Jogi ismeretek | Polgári jog » Judge Peggy L. Ableman - Responses to Written Question of Senator Charles Grassley, The Need for Transparency in the Asbestos Trust

Source: http://www.doksinet Responses to Written Questions of Senator Charles Grassley "The Need for Transparency in the Asbestos Trust" U.S Senate Committee on the Judiciary By: Judge Peggy L. Ableman Question 1: Please describe the process for filing and obtaining compensation from a trust, versus a traditional tort in state court. What must be provide in the trust system, etc? How quickly do trusts process these claims? Response to Ouestion 1: The process for obtaining compensation from a bankruptcy trust is straightforward and effortless. ln order to qualify for a settlement payment from a bankruptcy trust most Trust Distribution Procedures ("TDPs") require a claimant to establish evidence of (1) an asbestos related medical condition; and (2) history of exposure to the debtors asbestos-containing products. Exposure requirements can be met simply by submitting an affidavit, deposition testimony, or "other credible evidence" demonstrating exposure to

the asbestos product during the required time period and for the minimum duration of tim e. These requirements are similar to what is required for a tort case to proceed but they can be legitimately and easily circumvented if the claimants history coincides with an approved site or occupation list. When a claim is based on an asbestos claimant having worked in a listed occupation within a listed industry, or at an approvedjob site during the proper time period, no proof of actual exposure is necessary. The claimant does not need to verify his occupation nor even identify how he was exposed. Unlike what is required in the tort case, exposure to the product is presumed. Similarly, no exposure affidavit is needed if a claimant was employed at the job site listed on the trust s approved site list. And, while the claim form must be signed by the claimant, or his lawyer, or a fiduciary ofthe estate if the claimant is deceased, the forms are not affidavits and do not meet federal or state

evidentiary oath requirements. Some even allow an individual to sign off "upon information and belief." Furthermore, asbestos trusts do not take into consideration exposures to any other asbestos-containing products when paying a claimant, nor is the information submitted in a claim form to one trust shared across other trusts. Exposure to products of solvent companies are also not considered. Trusts process these claims immediately with payment made within days. For example, when the Manville Trust was just first established in November of 1988, there existed a hefty backlog of claims. As a result, the trust contained a provision for "Exigent Health and Extreme Hardship Claims" that enabled a dying claimant to move up in the payment order. The General Counsel to the Claims Resolute Management Corporation, a 100% subsidiary ofthe Manville Trust, recently testified: " . now that claims are resolved so quickly, theres really not a purpose to this anymore. And I

dont think anybody files exigent health or hardship applications 1 MEI 22056243v. I Source: http://www.doksinet 1 anymore." Simply stated, if a claimant meets a trusts rather lax criteria for payment, the claimant will promptly receive an offer of settlement and payment upon acceptance within a few days. ln a tort case, the rules of procedure, the process of discovery, and the rules of evidence place a premium on fairness and quality over efficiency. Exposure is never presumed and identification of specific products of a defendant is required in contrast to many bankruptcy trusts that do not even require proof of exposure to a particular product. And, most importantly, none ofthe trusts require the standard of proofthat is used by a court ina civil trial. Ouestion 2: ln your opinion, is the level of preparation and casework involved in filing a trust claim tantamount to the work (and risk) involved in traditional tort litigation? Asbestos trusts are designed to settle claims

quickly and Re ponse to Ouestion 2: without any effort expended to verify the legitimacy or validity of a claim. The Wall Street Journal reported, "[u]nlike court, where plaintiffs can be cross-examined and evidence scrutinized by a judge, trusts generally require "victims or their attorneys to supply basic medical reco.rds, work bistories and sign forms declaring their truthfulness The fayout is far quicker than a court proceeding and the process is less expensive for attorneys." Tf a claimant me ts a trusts criteria for payment - criteria which are less rigorous than the tort system- the claimant will receive payment3 . SUNY Buffalo Law Professor Todd Brown has noted that "it is possible that some claims may be approved even ifthe evidence supporting exposure may not survive 4 early dispositive motions in the relevant state court. Indeed, the trial lawyers own advertisements for seeking additional clients toutjust how simple the trust claiming process can be. One

