Mass Torts in a World of Settlement

The period prior to Amchem saw a transformation in the attitude of defendants toward mass tort class actions. The period since that decision has seen a similar transformation in outlook toward bankruptcy. The threat of bankruptcy provided much of the impetus behind efforts to make peace through class settlements. With the viability of class settlements thrown into doubt by Amchem and Ortiz, renewed attention focused on bankruptcy as a way to make the peace terms binding on present and future claimants. Once again, the asbestos litigation would prompt the stretching of institutional boundaries.

For bankruptcy to become an attractive vehicle from the standpoint of both asbestos defendants and plaintiffs' lawyers, the bankruptcy process itself would have to be transformed. The major downside of bankruptcy was all too familiar from the Johns-Manville proceedings that had prompted experimentation with class settlements in the first place. Bankruptcy holds out the tantalizing promise of a binding peace. It brooks no opt-outs, for example. But peace in asbestos-related bankruptcies previously had come only after years of wrangling—six years, on average, for the bankruptcies of eleven major asbestos defendants.¹ These delays resulted in dissipation of the debtor corporation's resources and delay in payouts to the clients of the asbestos plaintiffs' bar. For lawyers on both sides, the challenge lay in somehow streamlining the bankruptcy process, such that it could impose the desired peace terms much more swiftly. The present chapter analyzes the changes that would bring this goal within the sights of peacemakers.

The story begins where we left off with the Manville bankruptcy in chapter 5. Efforts to reform the foundering Manville trust led to an array of judicial innovations that Congress ultimately wrote into law in 1994, with

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