Will Scholars Write More About Claim Payments Trusts as an Answer for Major Litigation and Environme
Times surely change in the litigation industry. Once upon a time (that is, the late 1980s), the Johns-Manville asbestos claim trust was considered a novel and creative approach for resolving massive amounts of litigation arising from asbestos products. Today, twenty years later, consultants increasingly market chapter 11 "liquidating trusts" as the means to resolve claims and achieve a clean break from the past. Thus, Huron Consulting recently sent out an enewsletter promoting the use of liquidating trusts to resolve claims. The same information is on Huron’s website, at this page, and part of its message is set out below the line. Meanwhile, the BP Fund continues to provide a high profile example of using a trust to resolve claims outside of chapter 11.
Unfortunately, Huron and others are not addressing whether the the use of trusts is being done well, and whether it is producing sound outcomes that are consistent with sound legal or social policy. One hopes that bankruptcy, due process, tort law and insurance scholars will spend more time thinking and writing about those issue.
"A liquidating trust can be a valuable tool for resolving Chapter 11 cases in which:
consensus cannot be achieved among the stakeholders.
major litigation or environmental concerns are lingering and preventing the timely confirmation of a plan of reorganization or liquidation (a "Plan").
the company is looking for a clean break and cost-effective vehicle to wind down the estate.
A liquidating trust is a separate legal entity that contains all or selected assets and stakeholder interests and becomes a successor in interest to the debtor. It allows for concluding a bankruptcy case with less bankruptcy court oversight and creditor involvement than exists prior to confirming a Plan, while allowing for redress to the bankruptcy court and when necessary to accomplish the goals of the Plan and corresponding trust agreement.
In some situations, multiple trusts will be created in order to represent the interests of different stakeholders. For example, certain hard assets may be transferred into a trust for the benefit of secured creditors, while a separate trust is created for unsecured creditors. Claims such as avoidance actions may be transferred to the second trust in order to allow for a recovery to those unsecured creditors. "