such ad contains the following assurance: A traditional mesothelioma lawsuit takes much longer than an asbestos bankruptcy trust claim to settle. Unlike filing a lawsuit, a bankruptcy claim filed by an experienced asbestos attorney is a simpler process that takes much less time and is less stressful. You 5 do not have to give testimony, give a deposition or go on trial." 1 Cummings v. General ~lectric Co, No 13-CI-006374 (Jeff Cir Court, Kentucky) Deposition of Jared Garlick, Dec. 14, 2015, Transcript at pp 35-36 2 Dionne Searcey & Rob Barry, As Asbeslos Claim Rise, o Do Worries Ahout Fraud Wall Street Journal, March 11, 2013 at Al available at http://www.ws jcom/arti les SB100014241278873238643045783 8611662911912 3 U.S Govt Accountability Office, GAO-11-819, Asbestos 4 S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbe tos C mpensation, 23 Widener L.J 299,317 (2013) 5 Law Offices, Clapper, Patti, Schweizer & Mason, Internet Advertisement 2 MEI

22056243v.1 Source: http://www.doksinet Attached as Exhibit A to this response are samples of ads that solicit clients by luring 6 them with similar promises of fast and easy compensation. ln essence, the trusts provide an almost automatic guarantee of settlements for asbestos claimants in contrast to the rigorous and exacting proof required in litigation. The payout is also promptly tendered by the trusts whereas litigation is generally a far more protracted process. Then too, the risk associated with a jury trial does not exist in the trust claiming system. Along with the potential for significant recovery as a result of a trial, there is always the possibility of a defense verdict. 6 lnjury Compensation: The Role and Administration ofAsbestos Trust 21 (September 2011); Adrienna Barmlett Kvello, The Best ofTimes and the Worst ofTimes: How Borg. Warner and Bankruptcy Trusts Are Changing Asbestos Settlements in Texas, 40 The Advoc. (Tex) 80, 80 (2007) ("it is much easier to

collect against a bankruptcy trust than a solvent defendant.") 3 MEI 22056243v.l Source: http://www.doksinet EXHIBIT A .· • J • Source: http://www.doksinet Page 1 of 1 File a Simple Claim vs. a Lawsuit - Mesothliom a Claims Center Put us to work now. Call 1-866-607-4115 ATTORf(l:V AOVl;RTISING How IIWorks Access Funds Overvlew Why Take Aclion What to Expect Submit Your Claim Today Flrst Name Last Name Email Access Trust Funds Phone Diagnosis $30 Billion Set Aside for Victlms of Mescithelloma Companles who had or an11clpated clalms brought againSt u,em by 11lctlms of mesothelioma put aslde fun<l s to protact thelr flnanclal stabílity. AB e rasu lt, slgnlllcanl pools of money were establlshed íor vlctlms, allowlng them access to a portion of those funds as cornpensatlon. Accesslng trusls ·1s done by fillng a claim. F.asier Tilan It May Seem Clalm vs. Lawsult Flllng an asbestos clalm Is similar to m1n9 sn lnsurnnce clalm and less lika a lawsult,

Typlcally. a tnal and co. urt app,iarances ere nót part of lhe daíms procass, Because the trusls do nol requlre you to provlde llve testlmony, !here Is no reason tor you !o lravel to a court or evon 10 our offices. Ali paperworl< can be completed ln ycur own home, through us travellng te you and then con11nuif19 resea·rch on our own to help bulid your case. Wa stlll make house calls Your lndlvldual situation may meri! an actual lawsult. However, lt doesnt hava to be thai compllcated. Trusts hava been set up to beneflt victims of mesothelloma ln such a way Ihat lawsuits and court appearances arent needed , Contact us today and youII see how easy it can be te get the compensatlon ycu deserve. Focused On Your Needs WeII help you understand your clalm and gulde you lhrough the filing process. By fillng your claim through the Mesothelioma Claim Center, you can quickly and easily get the money you deserve. Weve Been There Far 30 Years, weve helped viclims of mesothelloma gain equal

