- As one who wrote at length about the silicone-implant litigation at the time — founded as it was on junk science theories hyped to panic potential plaintiffs — I agree that Elizabeth Warren has nothing to apologize for about her bankruptcy work for Dow Corning. Move on to better criticisms, please [Darren McKinney, WSJ] Related: Federalist Society teleforum on mass tort bankruptcies with Steven Todd Brown, Ralph Brubaker, and Dan Prieto;
- “What should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers’ premises? To avoid risk, should the retailers exclude them from their stores?” [Eugene Volokh quoting federal court opinion in Budreau v. Shaw’s Supermarkets, Inc. (D. Maine)]
- New York residents should brace for higher taxes as trial-lawyer-backed bill in Albany exposes public authorities to more road claims [John Whittaker, Jamestown Post-Journal]
- “Kansas Supreme Court Throws Out Personal Injury Damages Cap” [Associated Press]
- Whose proposal for joint trial counts as triggering removal of mass action under the Class Action Fairness Act? The court’s? Choice between federal and state courts implicates fundamental questions of fairness [Eric Alexander, Drug and Device Law on Supreme Court certiorari petition in Pfizer v. Adamyan]
- Glyphosate, talc verdicts suggest juries may be paying more attention to purported smoking-gun documents than to scientific evidence on causation [Daniel D. Fisher, Northern California Record; Corbin Barthold, WLF] “Inconsistent Gatekeeping Undercuts the Continuing Promise of Daubert” [Joe G. Hollingsworth and Mark A. Miller, WLF]
- Advice to Mark Calabria, newly installed as head of the Federal Housing Finance Administration, or FHFA [Arnold Kling; more on what to do with Fannie and Freddie]
- Bad blood between Joe Biden and Elizabeth Warren on consumer bankruptcy issue goes back decades [Matthew Yglesias, Vox]
- “Financial planning websites consistently emphasize paying off revolving high-interest debt before saving for retirement (unless a company offers a match rate).” But state-mandated auto-IRAs nudge workers the other way [Aaron Yelowitz, Cato, earlier]
- Competition for incorporation: “Nevada adopts fee-shifting: Should Delaware worry?” [Stephen Bainbridge]
- “The True Winners and Losers of Financial Regulation” [Diego Zuluaga] Fed vs. narrow banks [John Cochrane, more]
- FATCA was the bad fairy’s curse at the royal baby shower: “Welcome to Tax Hell, Little Earl of Sussex” [Suzanne Lucas, earlier]
For well over a decade it’s been apparent that the distinctive arrangements by which asbestos plaintiff’s lawyers acquire control of the bankrupt remains of defendant corporations they’ve sued, and then exercise control over those firms’ claims, disbursements, and general management, is fraught with self-dealing and sometimes fraud, ranging from the charging of unnaturally high fees to the concealment of double- and triple-dipping by claimants. Business interests have pursued a campaign in the states and Congress to require more transparency and better judicial oversight of asbestos bankruptcy trusts. Now they may have a powerful ally indeed in the federal government, which has weighed in with an early statement of interest in one such bankruptcy to insist on better controls against fraud and abuse. Its standing for such an intervention arises in part from its role as Medicare and Medicaid payor (entitled by law to recoup some health-related outlays) rather than merely from any interest it might have in heading off fraud generally. [Daniel Fisher, Forbes; Daniel Gill, Bloomberg Law] Fisher:
In the Trump administration, at least, the government will no longer look the other way as asbestos lawyers negotiate lenient terms that make it easy for their current clients to get money at the expense of future claimants and federal entitlement programs….
The government’s unusually blunt statement of interest in the Kaiser Gypsum bankruptcy, long before any plan of reorganization has been approved, warns lawyers against including terms that make it hard to ferret out fraud and abuse, including confidentiality requirements that make it impossible to determine how much claimants have been paid and the basis for their claims….
The Justice Department also warned it will be looking for excessive fees and may not allow claimants to deduct those fees from reimbursement due the government for Medicare and Medicaid expenses.
Sequel: Feds object to trustee candidate in Duro Dyne bankruptcy.
