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Ten Tips for Traversing the Terrain of Asbestos Bankruptcies
Bankruptcy has emerged as a dominant avenue for resolving mass product liability cases and, in particular, asbestos liability cases. Plaintiffs already have filed hundreds of thousands of asbestos claims, with many experts surmising that the peak of asbestos litigation is not yet in sight. Asbestos encompasses a family of naturally occurring fibrous materials that have superior insulation and tensile strength properties. Manufacturers began to exploit the flame-retardant and insulating properties of asbestos in heavy industrial use in the 1940s and incorporated asbestos into as many as 3000 products by the early 1970s, when industrial usage peaked. From automotive applications, such as gaskets and brakes, to home uses, such as roof shingles and attic insulation, the use of asbestos for commercial applications proliferated throughout most of the 20th century and still continues today at a decreased rate. The United States still consumes approximately 16,000 metric tons of asbestos each year.
Although asbestos is abundant, cheap and useful, it is also extremely hazardous. The United States Department of Health and Human Services classifies all types of asbestos as carcinogenic when in their airborne or “friable” state. Inhalation of asbestos fibers can cause mesothelioma, lung cancer, asbestosis and pleural thickening of the lungs. Between 1940 and 1979, more than 27 million workers in the United States were exposed to significant amounts of asbestos dust in the workplace, and countless others encountered asbestos in their everyday lives. Because of the long latency period of asbestos-related disease, cancer claims arising from the peak usage years of the 1970s have yet to be brought. It is estimated that more than 85% of U.S. industries face, or will face, asbestos claims.
For many victims, the bankruptcy court is the forum in which their claims are resolved. The Supreme Court has disapproved proposed mandatory class action settlement of asbestos claims, and Congress has been unable to muster a consensus for proposed legislation creating a mandatory administrative compensation scheme. As a result, bankruptcy has emerged as the only ready means for companies to limit their asbestos liabilities. Approximately 80 companies now have filed for bankruptcy at least partly due to asbestos claims.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
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