representatlon and maximum clalm settlements. Weve helped over 2,000 people get the money lhey deserve Why Mesothelioma Clalms Center? Put us to work on your clalm now. We understand the process for evaluating your clalm and maklng sure you get the appropriete share of $30 bllllon ín asbestos trusts. Thats money set aaide forvlctlms cf mesolhelloma lika you, regardtess cf whether your employer was lhe govemment, Is now bankrupt, or even still in buslness. Why nol get started now? When you fill out the fonn above, or call, youII receive a FREE case avaluatlon from an exper1enced paralegal who wlll start processlng your fonn within 24 hours. lf we thlnk that we can move forward wilh your clalm we will begin lmmediately - at no cost to ycu. Tenn• of Use and Pri11ecy Poicy t Clsclelmer I Copyright;, 2011 Mesothelloma Clalms c,nter http://mesotheliomaclaimscenter.info/access-mesothelioma~trusts I Attomey Adver1/sln9. 3/9/2012 Source: http://www.doksinet Page 1 of 1 Work

With Us and a Simple Process - Mesotheli oma Claims Center Put us to work now. Call 1-866-607-4115 ATTORHEY ADIERTISINO Overvlew How itWorks Access Funds Why Take Actlon What to Expect Submlt Your Cla1m Today FlrstNama Last Nama Email Howl tWor ks Phone Oiagnosls Put Our Experlence to Work for You. For 30 years, weve helped vlctims of mesothelloma get compensallon for medlcal costs, lost wages and suffertng. Filing a Claim Starting the claims process wlth Mesothelioma Clalm Center is easy. FIII out the form to tho rtghl or call to speuk wlth someone dlrectly • Upon rece/vfng your requost, we will coniact you promptly to gather mora lnformatlon on your polentlal eleim How Mesothellom a Claims Center can Help Mlnlmlze your paperwork, expense, sirass, long waits and travel Ume SlmpUfY tómpllcated legal procedures Glve you equal access to the.jusUce system, regardless of lneome or ethnlclly • Maxlmlze your mesotheliome or asbastos-related clalm Why Mesothelioma Clalms

Center? Put us to work on your claim now. We understand lhe process for evalueting your eleim and maklng sure you get tha appropriate share of $30 bllllon ln asb11tos trusts. Thats money set aslde for vlctims of mesothelloma llke you, regardless of whether your employer was the govemmenl, Is now bankrupt, or even stlll ln buslness. Why nol get started now7 When you fill out lhe form above, or call, youII recelve a FREE case evaluatlon from en oxpeilenced paraJegal who wlll start pmcassing your farm wilhin 24 hours. 11we think Oíai we can mova forward with your Clalm wa wlll oogln lm medlately - at no cost to you. Torms of Uao and Prlvacy Policy I Dlsclalmer I Easier Than lt May Seem Your lndlvldual sltuatlon may merit an actual lawsull. However, lt doesnt have lo be thai aompllcoted. Trusts have 6een se( up to benefit vlcilms of mesolhelioma ln suoh a way Ihat fawsuils and oourt appearances arenl neede[ Contact us today and yoult siiiiiiöw easy lt ean be to get the

compensatlon you deoerve. Copyright O 2011 Meaolhellomo Clalms Center I Attomey Advertls111g. http://mesothel iomaclaim scenter.in fo/workin g-with-us -is-easy 3/9/2012 Source: http://www.doksinet Page2 of2 Mesothel ioma Trust Funds Nome Phone Address Dlagnosls City Select. Email Zlp Comments lii=Wil Search our S/te For More lnformatlon iiti;M• ► Asbestos Cance r 1 Asbestos Lung Cancer 1 Asbestos-Related Dlseases 1 Asbestos & Non-Small Ce/1 Lung Cancer 1 Asbestos & Adenocarcinoma • Asbestos & Non-Sma/1 Ce/1 Carcinoma ► Asbestos Exposure • Asbestos • Types of Asbestos ► Mesothellom a Cancer 1 Mesothe/loma Symptoms 1 Malignant Mesothelloma 1 Mesothe/ioma Prognosls 1 Mesothe/loma Surviva/ Rate 1 Mesothe/loma Life Expectancy ► Mesothellom a Types • Pleural Mesothelloma 1 Peritoneal Mesothelloma 1 Perlcardial Mesothelioma • Weil Differentlated Paplllary Mesothelloma ► 1 1 1 ► 1 ► -----~----·--. - ·- -Mesothellom a Treatme nt

