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Marketing Tips -Linkedin

Most of us have Linkedin accounts, but most of us are not particularly active on the site.  What I've found helpful is to took through my contacts who live in Miami, where I live and practice, find attorneys with complimentary practice areas, and ask them to breakfast or lunch.  Sometimes its attorneys I know through voluntary bar associations or cases I've had.  Sometimes, it's attorneys I've never met, but their Linkedin profile suggests to me we have something in common and may make a good networking connection.  My experience has been positive, meeting new people on a one-to-one setting, getting to know each other and laying the foundation for an ongoing business and personal relationship.  Linkedin serves other purposes, but consider using it to ensure, as the book says, to never eat alone. 

By: Francisco Ramos Jr

Loving Networking

In their recent article in the Harvard Business Review titled "Learn to Love Networking," Tiziana Casciaro, Francesca Gino and Maryam Kouchaki state that networking is a necessity.  They cite research where networking not only leads to more business opportunities, it also improves the quality of one's work and job satisfaction.  To change one's attitude toward networking, the authors recommend that we (1) shift our focus from it being a chore to it being an opprotunity for learning and discovery; (2) identify common interests with those we meet, and work on common tasks with them through organizations; (3)  think about what you have to offer to others, including your gratitude; and (4) and find a higher purposes, whether it's supporting your firm or helping your clients.  By changing one's attitude toward networking, one can find it not only palatable, but truly enjoyable. 

By: Francisco Ramos Jr

Evidence of Lack of Insurance Irrelevant

Evidence of Lack of Insurance Irrelevant and Inadmissible in Negligent Hiring Claim

In Perry v. Asphalt & Concrete Services., Inc., No. 27, the Court of Appeals of Maryland was asked to determine whether evidence of insurance (or lack thereof) is admissible to establish a negligent hiring claim. The Court held that evidence of lack of insurance coverage was irrelevant and inadmissible in a negligent hiring claim where that evidence did not establish the proximate cause of the complaining party’s injuries. The Court therefore concluded that the trial court erred in admitting such evidence because it prejudiced the jury’s verdict.

On April 28, 2009, Moran Perry (“Perry”) was struck by a dump truck while crossing an intersection in Frederick, Maryland. The dump truck was driven by William Johnson, II (“Johnson”), and owned by Higher Power Trucking, LLC (“Higher Power”). Asphalt & Concrete Services, Inc. (“ACS”) had hired Higher Power to haul asphalt and stone to a church where ACS was paving a children’s play area. Perry sustained head trauma and rib fractures as a result of the accident. An investigation after the accident revealed that neither Johnson nor Higher Power had liability insurance covering the dump truck. The investigation also revealed that Johnson had a suspended drivers’ license and the registration on the truck had expired. The Court only considered the lack of insurance in its analysis.

In April 2011, Perry filed a complaint in the Circuit Court for Prince George’s County. Perry alleged negligence against Higher Power, Johnson, and ACS. Perry also alleged that ACS was negligent in its hiring and supervision of Higher Power. Perry later sought to dismiss Higher Power as a defendant after learning that Higher Power was simply a trade name under which Johnson was unlawfully operating a dump truck business. ACS filed a motion for summary judgment on the grounds that it did not have an employer-employee relationship with Johnson. The trial court dismissed ACS’ motion for summary judgment. Before trial, ACS filed a motion in limine seeking to exclude evidence that Johnson had a suspended drivers’ license and that the dump truck and Johnson were uninsured at the time of the accident. The trial court reserved ruling on ACS’ motion in limine.

At trial, Perry needed to establish a foundation for an employment relationship between Johnson and ACS before the Court would rule on the admissibility of the evidence of lack of insurance. Perry called Burt Maggio (“Maggio”), the president of ACS, to testify. Over ACS’s objection, Maggio read aloud a message on a fax cover sheet, in which ACS advised Higher Power that it had not yet received a certificate of liability insurance and requested that the materials be sent as soon as possible. Maggio testified that it was ACS’s policy to request that a truck operator provide a certificate of liability insurance. Maggio also testified to the nature of ACS and Higher Power’s relationship. Specifically, Maggio testified that ACS paid Higher Power hourly and that ACS did not dictate any of the specifics of Higher Power’s performance other than where to dump the materials when they arrived on the job site. Maggio also testified that ACS’s employees received a salary, health care benefits, 401(k) participation and paid holidays. Johnson did not receive any of these benefits. Based on this testimony, the trial court determined that there was enough evidence to establish a foundation as to ACS and Johnson’s employment relationship. The trial court subsequently allowed evidence of the lack of insurance to be admitted, over ACS’s objection.

