Corporations Must Face Financial Distress Before Being Allowed To Shelter Their Assets Through Bankruptcy
Barretts Minerals Inc., a bankrupt talc mining and processing company was allowed to be liquidated in bankruptcy to establish a settlement fund
Monday, March 25, 2024 - The legal community and more than 50,000 talcum powder cancer plaintiffs are eagerly waiting to see if Johnson & Johnson files for bankruptcy of its LTL management subsidiary, this time in the state of Texas which is notorious for its lackadaisical approach to protecting consumer safety. Many believe that allowing Johnson & Johnson, a company with about $400 billion in assets to file for financial protection is an abuse of the bankruptcy system which was designed to protect companies that could not pay their debts or other financial obligations. Still others including a prominent New Jersey bankruptcy court judge think that the bankruptcy system offers plaintiffs with cancer whose life expectancy is not long, the best chance at a quick and equitable settlement rather than wait decades for their trial to come to court. Legal experts and advocates against Johnson & Johnson's strategy to bankrupt its talc subsidiary have voiced strong opposition, arguing that this maneuver seeks to unfairly limit the legal recourse available to victims of alleged talc-related harms. Attorney Andy Birchfield, leading the mass torts section at the Beasley Allen Law Firm, has criticized Johnson & Johnson's approach, especially its use of the "Texas Two-Step" bankruptcy strategy. Birchfield argues that this tactic serves to evade accountability and offers inadequate compensation to the victims of ovarian cancer and mesothelioma, diseases linked to asbestos-contaminated talc products. He emphasizes that the strategy not only undermines justice for the victims but also disadvantages the company's shareholders by engaging in perceived weaknesses within the multidistrict litigation system.
The U.S. 3rd Circuit Court of Appeals has played a significant role in challenging Johnson & Johnson's bankruptcy strategy. The court dismissed a Chapter 11 petition filed by a J&J subsidiary, effectively allowing litigation over allegedly harmful talc products to proceed. This decision was hailed as a major repudiation of the emerging legal tactic known as the "Texas Two-Step," which companies have used to try to avoid potentially massive lawsuit exposures. The court found that Johnson & Johnson improperly placed its subsidiary into bankruptcy without financial distress, thus reviving more than 38,000 ovarian cancer lawsuits from plaintiffs alleging that the company's baby powder and other talc products caused cancer. These legal battles underscore the tension between corporate strategies aimed at managing financial liabilities and the pursuit of justice by individuals claiming to have been harmed by talc products. The opposition from legal experts like Birchfield, coupled with the decisive actions of the appellate court, signals a critical view of such bankruptcy strategies, advocating for a system that ensures companies remain accountable for the safety of their products and the well-being of consumers. In contrast to Johnson & Johnson's financial situation, Barretts Minerals Inc., one bankrupt talc mining and processing company, experienced significant financial difficulties that prompted it to sell its assets, including a talc mine. Although commercially significant, talc mining has been embroiled in controversy because it is thought to have contaminated asbestos. One serious health problem that asbestos is known to cause is mesothelioma, a form of cancer. Many lawsuits against talc production and distribution businesses have been filed as a result of the asbestos found in talc products. The recent approval by a bankruptcy judge of Barretts Minerals Inc.'s sale of its talc mine and other assets represents a turning point in the company, legal, and environmental domains.
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