Mesothelioma Doctors Mesothelioma Clinical Trlals Dlet for Mesothelioma Patients Financial Assistance for Patlents Mesothelioma Trust Funds many The enorm9us numbw- of asbestos-reJated lawsulls that hava boon brought sfnce the mld-1990s has drlvon of the companles responslble fore,posing workers to toxlc levels of asboslos to seek bankrupIcy proleotion. /s a condldon of reorganlzallon and reomergence from bankruplcy, the ccurts heve required meny of thosc were companles to sot up IN!it funds charged wllh providlng compensallon 10 workers and olhar lndlvlduals who lnjured through asbestos exposure. Asbestos and Mesothelioma Is For meny oen~los, lhe flbrous mlneral osbestos hos been prizod lor lts urique sel or properUes. Asbeslos llame proof and heat resls!ant; lt Is a poor conductor ol electrtcal current and wlthsrands most lorms of charnlcal corroslon. Moreovor, asbes los Is lightwelght bul extrematv strong, and very lne•penslv& 10 produoa advent Untll the 17ih ~llfliury,

asbeslos was more or less a novelty llem, used 10 weava Pumeproof cloth. Wlth tho ol tha lndustrlal Revolutlon, howevor, !hete oome a need 10 find insulallng rnatertals tor the lmmense, t,eatgeneraUrig englnes, boilers, turblnes and olhor typas of hoovy maGhlnory thai drove the fectofles and the mllls. Asbeslos seemed to be the perfect soludon. Slnce lho 1930s. medloal scton~sts hava linked occupe1fonel esbestos exposure to the dovolopment of a numbcr of dlseases lncluding mesolhelloma, a cancer ihat targets IM membranes llnlng lho preurol. perllonoal and pencardlal oavities. When asbGstos degradee, lt reverts back to lls origlnal, flbrous composltlon, As asbeslos broaks down, it creates cfouds of dusl ladan wilh thousencls or noodle-sharp asbestus mlcrofilaments. When Ihat ln<llvlduals inMle lhls dust, the mlcrofilaments lnRamo lhclr parenchymal tissuas tead1ng to chronlo chariges are precursors to meoolllelloma and olher asbesloe-releted dlsaases. Asbestos Bankruptcy Trusts Theto

Is amplo avldence thai lho companlea Ihat used asbestos ln commerolal and lndJslriat appJlc;aUons ware ln woll awaro ollts dangers as early as U,e 1940s. Neverthelesa, they oonfinuOd 10 put employoes ami oonsumore hamls way, As mora and more evldence emerged bolh ar lhe toxlo ef!CC1s ol asbestos and lhe masslve fillng 1nr0rm0Uon covor-up lhese compenlos enga9od ln, lndlvlduafs who wefe lnjured by asbesto,; e~posure began lltigation agelnst these companles. Asbestos ll~gnllon created such huga Rnenclal pre.ssures on these companlos U10t ln 1984, Ihe Unitod S!alos Congress passed an smendmant 10 lhGU.S Bllnkruptoy·Code provldlng spéClol proieotion to osbeatos buta companles. The companlos weré allowed to flle far Chapler 11 bankruplcy whleh Is not o llqutdadon or 11s•ols reorganlzatlon or debts. As part or 010 reorganlzaUon prooess, 111e bankruptoy court mandated Ihat theso at companies set up trust lunds to compensaté pasi end future asbestos vloUms. Each company must allocate