At the conclusion of the case, the trial court denied Perry’s request to strike a jury instruction regarding the requirement of liability insurance. The jury subsequently returned a verdict in favor of Perry on both the negligence and negligent hiring claims. ACS appealed to the Court of Special Appeals, which reversed the judgment in favor of Perry.

The basis of ACS’s appeal was (1) that the trial court admitted Johnson’s lack of insurance in violation of Maryland Rule 5-411, which prohibits the admission of evidence of insurance to prove fault or liability, and (2) the evidence was irrelevant to Johnson’s claim of negligent hiring. Perry argued that the evidence of Johnson’s lack of insurance demonstrated that ACS violated its duty to use reasonable care in hiring Johnson. On appeal, neither party disputed that Johnson’s lack of insurance was irrelevant to the issue of negligence.

The Court of Appeals first examined Maryland Rule 5-411. Under Maryland Rule 5-411, evidence that a person was or was not insured is not admissible to demonstrate whether a person acted negligently. Such evidence may be admissible, however, for the purpose of proving agency, ownership, control, or bias of a witness. Rule 5-411 is designed to prevent undue prejudice that may result when liability insurance is admitted.

Next the Court turned to the elements of a negligent hiring claim. To support such a cause of action, the Court noted, a plaintiff must prove (1) the existence of a duty owed by a defendant to him, (2) a breach of that duty, (3) a legally cognizable causal relationship between breach of duty and the harm suffered and (4) damages. To demonstrate a causal link in the context of negligent hiring, a plaintiff must demonstrate that (1) the failure of an employer to undertake a reasonable inquiry lead to the hiring and (2) the hiring was a proximate cause of plaintiff’s injury.

Initially, the Court determined that ACS breached its duty to Perry when it hired Higher Power/Johnson, because ACS’s failure to verify that Johnson had liability insurance constituted a failure to use reasonable care. The Court ultimately found ACS’s breach of duty to be inconsequential because ACS’s failure to verify whether Johnson had liability insurance was not the proximate cause of Perry’s injuries. Rather, Perry’s injuries were proximately caused by Johnson’s negligent driving and poor driving skills.

The Court then concluded that the trial court erred in requiring Perry to establish a foundation for an employer-employee relationship as a threshold for admitting evidence of lack of insurance.

This was an error because the inquiry in the nature of ACS and Johnson’s relationship did not address the issue of proximate cause. The trial court therefore failed to consider the proper legal standard in admitting the evidence, and as such abused its discretion.

Finally, the Court considered the prejudicial effect of the wrongly admitted evidence. ACS argued that the admission of such evidence prejudiced the jury’s assessment of liability because, in violation of Maryland Rule 5-411, it suggested to the jury that ACS was the only insured defendant. Having previously found evidence of Johnson’s lack of insurance to be irrelevant and immaterial to the claim of negligent hiring, the Court determined that the admission of that evidence probably influenced the jury in its determination of liability. Because the determination of liability was a prime issue in the case and the jury was not instructed to disregard the evidence in reaching its verdict, the Court determined that there was a reasonable probability that the jury considered the irrelevant evidence in finding ACS liable for Perry’s injuries. The Court therefore affirmed the Court of Special Appeals’ decision and remanded the case for a new trial.

Moran Perry v. Asphalt & Concrete Services, Inc., No. 27, (Court of Appeals of Maryland, March 28, 2016), available at: http://www.mdcourts.gov/opinions/coa/2016/27a15.pdf.

Submitted By: Marisa A. Trasatti and Caroline E. Willsey, Semmes, Bowen & Semmes

Marketing Tips - Handwritten Notes

The best investment you can make in your associates is to buy them personalized stationary and ask them to write at least one personal note a week.  It could be to someone they met at a conference or reception.  It could be to a colleague they haven't spoken to in a while.  It could be to congratulate a friend for a new bar position or trial victory.  The idea is that handwritten notes are rarely received and when they are, they make an impact.  An e-mail is not the same.  We get too many e-mails.  Hand written notes are different.  They're personal.  They took time to compose.  They say you thought enough of the person to take out stationary to write a letter and send it to them.  If you want your associates to make peronal connections and build personal relationships, encourage them to get into the habit of writing hand written notes and provide them with the stationary to do so. 

