Section 524(g) Without Compromise: Voting Rights and the Absestos Bankruptcy Paradox

Abstract

Legislative and judicial efforts to make asbestos-driven bankruptcies more efficient, maximize assets available to compensate current and future asbestos victims, and preserve viable businesses have, over time, provided a small group of law firms a de facto veto power over any asbestos bankruptcy plan. Given the common presumption that this veto power is absolute, most asbestos defendant-debtors and bankruptcy courts have been extremely deferential to the Controlling Firms’ demands; even to the point to approving schemes that violate black-letter bankruptcy law and raise significant professional responsibility concerns. The result is an unusual paradox—the only way for debtors to obtain the asbestos plaintiff votes required to have a reorganization plan confirmed is to accept terms that will render the plan unconfirmable or, at least, unable to withstand a sustained challenge on appeal. Even if asbestos defendant-debtors ultimately overcome the paradox, they may be discouraged from pursuing a timely bankruptcy fling or choose increasingly risky alternatives outside of bankruptcy, thereby depleting their assets and reducing their ability to reorganize when they ultimately file Chapter 11. Under any scenario, whatever assets remain for future victims will be insufficient to compensate them for their injuries. This Article begins with an overview of the interwoven histories of asbestos tort and bankruptcy law. Against that backdrop, the second section questions the basic policy and administrative assumptions that produced the asbestos bankruptcy paradox. The Article suggests several basic, yet critical, judicial responses that will help restore the integrity of asbestos bankruptcy administration, preserve due process for future victims and advance bankruptcy law’s key goals of efficiency, fairness and finality.