lent 50 ~rcent of I15 posl•bankruptoy equlty to 1118 clalmam fUnd. ~ 2010, ovcr 71 compentes had oroaied aabestos b-Jnkruptcy lrusts, respanslble tor paylng out bllllons ol Mesothelloma Trust Funds Mesothellom a Veterans Mesothelioma Lawsuit Versus Mesothelloma Bankruptcy Trust Clalm An asbestos bankruptcy trusl dalm is not e lawsult, although lho produOl ldentlflcatton process far trusts cfalma and lawuuJts may be the sama. Clalmants ere ,equired 10 documeni exposure to lhe producll: manum,;turad, dlstrlbuted or deployed by the oompany rapresented by the trusL Sucn doQ!Jmantadon oon tnclude amployment records, invoices and affldavlls from coworkers. http://ww w.asbesto scancerco /mesothel ioma-trus t-fundsph p 3/9/2012 Source: http://www.doksinet Page 1 of 1 Asbestos Trust CONTACTUS ABOUTOUR FIRM 1 MESOTHELIOMA 1 LOCATIONS SERVEO ASBESTOS 1 FOR VETERANS 1 TREATMENTS I BLOG YOUR LEGAL RIGHTS )) SETTLEMENTS )) BANKRUPTCY TRUSTS >> SIGN UP FOR FREE

CONSULTATION )) 1-877-801-4647 Legal Process Mesothalloma Lawsults Statuta Of Llmltatlons Bankruptcy Truata Homa> ME!llolhalloma Law> Bankruplcy Trusls> Fillng for a Clalm Fillng for an Asbestos Bankruptcy Trust Clalm - - ------- --- ------ --- What Is A Bankruptcy Trust Fillng For A Clalm HOW MAKING AN ASBESTOS BANKRUPTCY CLAIM IS DIFFERENT THAN PROSECUTING A LAWSUIT W.R Grace Proposed Plan a •fllin a lawsu A lradlUonal meso!haíloma lawault takes niuch Ion er lhan an oabestos bonkrull trust clalm 10 seUle. Unfike , You do nol hava o Clalm filod by an exp eri enced esboslos ouomo is o s,m Ier process Ihat to es IBGs I ma an la muc Jess slressful tes mony. g ve a epos• on or go lO I e Graca Raorganlzatlon Plan Approved Llbby Madical Plan Truat Bankruptcy Trusts Llst Covaring Medlc:al BIiis 10. Seems slmple, bul Ui s Is lnsleod, you talk wlth ono or our altllmoy,;, who can lhen dalennlne whlcn o,bo•lO• producls you wore expoced produm you woro oxposed 10

ona of the mooI lmpommt reasons lo hale one or our attomeys reprooem ond gulde YoU, Ootormlnlng tho s p,ocoss ror over !hree det11de. and whlch companles ara responolbla toka, an upen. We hava been excluslvely helplng llflenl• wllh Ih and are very experleneed ln ldenll/ylng whlt11 benkrupt eompanle,; lo ijie clailT8 agalnst. trusts, and ensurlng final Our mesothalloma attorneys ara unlquoly experlenced ln provlng your clalm, negotlallng wllh asbaato& settlementa and fair payments. degree of your lllness and proof of Whlle oome trusls clalms ere settled qulckly, othera cen take a year or longer lo reoolve. Dependlng on lhe exposure, tlte emounls from bankruptcy lrust cialme can ba quite slgnlncanl. QUALIFICATIONS FOR FILING AN ASBESTOS BANKRUPTCY TRUST CLAIM lf you ara eliglble: Thera ara three main quallHcaUons for filing a valld bankruptcy lrust eleim whlch our ellornaye wlll determlne ellgiblo to ma a bankruplcy lrust 1. S!ulute or Umitallons - even lf lho Ume hos paas•d for

