In representing Travelers, Warren should have known the asbestos workers might never get paid

At the first debate between Scott Brown and Elizabeth Warren, Brown raised the issue of Warren’s Supreme Court legal representation of Travelers Indemnity Co. and related companies in asbestos litigation, for which Warren was paid $212,000.

Brown made the point that while Warren was paid a small fortune, the workers ended up getting very little after Travelers was able to avoid paying the settlement it had promised.

The issue played into Brown’s campaign theme that Warren was “not who she says she is” and fed upon issues related to Warren’s false claim to be Native American for employment purposes.

Since then the Warren campaign and sympathetic media have moved aggressively to portray Warren’s role as working to protect asbestos workers’ settlements. That the workers later were deprived of the settlement was portrayed as something unforeseeable, a “twist” with which Warren had no involvement.

I have spent considerable time digging through case files and briefing as to Warren’s representation of Travelers, and how it came to pass that Travelers ended up not having to pay the workers. What emerges is a story very much at odds with the positive narrative presented by the Warren campaign and the media.

I detail the story below, but here is the bottom line:

Warren played a role at a critical time in what ended up as one of the great coups in legal history, the enforcement of settlement agreements by which Travelers promised a massive settlement fund for asbestos victims, but which Travelers didn’t actually have to pay because a precondition to payment had not been met.

The precondition was that other insurers give up their claims against Travelers, without receiving any payment from Travelers. If the other insurers were not bound by the settlement, then Travelers did not have to pay the asbestos victims.

Thus, the asbestos victim fund was held hostage to whether Travelers could strip other insurers of their claims. By the time the case reached the Supreme Court the possibility, if not probabilty, that Travelers would not succeed in this inter-corporate fight — and that it would not have to pay the asbestos victims — was well known.

Warren was not working to help asbestos victims, except ancillary to Travelers fight against other insurers. Travelers ended up losing the fight with other insurers, which gave Travelers a contractual right not to make payment.

This outcome, even if unintended, was foreseeable at the time of Warren’s legal representation of Travelers. Warren got paid, Travelers got to keep its settlement money, and the asbestos workers were left out in the cold.

1. Background – The Johns-Manville Bankruptcy

The Supreme Court case on which Warren worked was titled Travelers v. Bailey, reached the Supreme Court in 2008, and was argued and decided in 2009. (Decision here, related documents here.)

To call the litigation history leading up to this point convoluted is an understatement. The legal and factual issues similarly were complex. Even among the groups of plaintiffs, there was not always agreement, as there were many classes of plaintiffs.

For example, by the time the case reached the Supreme Court, a group of The Asbestos Personal Injury Plaintiffs took a position against Travelers and Warren. A group of 10 law professors also opposed Warren’s position on the ground that the process and the payments were unfair to asbestos victims. So the traditional plaintiff and defendant lines were not clearly drawn.

The litigation arose out of the bankruptcy of Johns-Manville in the 1980s. The best description of the legal history relevant to Warren’s role was provided by the U.S. District Court in its March 1, 2012, decision that Travelers did not have to pay the settlement.

The short version is that after settling in 1986 with asbestos claimants who had claims against Manville, Travelers began to face suits directly against Travelers based not on Mansville’s conduct, but based on supposed malfeasance by Travelers itself. These claims arguably were not precluded by the 1986 settlement, although Travelers took the position that the 1986 settlement covered such claims.

Travelers also faced potential claims from other insurance companies who were being sued and who thought Travelers might have to “contribute” to or “indemnify” against settlements or verdicts.

Faced with these mounting actions from asbestos workers and the claims for contribution or indemnification from other insurers, in 2004 Travelers entered into a second set of settlement agreements, which is what was at issue in the Supreme Court in 2009.

As described in the March 1, 2012, decision, the payment obligation was contingent upon a bankruptcy court “Clarifying Order” which protected Travelers, among other things, from claims for contribution or indemnity from other insurance companies (footnotes and citations omitted for ease of reading; emphasis mine):

