By Christopher Doi
On March 13, the House Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law held a hearing to discuss H.R. 982, the so-called Furthering Asbestos Claim Transparency Act of 2013. The bill would impose unnecessary and burdensome new requirements on victims harmed by asbestos exposure. It would make it harder for asbestos victims to receive fair compensation from trust funds.
Asbestos is a carcinogen that has killed hundreds of thousands of people. In the 1990s, Congress passed legislation designed to ensure at least some compensation to victims even when companies went bankrupt. It established trust funds to compensate victims while those companies reorganized under bankruptcy law. Since most victims were exposed to asbestos from multiple companies, they can recover damages from every entity that caused the harm. If a firm has gone bankrupt they can file a claim with a trust. They also can go to court, if the company remained solvent.
Trusts receive tens of thousands of claims. Though there is no evidence that these claims have been mishandled, the bill would require the trusts to file quarterly reports to the bankruptcy court describing each and every one of them. They’d also have to explain the basis for payment for each claim. Furthermore, the bill compels trusts to expose information of any payment or demand for payment made by claimants to any party involved in asbestos-related litigation. Critics call this a “delay ‘till they die” strategy. They say the real purpose of all this is to drain the trust funds of money that should go to victims and stall the process so more victims die before they can be compensated. As Rep. Steve Cohen (D-Tenn.) noted, the bill is essentially a “solution in search of a problem,” which serves only to potentially deny asbestos victims full compensation for the harm they suffered as a result of asbestos manufacturers’ malfeasance.
Elihu Inselbuch, representing the law firm of Caplin & Drysdale, exposed the double-standard that Republicans are seeking to apply to asbestos victims; the “transparency” sought by the bill is entirely one-sided. The proposal puts no burden on the companies that knowingly caused massive harm while actively hiding health risks from the public. Rep. Cohen added that the bill would shift costs from corporate defendants to the victims of asbestos exposure, by requiring they spend money on disclosing information that defendants can already receive through subpoenas.
|Rep. Steve Cohen (D-Tenn.)|
When Rep. Cohen pressed Subcommittee Chairman Spencer Bachus (R-Ala.) about this, the Chairman’s first proposal was to reopen the record to allow victims to submit testimony without delaying the Subcommittee’s vote on the Act. In other words, after the Subcommittee voted, members who were so inclined could read what the victims had to say.
Rep. Cohen denounced the move as an insult to the victims and a mockery of due process. Freshman Rep. Hakeem Jeffries (D – N.Y.) said the proceedings should be “for the victims, not the asbestos industrial complex. If we are acting on behalf of the victims then we should hear from the victims” before the vote. After being pressed by his Democratic colleagues, Bachus was forced to delay the vote for thirty days, until the subcommittee had an opportunity to hear testimony from the victims.
The subcommittee’s decision to postpone the vote was a small win for the rights of asbestos victims. True victory will come only if Congress actually listens to the asbestos victims and their families and rejects H.R. 982.
Christopher Doi is a student at American University Washington College of Law