crlnglng 11 m890lhellomo lowsul~ you mey aUII be 10 ma clelm. Tho &latule ol llmlallons vories, so conlacl our allomoys who can qulckly deIennlnu lf you quonfy spcskl"!). lhe more severe Generolly dlsgnoB1s), your showlng 2. Legttlmocy and degree ol your lllnErSs (proved lhrough medical records your íllne,is Is, wilh mesolhollO(Tlo being lho mosi seveie, the hlgher lhe setUemanl arnounl of·your dslm. lhe 1ruoi, by represened 3. Proor ol a•posure 10 lheasbealos produds p10·duced, manuíooliJred or usad by 1he company the banknJpt com~ony•• Our asbestos attomeys wlll gather tlte evldence needad to meet lhese requlrements. lf you workod wllh or around as • m lo ent ruca s, asbesto• contalnln roducS dU!in lhe perlod ol Urne when asbcslos WIIB ln use, we can el dccuments such frusts. a , a ts, co-wo ers as meny, nvo c:as an 01 enelsied docvmenls Ihat meel he cnlaria rnqulred y the whltl1 trusts you muy Wyou have been dlagnosed wllh mesolhelloma or an asbasos relaled

disaase, call us today and we can help delennlne be ellglble to flle a eleim egelnst end collecl money [rom. 1-877-801-4647 C20t2 by Clappor, Patti, Schwolzer & Mason I Ali righls reserved I Olsclalmor I Prlvacy Pollcy Tha Law Offlces of Clapper, Palfl, Schwaiier & Maaon Fax: (415) 331-6387 2330 Marlnohlp Way, Suite 140, Sausalilo, CA 949661 Toll•frea number. 1-877-801-4647 I Phono: (415) 332-4262 j WebSlght Design, Inc. http://www.mesotheliorna-attomeycom/rnesothelioma-law/asbestos-bankruptcy-trusts/claims 3/9/2012 Source: http://www.doksinet Asbestos Bankruptcy Claims - Asbestos Bankruptcies - Asbestos Trusts - Pittsburgh - As . P1lhb111gh. PA (ir•.•(ll1•r,; Pf l; ,h11:bw11 Pia. Wű.Jt,:11 },JJ G3<;•1: 11 .-· f,~! /,li--P Fnrk F/ 1 Page 1 of 1 : ,,i•,·~~:· GOLDBERG:Y, PERSI<Y WHITEP.C J.Ji00-471 -l:lll O i l IPIU I~\ 1T I.AW Attorneys Practlca Areas Asbe111to& & Mesothelloma Mosolhelloma uiwyera Ask an Asbestos Attomey AsbeolDs

compensaUon Asbestoa Jobsltea AobealDa Banlwptcy Trusts Mallgnent Meaolhelloma 11, companies must submlt plans ouülnlng lhelr reorgenlzaUon to credllors end the courts; as part of lhls plan, most companies ,et up trust.s to benefit aabaatos vicüms harmad by their processes or products. Aabestoa Dl1eases Mesotlletloma Cent•r lnformatfon on mototllelioma Bod olher esbaatoa dlseasea tor : patienlB and femllles NIIISID9 H-• AbUff :~~"~ h~~:~~O::~J~:lect Madlcal Malprac:11c:a l.,,o you ouslalnod lnJu~ee •• a ro,ruft of ltudoquell cara írom a modlcal proreo.Jonal? íl. l .I ,, Theae aabee!Ds companlea and/or Banl<ruplcy Trusts ara cummtiy recolvlng and pa)lng dalma: o CalolBx, o Eaglo Plchar, 1j o HK Porter, 1 • Bebcock & WUcox, • Pllbnco, • Keene, 1lj • CombusUon Englneeling, .f 1 • Kaiser, r-----------------------------s:::iff" .1 Asbestos Bankruptcy Clalms ln the Naws ; Contact Us ;l This Is someümes referred to as a