In 2003 and 2004, Travelers entered into three settlement agreements pursuant to which it agreed to pay $360 million to the Statutory Direct Action Plaintiffs, $70 million to the Common Law Direct Action Plaintiffs, and $15 million to the Hawaii Direct Action Plaintiffs (“the Settlement Agreements”)…. The Settlement Agreements provided that Travelers would make payments into funds designed to pay direct action claimants, who would be required to sign a general release of claims against Travelers to gain access to the appropriate fund…. The Settlement Agreements were each contingent upon the satisfaction of several conditions precedent. The two conditions precedent disputed on this appeal are as follows. First, the Settlement Agreements required entry by the Bankruptcy Court of a Settlement Approval Order and a Clarifying Order “containing prohibitions against Claims at least as broad as those contained in Exhibit A[,]” which Orders were required to “become a Final Order(s).” ….Exhibit A consisted of a proposed order stating, among other provisions, that all claims against Travelers “of any kind or nature whatsoever” “arising from or relating to” Travelers’ handling of asbestos claims, as well as “any claims for contribution or indemnity relating in any way” to the same, “are covered by the Confirmation Order and permanently enjoined as against Travelers, which were released therefrom under the Confirmation Order.”

Here is the relevant language from the 2004 Settlement Agreements (available in Chubb Joint Appendix):

Whether the bankruptcy court had the jurisdiction to issue the Clarifying Order was the issue before the Supreme Court. Whether the conditions to payment were satisfied was not before the Supreme Court. It was entirely possible, as ultimately happened, that the Supreme Court could rule that the bankruptcy court had the jurisdiction to uphold the settlement agreements, but that no payment by Travelers would be owed.

2. Prior to the Supreme Court Case, The Precondition to Payment Was In Doubt

By the time the case reached the Supreme Court, Chubb had objected to the settlements on the ground that Chubb was deprived of its legal rights in violation of the due process clause of the 5th Amendment, and was not bound by the settlements.

The Second Circuit Court of Appeals ruled that the bankruptcy court had no jurisdiction to enter the 2004 Clarifying Orders, and therefore the 2004 settlements were ineffective. The Second Circuit did not reach the issue of whether Chubb’s constitutional rights were violated, because it already had found the settlement agreements unenforceable on jurisdictional grounds. The Second Circuit declined to decide the issue as to Chubb [517 F.3d 52, fn. 26]:

FN. 26. Travelers asserts that if any portion of the bankruptcy court’s clarifying order is vacated then all of the relevant settlements will terminate. We offer no opinion on this matter and leave it to the parties, with the aid of the bankruptcy court, to determine the status of their settlements.

In its opposition to Travelers request that the Supreme Court take the case, Chubb wrote that there was a “catch” to the settlement payment obligation (emphasis mine):

Thus, Travelers was willing to pay the Direct Action claimants and their counsel upwards of half a billion dollars to settle lawsuits that it claimed were already barred by the 1986 Injunctions. But there was a catch. Travelers would pay the money, but only if Travelers could tie the settlement to a mechanism for cutting off any further Direct Action claims against it and any potential indemnity or contribution claims from its insurer co-defendants in the Direct Action Suits. Thus, each of the Direct Action Settlement Agreements was conditioned upon the entry of an order by the Bankruptcy Court “interpret[ing]” and “clarify[ing]” that the Direct Actions always had been prohibited by the 1986 Injunctions.

The issue of whether the other insurers were bound, and the precondition to payment met, was not before the Supreme Court for decision, 557 U.S. 137, 155, although the Supreme Court took note of Chubb’s position and the possibility that later litigation might undermine the settlement:

Our holding is narrow. We do not resolve whether a bankruptcy court, in 1986 or today, could properly enjoin claims against nondebtor insurers that are not derivative of the debtor’s wrongdoing…. Nor do we decide whether any particular respondent is bound by the 1986 Orders. We have assumed that respondents are bound, but the Court of Appeals did not consider this question…. On remand, the Court of Appeals can take up this objection and any others that respondents have preserved.

After the Supreme Court decision, the case went back to the Second Circuit which then ruled in favor of Chubb, 600 F.3d 135, 137 (2d Cir 2010)[sorry, no online link available](emphasis mine):

The matter is before us on remand from the Supreme Court of the United States, which determined that the bankruptcy court’s 1986 orders in Manville’s Chapter 11 proceedings-“whether or not proper exercises of bankruptcy court jurisdiction and power”-are not subject to collateral attack by either the parties to the 1986 proceedings or those in privity with them. Travelers Indem. Co. v. Bailey, — U.S. —-, 129 S.Ct. 2195, 2205, 2207, 174 L.Ed.2d 99 (2009). The Court directed us to address the parties’ remaining, properly preserved arguments. See id. at 2207. As the Bailey Court suggested, the primary current contention is the argument of Chubb Indemnity Insurance Company (“Chubb”) that “it was not given constitutionally sufficient notice of the 1986 Orders, so that due process absolves it from following them, whatever their scope.” Id. In our view, Chubb is correct.

