asbestos chapter 11 case moves deeper into its phased confirmation hearing. Subsequent posts will touch on some of the issues and pleadings. Two issues are of perhaps greatest overall note. First, multiple objectors are arguing that Grace in fact is solvent, and so they argue the plan is not confirmable because the payouts called for by the plan violate, they say, various subsections of code section 1129 regarding the relative rights to payments as between creditors and equity holders. In short, they say the equity owners are being allowed to keep too much in the way of assets.

Another big picture point is that the Grace case presents an unusual and wide-ranging set of plan objectors, with most or all of the challengers having apparently uncontested standing to object to the plan. So, this chapter 11 case could end as one of the few asbestos chapter 11 cases that actually ends with rulings and judgments instead of the usual bankruptcy court deals. As a reminder of how Grace came to this juncture, recall that on April 7, 2008, W. R. Grace announced a settlement in principle of many but not all of the asbestos injury claims related to its long-running Chapter 11 case. The settlement occurred when the case was in the midst of a hotly contested trial on “liability estimation” for personal injury claims. Grace had presented significant evidence on the flaws of the “mass screened” asbestos cases, and was slated to present further evidence intended to diminish the value of future claims. Overall, Grace was putting on evidence to prove that many or most claims against were frivolous claims. Part way through that battle, Grace and the ACC (the Asbestos Creditor’s Committee) reached a deal. The prior settlement deal is described in the excerpts set out below from this article by Alison Frankel in the online American Lawyer. Familiar Faces Central to W.R. Grace’s Settlement of Asbestos Claims The American Lawyer By Alison Frankel April 09, 2008

*** Familiarity doesn’t preclude disagreement, however. W.R. Grace, which was forced into Chapter 11 bankruptcy in 2001 by asbestos liability, estimates the settlement to be worth less than $2.5 billion in present day value. The plaintiffs lawyers say its present value is closer to $3 billion. The trust that will pay out asbestos claims will be funded by a $250 million cash contribution from Grace (payable on the company’s emergence from Chapter 11); an additional $1.55 billion from Grace paid over 15 years, beginning in 2019; Grace’s asbestos insurance coverage, worth an estimated $600 million; warrants to purchase Grace shares; and more than $1.2 billion in previous settlements with companies accused of fraudulently purchasing Grace assets. Unlike previous bankrupt companies that reached deals with asbestos claimants, W.R. Grace went to trial to challenge the plaintiffs lawyers’ estimation of its liability for the more than 100,000 asbestos claims it faced. Claimants estimated that liability to be $3.5­ billion to $7 billion. Grace contended it owed less than $800 million, though it set asbestos reserves at $1.7 billion. Beginning in January, Delaware federal bankruptcy court Judge Judith Fitzgerald presided over a trial to determine both the appropriate way to estimate claims and the total value of those claims. Grace had concluded its case and plaintiffs lawyers had presented their first witness when the deal was reached.

“The real driving force was not what was happening in Judge Fitzgerald’s courtroom but how long it would take to reach a conclusion through litigation,” says Elihu Inselbuch of Caplin & Drysdale, who was counsel to the asbestos claimants committee. “It could easily have gone on another four years, with asbestos victims getting sick and dying the whole time.”

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