reorganlzaUon bankruptcy. As raqulred under Chapler Falm68&lnA•beotoe lnJ1.<YAct ~::::t ~:i~.! Companles & Trusts Paylng Clalma Soma of lhe compenles responsible for exposlng workers to asbestos have flled far benkruptcy under Chapter 11 of the US Bankruplcy Code. Thls Is a different klnd of benkruptcy lhan le commonly lhought of ln lho rest of lhe wond; lt Is not a Uquldalion of assets whare lha company goas out of buslnass, but Is a reo,ganlzaUon of dabls so Ihat lhe company continues on ln a modlfied forrn, Flrm Pill&burgh !, Asbestos Bankruptcy Trusts Homo I • HarbllOO Wa/ker, • Helllburton, o Unlled Siet„ Gyp,um, • Armatrong Wond lnduslri<s, o Flbroboerd, • ManvtUe, • Owens COmlng Fii>e,ij!ae, and Nationel Gypsum These trusts are designed to provlda paymanls for all presant and future asbeslos lnJury eleim,, Paymants usually equal only a small portion of lhalr true value. Becauoe of our abla 10 offir:lonUy and knowtedge and

GlCP<lionca, GPW• asbestos attorna effootlvoly ustsbllsh u,a rlgl)ts o oor e ents to a monoy Ihat has beon pot lnto esbastos trusts lor Ylctlms of ll!!!El.l!Ielloma apd olher • - tos 1eloted dlse8$os We flght fo, every doDor owad our ollonls by lhe esbestos trusi. s••• Wo ore aDlo 10 so ettectJvoly process.asb"5tos bankruplCY clalms b- use of our speole.üzed knoldedge antl dedlcn!ed s&aff ~y of our p&bgtg§IWVWl v9!untour 00 lhe commllleoa Ihat halp monaoa lhoue 1/Uala, so wa·l<now oxactly what needs 10 be dooe to ma mae lhe paymenls to our cl onls. rust Establlshed Tha l<i lowlng „ beolQs companles ara p,.niy bankllpr and Bankrupl,:y Y,,I TIJl ll /1) poy tíalm• hsvu bHn crvllod: "° of our Dizo 1wo 1:lan 9ul9kly end efficlontJy aompleta and fllo ctatrris emllnet tho maoy COff1panlos.lhal tiave filed for bankruptcy o AC&S, When wlll my asbestos bankruptcy claims be paid? Tha Uma lt lakos companlee to plan, establlsh, and begln

asbestos payouts írom lheir lrusls can be anywhera írom sevarel months lo several years. Whlle no flrrn can avold these delays to paymenls, the hard W0lk and expariance of our dedlcated asbestos attomeys and bankruptcy staff means thai our cllanls recelve lhelr seWemonts as fset as posslble. • W.R Grace, :1 !1 ~ H•Ylnafi•d ovvr 75,000 lndi.tduol banktuptoy ollllm• wllh twelvo d)fforanl b>nkruplcy trusC. me005 our &laff Is lnUmalol famlUarwilh lhu dlffarln rocesses requlremonl!I, and forniolli requjrod byeach trusL Our GlC!>O •ne• all0W5 us to cut out detoys caused ~Ymissing 0f lncompleto lníonmatlon 1doloys no! ur,common among 01t1ors wi1h le» famiJla rity wllh esbes10f bankruptcy 1rusl procsdu.res or lacldng a dedlC§Od o Plllaburgh COmlng COrporeUon, o Federal Mogul, o NARCO, • AP Green lnduab1es, • Pfiz:er, • Qu/gley, o GAF, • Hercutes, • and a faw othetB. eabestos b~ kruptcy depanmenl. lf you hava quesUone regardlng asbastos bankruptcy,