The Supreme Court refused to accept an appeal from this decision.

3. Since a Condition to Payment was not met,Travelers did not have to pay

After the Second Circuit decision finding that Chubb was not bound by the settlements, Travelers objected to paying since a precondition to payment was not met. The Bankruptcy Court ruled against Travelers, but Travelers appealed to the District Court and was successful.

The District Court held in its March 1, 2012, decision that Travelers did not have to pay (citations and footnotes omitted)(emphasis mine):

Because a condition precedent in the settlement agreements was not satisfied, it was error to require Travelers to make the settlement payments…. Moreover, there is nothing unfair about not requiring Travelers to make the payments under the Settlement Agreements if it is not contractually bound to do so. To the extent the Bankruptcy Court invoked “its equitable powers to ensure that substantial justice is achieved” in an effort to ameliorate the effect of the conditions precedent, … New York law is clear that subjective notions of fairness or equity are not a permissible basis for a court to rewrite a contract or to excuse compliance with conditions precedent…. Because the conditions precedent to payment were not satisfied here, there is no legal basis to require Travelers to perform its obligations under the Settlement Agreements.

Travelers ended up with an enforceable settlement agreement without actually having to pay the settlement. Travelers did not get what it wanted, and now is open to claims from other insurers, although it’s unclear how much that will be.

Certainly there will be appeals. But as of now, Travelers does not need to pay the amounts owed under the 2004 settlements, which constituted more thant three-quarters of what was to be the total fund to pay asbestos victims.

4. Warren Exposed Asbestos Workers to the Risk that Travelers Would Not Have To Pay

Warren represented her client, Travelers, in a manner meant to vindicate Travelers’ rights. To have done anything less would have been a breach of Warren’s duty of loyalty to Travelers.

In the Supreme Court, Warren was not working to protect asbestos workers, but to protect Travelers not only from workers claims but also from contribution claims from other insurers, who would be paid nothing for having been stripped of those contribution rights. The settlement for asbestos workers was held hostage by Travelers in its corporate battle with other insurers.

The vindication of Travelers rights, however, exposed the asbestos workers to the foreseeable risk that payment would not be made because it was known that Chubb was contesting the settlement on grounds which ultimately were vindicated. Had Travelers not been successful in the Supreme Court, it would not have the benefit of the settlement agreement protecting it against at least some claims, as it does now.

5. Ten Law Professors Opposed Warren’s Position

While seemingly a huge sum, the settlement was criticized as inadequate and unconstitutional by a group of 10 law professors who filed an Amicus Brief opposite to Warren in the Supreme Court.

The law professors challenged not only the procedures used, which they believed unconstitutionally deprived individual claimants of their right to sue Travelers, but also the adequacy of the settlement amount (at pages 13, 18):

Nor can §1334(b) have been intended to authorize non-debtor releases of independent causes of action on the basis that public good is achieved by confirming a chapter 11 plan providing distributions to thousands of injured persons. Indeed, the recovery by those injured by Manville would be enhanced if the independent claims against Travelers are not extinguished…. In the present case, because Travelers was financially sound, the fund available to satisfy the claimants’ independent causes of action against it was not “limited.” Section 1334(b) should not be construed to confer bankruptcy jurisdiction to extinguish independent claims against a non-debtor which can be satisfied from an unlimited fund.

I highlight the position of these 10 law professors not because they necessarily were right as to the adequacy of the settlement, but to point out that Warren was not purporting to be looking out for the workers. That was not her role or legal obligation in the case.

A group representing “future claimants” took no position in the Supreme Court, other than seeking clarity as to various parties’ rights. As mentioned above, The Asbestos Personal Injury Plaintiffs also took a position against Travelers and Warren.

Warren violated no ethical obligation in seeking to convince the Justices to uphold the validity of an agreement as to which one of the preconditions for payment to the workers was at best in question and at worst unlikely to be satisfied.

By convincing the Supreme Court to uphold such a settlement agreement as to which the obligation to pay was in question, Warren properly represented her insurance company client. The asbestos workers, however, paid the price, as the obligation to pay fell apart as part of an inter-corporate battle.

6. The Fact Checkers Fell Down on the Job

We have seen how Warren represented Travelers as part of a corporate game of chicken in which Travelers sought to hold hostage a large settlement for asbestos workers in order to extinguish claims of Chubb and other insurers without paying those insurers anything. The result was that asbestos workers lost in a manner that was foreseeable at the time of Warren’s representation of Travelers.