By: Francisco Ramos Jr

Facebook for Lawyers

 I recently attended a talk by Brian Tannebaum, author of the Practice (which you should buy for your associates) who referred to Facebook as the forum for small talk for lawyers.  I have many attorney friends and their personalities came through on their posts.  For example, if you're my friend, you know I brag about my boys (too much), comment on jazz (not enough) and critique movies (usually spot on).  When you see me at an event, you feel like you already know me because we have already had the small talk online, even though we may never had an actual conversation about my interests.  Those self revelations go a long way in bringing us lawyers closer together, building relationships and having the "conversations" that we may only have a few times a year at cocktail receptiions and conferences.  As lawyers, I encourage you to reveal yourself a bit on Facebook and avoid the law firm posts about recent victories and just be the person you are.  Brian also mentioned he never "likes" law firm pages, because they're little more than firm PR, that reveals little about the individuals that form that firm.  If you're looking to monetize Facebook, appreciate it for what it is.  A place to share a little about yourself, have a conversation (always polite and respectful) and share in your friends adventures, triumphs and grief.  It's only through personal relationships that we build ties that may turn into business.  The relationship always comes first though. 

By: Francisco Ramos Jr

Fair Debt Collection Practices

Creditor Did Not Violate Fair Debt Collection Practices Act in Using a False Name

In a recent opinion, the United States District Court for the District of Columbia held that an entity that qualified as a “creditor” under the Fair Debt Collection Practices Act (“FDCPA”) did not violate the FDCPA because it used the same false name in all interactions with the plaintiff.

Plaintiff, Paul A. Mahon, alleged that he incurred a debt of $1,320.00 owed to a company named Certified Anesthesia Services as a result of treatment he received at Sibley Memorial Hospital in Washington, D.C.  Subsequently, Certified Anesthesia Services assigned that debt to Defendant, Anesthesia Business Consultants, LLC (“ABC”).  Plaintiff’s insurer paid ABC $1,207.94.  ABC then sought payment of the outstanding amount, requesting that Plaintiff pay $112.06 with a check addressed to “Surgical and Anes Assoc.”  Plaintiff did so on May 6, 2014, and ABC deposited his check.

Approximately two (2) months later, on July 2, 2014, ABC again billed Plaintiff for $112.06.  Over the next two (2) months, ABC contacted Plaintiff regarding the alleged debt no less than four (4) separate times, despite Plaintiff’s attempts to dispute the debt.  In each interaction with Plaintiff, ABC sought payment to “Surgical and Anes Assoc.”  In October 2014, ABC sold Plaintiff’s debt to another company for debt collection purposes. 

In July 2015, Plaintiff sued ABC, setting forth causes of action for violations of the FDCPA and the District of Columbia fair debt collection statute.  ABC moved to dismiss the lawsuit, arguing that it was not a debt collector within the meaning of the FDCPA, and that Plaintiff’s debt did not arise from a consumer credit sale and therefore did not fall within the ambit of the D.C. fair debt collection statute. 

Judge Rudolph Contreras, writing for the Court, granted ABC’s motion.  The Court noted that the FDCPA applies only to “debt collectors” – a term defined under the statute to include “any person who uses . . . interstate commerce or the mails in . . . the collection of any debts” and “any person . . . who regularly . . . attempts to collect . . . debts owed or due . . . another.”  15 U.S.C. § 1692a(6).  The FDCPA, however, expressly excludes from this definition “any person collecting . . . any debt . . . asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.”  Id. at § 1692a(6)(F)(iii).  In this case, under the allegations in Plaintiff’s Complaint, ABC fell into the foregoing exclusion because Plaintiff’s debt was not in default at the time ABC obtained it.  Specifically, Plaintiff alleged that ABC obtained his debt before any payment was due.  As a result, ABC was not acting as a debt collector within the meaning of the FDCPA.