“In Memphis, an entrenched legal culture has made bankruptcy a boon for attorneys while miring clients in a cycle of futility.” [Paul Kiel with Hannah Fresques, ProPublica/The Atlantic]
Under federal bankruptcy law, people overwhelmed by debt have a choice: They can either file under Chapter 7, which wipes out debts and, since most filers lack significant assets, allows them to keep what little they have. Or they can choose Chapter 13, which usually requires five years of payments to creditors before any debts are eliminated, but blocks foreclosures and car repossessions as long as debtors can keep up. In most of the country, Chapter 7 is the overwhelming choice. Only in the South, in a band of states stretching from North Carolina to Texas, is Chapter 13 predominant….
Upon filing, debtors are shielded from garnishments and debt collectors. But whereas under Chapter 7 those protections are generally made permanent after a few months, under Chapter 13 they last only as long as payments are made. Most Chapter 13 filers in Memphis don’t last a year, let alone five.
The two options have a different structure of legal fees. While Memphis lawyers typically charge around $1,000 for a Chapter 7, most offer a Chapter 13 for free. “Ultimately, the fees for Chapter 13 filings are higher — upwards of $3,000 — but the payments are stretched over time.” Now, the no-money-down model of Chapter 13 bankruptcy is spreading to Northern states. But there is another point of view as well: “many see Chapter 13 as the more honorable form of bankruptcy because it includes some attempt to repay debts.”
North Dakota and Mississippi have become the third and fourth states to enact laws requiring more transparency of the trusts formed to administer companies declaring bankruptcy amid asbestos litigation [Sara Warner, Huffington Post] “With Obama’s veto threat gone, asbestos ‘double-dipping’ bill reintroduced” [Jessica Karmasek, Legal NewsLine] “State AGs Probe Asbestos Bankruptcy Trusts To Recover Medicare Payments” [Daniel Fisher] And per a paper from the U.S. Chamber, Ohio’s pioneering asbestos claim transparency law is working well [Institute for Legal Reform]
- Per more than 30 state attorneys general, the less information lenders can draw on in credit reports, the better the credit system will work [Annamaria Andriotis, WSJ; exclusion of many tax liens and civil judgments under pressure from authorities]
- Federalist Society podcasts: Ted Frank on Walgreen shareholder litigation, Thaya Brook Knight on “predatory lending” cases before Supreme Court [Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami; can cities sue under Fair Housing Act as indirectly injured?];
- The eternal recycling of bad old ideas: efforts to bring back public ownership of banks persist [East Bay Express, Oakland; earlier]
- Statutes of limitations protect us from spending life anxious about distant past coming back to haunt us over half-forgotten slights [Ilya Shapiro, Thaya Brook Knight, and David McDonald on Kokesh v. SEC “equitable disgorgement” end-run around 5-year statute]
- Obligatory employee vacation-taking as an anti-fraud measure [Dan Lewis, Now I Know]
- Obama’s hosing of secured creditors in Chrysler bankruptcy raised borrowing costs of other unionized firms [Bradley Blaylock, Alexander Edwards, and Jared Stanfield, SSRN]
The case famous for helping crack open some of the secrets of the asbestos litigation business has reached a settlement, which will apparently include a settlement (probably without admission of wrongdoing) of civil RICO claims against several law firms. The revelations in the Garlock bankruptcy helped to bolster evidence that “some victims and their lawyers tell one story in one venue and another someplace else to ‘double dip’ the system” in cases against separate defendants. [Sara Warner, National Courts Monitor/Huffington Post; earlier]
- Bernie Sanders proposals on college finance would not only cost megabucks but homogenize/bureaucratize higher ed [David Fahrenthold, WaPo] While Sen. Sanders “understands that health care and education are the New Commanding Heights”, his colleague Sen. Warren knows how to inquisit-ize them [Arnold Kling]
- It’s often said that student loans are undischargeable in bankruptcy, truth seems to be a bit more complicated [George Leef]
- The zombie programs that just won’t die at the Department of Education [Danny Vinik, Politico]
- If you wonder why the construction costs of a new high school in my area clock $115 million, look to changes in state prevailing wage law [Charles Jenkins, Frederick News-Post]
- Modest ideas for federal-level education reform: repeal IDEA, English-language-learner mandates [Education Realist]
- How Title IX came to shape college procedures on sexual assault allegations [Scott Greenfield]
- British Columbia Supreme Court: not negligent to allow middle schoolers to play variety of tag called “grounders” [Erik Magraken]
Adventures in bankruptcy and other high-stakes litigation. [Stacy Perman, Fortune]
Billing an estate $3,500 for a New Orleans outing doesn’t work out so well for a bankruptcy trustee [IFS Financial Corp. et al v. Smith, S.D. Tex, PDF]