Yet here is how Warren described her efforts for Travelers:

Travelers Indemnity Co. v. Bailey, 557 U.S. 137 (2009). In this case, Elizabeth worked to protect a $500 million settlement for victims of asbestos poisoning that another insurance company sought to invalidate. The Boston Globe has reported that most asbestos victims were on her side during the case, and the Supreme Court ruled in favor of her position.

That description, as we have seen, is not the full story. Warren was working to protect the settlement, but only because it was in the interests of her insurance company client. There was the distinct possibility, if not probability, that the settlement never would be paid because it was preconditioned on stripping other insurance companies of their rights.

Here’s how The Boston Globe fact checked a Brown ad about Travelers case (emphasis mine):

But despite Brown’s contention that Warren fought victims, the Globe reported that the attorneys who were represented most of the victims supported Warren’s efforts to grant Travelers immunity from asbestos-related lawsuits in exchange for the company setting up a $500 million trust, to be divided among current and future claimants. Travelers won the immunity. But after a series of legal twists, the company avoided paying the $500 million settlement. Warren was no longer involved at that point, but Brown argues she should have foreseen that potential result. Brown’s ad, citing a line from the Globe story, correctly notes: “The case has turned out disastrous for victims.”

This also is not quite accurate. There may have been “twists,” but they were twists which were known at the time of Warren’s representation, and as to which there were warnings.

Factcheck.org also dropped the ball, simply quoting plaintiff’s lawyers who clients were part of the settlement as backing Warren:

Bruce Carter, an Ohio attorney whose firm has worked on behalf of over 19,000 claimants in the case, told us Brown has simply mischaracterized Warren’s role. The idea that Warren was working against the interests of the victims, he said, is ”not true.” “During the period she worked with Travelers, the claimants (the victims) and Travelers were working together to do what was necessary to get these funds approved and established,” Carter said. “We were all working together for the benefit of the victims. We were working together toward a common goal.” The trust established through a settlement with Travelers avoided further legal wrangling that “could have taken many, many more years, if ever, to succeed,” Carter said. In other words, he said, the trust provided a mechanism for victims to actually get paid. In an interview with the Globe in May, Warren said, “The issue I was focused on like a laser was the constitutionality of preserving the trust, because the trust is a critical tool for making sure that people who’ve been hurt have a fair shot at compensation. Without it, millions of people who’ve already been injured will get nothing, and millions more in the future will get nothing.” How close was the relationship between Travelers and victims? Before the Supreme Court, the attorneys representing the victims gave Travelers’ attorneys their time so they could provide a more complete argument in favor of the settlement agreement, Carter said. “That tells you, we worked together toward a common goal,” Carter said. “We gave them our time to argue to the panel.” It was only after Warren left the case, he said, that Travelers “tried to back out of the deal and try to get something for nothing.” Another lawyer representing victims in the case, Edwin L. Wallace with the law firm Thornton & Naumes in Boston, echoed Carter’s assessment. “She was working for the victims,” Wallace said.

This discussion, again, misses the point. The critical decision was when the Supreme Court upheld the validity of the settlements while leaving to another court for later consideration whether the condition precedent to payment had been met. It was clear at the time that there was a substantial risk that the workers never would get paid while Travelers would get its partial immunity from suit, which is exactly what happened. Additionally, not all plaintiffs were aligned with each other, as they had often competing interests.

The notion that Warren was “working for the victims,” is belied by the facts.

7. Conclusion — Warren Did Her Job For The Insurance Company, and Workers Paid The Price

As I mentioned at the start, the litigation history was fairly convoluted, and the issues at times complex. But what was not convoluted or complex was Elizabeth Warren’s role in representing Travelers in the Supreme Court.

Warren represented Travelers as a critical juncture in the case, at a time when it was known that if the settlement agreements under which Travelers was to pay hundreds of millions of dollars were upheld, Travelers might never actually have to pay because at least one precondition to payment was in serious doubt. Travelers, through the settlements, sought to strip other insurance companies of their rights to assert claims against Travelers. The payment to asbestos workers was held hostage to this inter-corporate battle.

What was foreseeable came to pass. The Supreme Court, at Warren’s urging, upheld the validity of the settlement agreements, but those settlement agreements did not obligate Travelers to pay. It was not Warren’s obligation to look out for the workers, and she didn’t.

[Special thanks to Morgen Richmond, who used to blog at Verum Serum, for helping locate certain of the information and documents referred to here and which will be referred to in upcoming posts.]

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