In response to this analysis, Plaintiff argued that ABC violated the FDCPA by using a false name (i.e., “Surgical and Anes Assoc.”) in attempting to collect his debt.  In this regard, the Court noted that “creditors” may be held liable under the FDCPA if, “in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting . . . such debts.”  Id. at § 1692a(6).  The Court, nevertheless, concluded that ABC did not fall within this definition.  Although ABC was a creditor collecting its own debt and used a name other than its own in the process of attempting to collect its debt, the circumstances of its collection attempt did not indicate that a third person was attempting to collect the debt.  In fact, every communication that Plaintiff received from ABC was set forth as having come from “Surgical and Anes Assoc.”  Plaintiff apparently did not ascertain ABC’s correct entity name until he filed this lawsuit.  Because ABC consistently used the name “Surgical and Anes Assoc.,” it did not indicate to Plaintiff that a person other than the owner of the debt was attempting to collect it.  As a result, the Court granted ABC’s motion to dismiss Plaintiff’s FDCPA claims.

Turning then to Plaintiff’s claims under the D.C. fair debt collection statute, the Court noted that Plaintiff’s only avenue to federal jurisdiction on these non-federal claims was through supplemental jurisdiction under 28 U.S.C. § 1367.  A District Court’s exercise of supplemental jurisdiction, however, is discretionary where “the claim raises a novel or complex issue of State law.”  Id. at § 1367(c).  In this case, the Court noted that Plaintiff’s remaining claims depended primarily on the interpretation of a term contained in the D.C. fair debt collection statute that only two (2) D.C. cases had even tangentially addressed.  Because the issue was therefore a novel question of local law, the Court declined to exercise supplemental jurisdiction.  Accordingly, the Court granted ABC’s motion to dismiss without prejudice so that Plaintiff could re-file the case in the District of Columbia Superior Court.

Paul A. Mahon v. Anesthesia Business Consultants, LLC (April 13, 2016)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv1227-29

United States District Court for the District of Columbia

Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Wrongful Termination Claim

Wrongful Termination Claim by Minister Barred by Ministerial Exception

In a recent unreported opinion, the Court of Special Appeals held that the First Amendment’s “ministerial exception” barred courts from considering the merits of a wrongful termination claim asserted against a church even though the claim was not specifically predicated on matters of religious doctrine.

Beginning in 2009, Plaintiff, Edwin R. Melhorn, was employed as a pastor at Cedar Grove United Methodist Church, a church governed by the Baltimore-Washington Conference of the United Methodist Church (collectively, “Defendants”).  On October 16, 2012, Defendants informed Plaintiff that they were terminating his employment because they had “lost faith” in his spiritual leadership.

Subsequently, Plaintiff filed a wrongful termination lawsuit against Defendants, alleging that he was discharged because he refused to commit unlawful acts in connection with the administration of a trust of which Cedar Grove was a beneficiary.  Specifically, Plaintiff averred that, on May 16, 2012, Cedar Grove was informed that it was scheduled to receive a bequest of over $1.2 million from a trust.  Under the terms of the trust, half of that amount was to be used for the operation of the church, and the other half was to be used for the upkeep of a cemetery maintained by the church.  Cedar Grove, however, had sold its cemetery.  Consequently, Plaintiff informed the church that it would be a breach of trust, fraud, and tax evasion to accept the half of the trust bequeathed for the purposes of the cemetery’s upkeep.  Despite Plaintiff’s advice, Cedar Grove instructed Plaintiff to request the full amount of the bequest.  Plaintiff refused to do so, and in August of 2012 he informed the Baltimore-Washington Conference of his concerns.  Two months later, he was informed that his employment was terminated.

Defendants moved to dismiss Plaintiff’s complaint, asserting that the First Amendment’s ministerial exception bars courts from hearing disputes over church doctrines.  In this case, Defendants argued that courts would necessarily be required to ascertain the veracity of Defendants’ statement that Plaintiff was fired because they lost faith in his spiritual leadership.  The trial court agreed and dismissed the complaint.  Plaintiff appealed.

The Court of Special Appeals affirmed.  Judge Reed, writing for the Court, explained that there are two elements that must be shown in order for the ministerial exception to apply: (1) the employee making the claim must be a minister; and (2) “the claim must be the type of claim which would substantially entangle the court in the church’s doctrinal decision-making and internal self-governance.”  In this case, it was undisputed that Plaintiff was a minister. 

As to the second element of the exception, the intermediate appellate court was persuaded that Plaintiff’s claim would involve an entanglement with Defendants’ doctrinal decision-making.  Under Maryland law, the ministerial exception is somewhat broader than the Supreme Court’s holding in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012).  Specifically, the Court of Appeals has applied the doctrine to wrongful termination claims, whereas the Supreme Court has only applied it in the context of employment discrimination claims.  In so doing, Maryland has embraced the concept that “religious organizations must be allowed to hire and fire their clergy members without government interference.”  In this case, the Court of Special Appeals believed that it would be impossible to adjudicate Plaintiff’s claims without addressing Defendants’ position that Plaintiff was fired due to Defendants’ lack of faith in his spiritual leadership.  Accordingly, the Court of Special Appeals affirmed the trial court’s decision that the ministerial exception barred Plaintiff’s lawsuit.

The Court also rejected Plaintiff’s argument that he should be permitted to conduct discovery prior to any ruling on Defendants’ motion to dismiss.  In contrast to cases from other jurisdictions that had held discovery was permissible under similar circumstances, in this case, the question of Plaintiff’s termination would necessarily involve inquiry into religious matters.  Because, on its face, Plaintiff’s claim involved such matters, no discovery was warranted. 

Edwin R. Melhorn v. Baltimore Washington Conference of the United

Methodist Church, et al. (March 7, 2016)

http://www.courts.state.md.us/appellate/unreportedopinions/2016/2065s14.pdf

Court of Special Appeals of Maryland

Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Supreme Court Realty Trusts

Supreme Court: Realty Trusts Have Citizenship of Their Shareholders for Purposes of Diversity Jurisdiction

In a recent opinion, the Supreme Court held that the citizenship of a realty trust, a business entity created by Maryland law, is controlled by the citizenship of the trust’s shareholders for purposes of diversity jurisdiction.

Petitioner, Americold Realty Trust, is—as its name would suggest—a realty trust organized under the laws of Maryland.  In 1991, a fire occurred at a warehouse owned by Americold’s predecessors in interest which caused the loss of food stored at the warehouse.  Respondents, “a group of corporations whose food perished in” the fire, filed a lawsuit in Kansas state court seeking to recover their losses.  Americold removed the case to federal district court in Kansas on the basis of diversity jurisdiction, and eventually obtained a verdict in its favor.  Respondents appealed.

On appeal, the Tenth Circuit perceived an issue that the parties had not raised, namely, whether the District Court’s exercise of jurisdiction was appropriate.  In particular, the Tenth Circuit questioned whether the parties had established the basis for diversity jurisdiction.  It ultimately concluded that, because real estate trusts are not corporations, their citizenship is controlled by the citizenship of their members.  Because there was no record of the citizenship of Americold’s shareholders, the Tenth Circuit held that the parties had failed to demonstrate diversity of citizenship and it reversed the judgment of the District Court.

The Supreme Court affirmed.  Justice Sotomayor, writing for the Court explained that the rule regarding the citizenship of corporations originally developed as an exception to the general rule that the citizenship of a business organization was determined by the citizenship of its members.  Congress later codified the exception for corporations at 28 U.S.C. § 1332(c), but it did not change the general rule for other business entities.  As a result, because Americold is not a corporation, its citizenship is controlled by the citizenship of its members.

The Court noted, however, that it had never defined the term “members” in the context of a realty trust.  Consequently, it looked to Maryland law, which defines a realty trust as an “unincorporated business trust or association” which holds and manages property “for the benefit and profit of any person who may become a shareholder.”  The Court was persuaded that the shareholders of a realty trust held the same types of powers and interests as do shareholders in joint-stock companies and partners in partnerships.  Drawing, therefore, from precedent establishing the definition of “member” for those types of organizations, the Court concluded “for purposes of diversity jurisdiction, Americold’s members include its shareholders.” 

The Court distinguished the authority which Americold argued compelled the contrary conclusion.  It explained that, traditionally, a trust was not a legal entity, but rather a fiduciary relationship between individuals. Consequently, suits against trusts were brought against the trustees in their own name, and it was therefore simple to determine the citizenship of the “trust.”  In recent years, however, states have begun to apply the term “trust” to “a variety of unincorporated entities that have little in common with” the traditional notion of a trust.  Americold was itself an example of such a recent creation, as the Maryland real estate trust is a legal entity that can sue or be sued.  As a result, the Court declined to apply rules established in another era in the context of the modern day conception of a trust.

Finally, the Court declined an amicus’ invitation to abolish the distinction between corporations and other business entities for the purposes of diversity jurisdiction.  Because Congress has expressly codified that distinction, the Court stated that “it is up to Congress if it wishes to incorporate other entities into 28 U.S.C. § 1332(c)’s special jurisdictional rule.”

Americold Realty Trust v. Conagra Foods, Inc. (March 7, 2016)

http://www.supremecourt.gov/opinions/15pdf/14-1382_d18f.pdf

Supreme Court of the United States

Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Energizer Battery Class Action

Poertner v. Gillette involved the settlement of consumer fraud claims over Duracell batteries where class counsel received almost $5.7 million while their millions of class member clients received only a fraction of that amount, less than $345,000 combined. Over 94% of the cash recovery went to class counsel. Nevertheless, the U.S. Eleventh Circuit held that the district court did not abuse its discretion in approving the settlement because the settlement’s value included other “benefits.” These “benefits” included (a) a cy presdistribution consisting of a charitable donation of batteries that is already part of the defendant’s regular marketing program and (b) injunctive relief that governed a line of batteries the defendant had already discontinued.

 

Ted Frank, founder of the Center for Class Action Fairness, did not like the settlement when it was first announced, so he did something about it. He bought a pack of batteries included within the class definition and objected to the settlement. He brought his fight to the Eleventh Circuit and filed a petition for certiorari with the U.S. Supreme Court, where it has been distributed for conference on March 18, 2016.

 

Frank frames the issue this way:

 

The basic problem is this: While class counsel and defendants have an incentive to bargain effectively over the size of a settlement, similar incentives do not govern their critical decisions about how to divvy it up – including the portion allocated to counsel’s own fees. The defendant cares only about the bottom line, and will take any deal that drives it down. Meanwhile, class counsel have an obvious incentive to seek the largest possible portion for themselves, and will accept bargains that are worse for the class if their share is sufficiently increased.

 

According to Frank’s Supreme Court petition, the settlement at issue included (1) a claims-made process that valued the settlement at $50 million but realized less than one percent participation due to its publication-only notice and minimal value to class members; (2) an essentially meaningless injunction that applied only to a category of batteries the defendant had already stopped selling; (3) a cy pres distribution allowing the defendant to donate batteries at retail value over five years to a charity it already supports, a practice it advertises aggressively; and (4) clear-sailing and kicker clauses designed to grease the skids of the settlement.

 

There are conflicts among the Courts of Appeals on approval of class action settlement and on cy pres distributions. Frank is seeking Supreme Court review to improve the outcomes of class action settlement for what he calls the real parties in interest, i.e., the absent class members whose claims are being settled away.

 

Submitted by John W. Sinnott, Irwin Fritchie Urquhart & Moore LLC, New Orleans, Louisiana (Twitter: @JohnWSinnott)

Asbestos Claim Transparency

Furthering Asbestos Claim Transparency (FACT) Act Goes to Hearing Before Senate Judiciary Committee
On January 8, 2016 the U.S. House of Representatives passed the Fairness in Class Action Litigation Act (H.R. 1927), which includes the Furthering Asbestos Claims Transparency (FACT) Act. The FACT Act is aimed at cutting down fraud in asbestos claims. Specifically, the Act would amend federal bankruptcy law to require asbestos bankruptcy trusts to publish quarterly reports including the names, partial social security numbers, exposure history, and basis for any payments made from the trust to asbestos claimants. The Act would also allow defendant corporations to submit written requests for information to asbestos bankruptcy trusts.

More information on H.R. 1927, please see http://www.semmes.com/publications/cases/2016/01/fact-act-2015.asp

A related version of the Furthering Asbestos Claims Transparency (FACT) Act, S. 357, is currently pending in the Senate. On February 3, 2016, the Senate Judiciary Committee held a hearing on this bill. Senator Chuck Grassley (R – IA), Chairman of the Senate Judiciary Committee presided over the hearing. Senator Grassley introduced the bill by explaining that “[asbestos] trusts have assets in excess of $18 billion dollars, but are without any meaningful independent oversight.” Senator Grassley went on to encourage support for the bill, emphasizing that “if funds in the trusts are depleted with fraudulent claims, it is future victims who will pay the price, as compensation for illnesses will be reduced.”

Senator Patrick Leahy (D – VT) followed Senator Grassley and voiced his “serious concerns” for the bill. Specifically, Senator Leahy expressed concerns that a provision in the bill requiring asbestos trusts to file public reports detailing personal information about victims who receive compensation from the trust would “needlessly violate the privacy of [those] victims while requiring no transparency on the part of the [asbestos-producing] companies.” Senator Leahy also questioned the existence of fraud within the asbestos trust system, arguing that most asbestos victims are exposed in multiple ways by multiple companies.

The Judiciary Committee heard testimony from five (5) witnesses – the Honorable Peggy L. Ableman, Senior Counsel, McCarter & English LLP; Elihu Inselbuch, Member, Caplin & Drysdale, Chartered; Mark Behrens, Esquire, Shook, Hardy & Bacon LLP; Ms. Susan Vento (widow of Congressman Bruce Vento); the Honorable Robert M. McKenna, , Orrick, Herrington & Sutcliffe.

Judge Ableman is a retired judge who served in the Delaware State courts for thirty (30) years and spent considerable time in charge of the asbestos docket. In her testimony, Judge Ableman recalled a case from her time on the bench in which an asbestos plaintiff allowed the defendant company, Foster Wheeler (a boilermaker) to believe that it had sole, or at least predominant responsibility for plaintiff’s exposure – completely failing to identify claims of asbestos exposure against other companies until the week before trial. Judge Ableman found this to have been “severely prejudicial” to the defendant, and observed that “[w]hen twenty manufacturers of asbestos are removed from the equation, an honest and fair allocation of fault simply cannot occur.” Each of these other defendants had settled their cases with plaintiff based upon “insufficient data and an incomplete picture of the plaintiff’s total exposure history.”

Mr. Inselbuch has spent the past thirty (30) years of his career representing victims’ rights in asbestos bankruptcy proceedings. Mr. Inselbuch decried the FACT Act as “the latest, but not the first, attempt by asbestos defendants to reduce, minimize and ultimately extinguish their liability to their victims in the tort system.” Mr. Inselbuch provided a detailed history of the development and function of the asbestos trust system to support his position that the FACT Act “is predicated on a fundamental misunderstanding of why asbestos trusts were created, how they work, and the false belief that there is significant fraud in the trust system.”

Mr. Behrens co-chairs the Public Policy Group of Shook, Hardy & Bacon LLP. In his capacity as co-chair, Mr. Behrens spends a substantial amount of time analyzing trends in asbestos litigation. Mr. Behrens’ testimony primarily reflected on written testimony that he had previously provided to a Task Force on Asbestos Litigation and Bankruptcy Trusts of the American Bar Association’s Tort Trial and Insurance Practice Section in 2013. Mr. Behrens’ research led him to conclude that “inconsistent claiming by plaintiffs appear[s] to be the norm” in the asbestos trust system. Mr. Behrens attributed these problems to “a disconnect between the trust and tort systems and lack of transparency with respect to asbestos trust claims,” all of which he testified leads to “suppression of evidence in asbestos tort cases, prevents juries from reaching fully informed decisions as to fault, and promotes gamesmanship.”

Ms. Vento is the widow of Congressman Bruce Vento, who died of mesothelioma. Ms. Vento’s testimony served to provide the perspective of asbestos victims and their families. Ms. Vento paid particular attention to the fact that asbestos victims were largely excluded from testifying before the House of Representatives. Ms. Vento also testified that reports of fraud in the asbestos trust system are exaggerated and are not worth violating the privacy of beneficiaries of the asbestos trusts.

Finally, Mr. McKenna served as the Attorney General of Washington State from 2005 to 2013. In that capacity, Mr. McKenna was heavily involved in investigating online fraud. As a result of this experience, Mr. McKenna came to the conclusion that the FACT Act “is common sense transparency legislation that will discourage fraud and abuse in the asbestos compensation system while protecting asbestos trust claimants’ sensitive personal information and confidential medical records from disclosure.”

The FACT Act will now go through Judiciary Committee consideration and mark-up before possible introduction onto the floor of the Senate.

Submitted By: Marisa A. Trasatti and Caroline E. Willsey, Semmes, Bowen & Semmes

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