asbegtos lnJuriee, or bankruplcy 1/Ust payments, plaesa !l9lllam.Jli today Goldborg, Po„ky & Whjto, P.C, 11030 Flflll A•• 1Pltb burgh, PA 15219 IQ(J .71:,geo J/ox: 412c<l71•83ll8 Lfmill Green,;burg, PA IJobo•l•wu P llWd.ooWll l hQlnowJ,11 1AlloJlflmMl Peroonel lnjury Lawyero [ r n l ~ l lll@!ni~ / mod/cal malQmcllce] Lalll Updotod: July 30, 201 0. 03:48:5B pm =~·:iu::=:~::.t:~:=:~r:a:::~!~!~:~ ~:~~~:~~~~c:~:~:;i~:.:51!1t:í!~d~,~~~~~rr!~::::::~~~:~~:::1~:::~:-:,o :::,:::::~!!~•=M 4 WN!o, P.C ••• rd n:asatly 111dama:I by ~ g POfRY & YJhlta PC prul85Dlr11.l llcetl~ ln lhalr MBla: af ndldant o, Tho apl!lons up~od h•raln by pDr1,0rta or o,ga,,,i""llo~ olhor Ul;an Goldbtlirg, p,ky rw l llomey<lenl r•lllltlDJahlp u cstotllnJled b) vla!Ci~ CM wobt.llo Mtienólng UI 1111111, Copydgtn (e) I018•io 12~(Jddberg, P11riky g, Wt1~ P,C An Rlgh1s At11orved, http://www.gpwlawcom/mesothelioma/asbestos-bankruptcyphp 3/9/2012 Source:

http://www.doksinet Asbestos Bankruptcy Trust Claims I Mesothelioma Resource Center Page 1 of2 Attorney Advertlslng MA ELIO OTH MES TER N E RES O URCE C Call us at Speak with (866) 606-6159 a mesothelloma paralegal now Asbestos Bankruptcy Trust Claims The masslve number of asbestos-related claims ln recent decades left dozens of asbestos manufacturers and suppliers fillng far bankruptcy protectlon. So what does that mean far the people who were injured by thelr toxlc products? While bankruptcy flllngs and settlement trusts have further complicated the asbestos lssue, our mesothelioma attorneys ara here to guide you through the process and help you get the compensatlon that is rightfully yours. Bankruptcy and settlemen t trusts Most asbestos companles that file bankruptcy do so under Chapter 11. Thls process Is dlfferent from a tradltíonal bankruptcy, ln whlch a company may be farced to llquidate its assets and close lts doors. Call us at (866) 606-6159 to speak with a

mesothelioma paralegal ln seeking Chapter 11 bankruptcy protection, an asbestos company simply asks the court to suspend any pendlng or future lawsuits agalnst the company. Meanwhila, the company reorganizes and devalops a plan, whlch includes a bankruptcy trust, to pay asbestos claims. Contrary to popular balief, fillng for bankruptcy doas not allow asbestos companias to avoid compensating peopla who have baen hurt by thalr products. How bankruptcy claims are different from traditional asbestos claims A tradltlonal clalm agalnst a solvent asbestos manufacturer involves filing a masothelioma lawsult withln the statute of limltations, conductlng litigation, and setting a court date -a process that can taka years. A claim agalnst a bankruptcy settlement trust, on the other hand, typically moves more quickly through the system. lt does not requira you to glva a daposition or go through a strassful trlal. A bankruptcy clalm Is handlad through a claim rocess that may lnvolve a prlvata

arbitratlon rather than in a publlc courtroom , and tha standard statute of llmitations does not apply. Evan lf its too tata to fila a traditional asbestos settlement trust ln a traditlonal mesothelioma lawsuit, clalms are made agalnst defendants and ere litigated ln the courtroom. ln a bankruptcy claim, on tha other hand, you flle a claim wlth a trust that has baan sat up by an asbastos manufacturer far the sola purposa of compensating asbastos vlctlms. lf you were axposed to multiple asbestos products manufactured by several bankrupt companlas, you may qualify far multipla trusts. Finally, whlle large settlemants ina tradltional mesothelloma lawsult can threaten a companys ability to stay in buslness, settlament trusts are set up to ensure that funds ara avallable for futura clalms. ln other words, the compensation you http://www.mesorccom/mesothelioma-lawsuits/asbestos-bankruptcy-trusts/claims 3/9/2012 Source: http://www.doksinet Asbestos Bankruptcy Trust Claims I Mesothelioma

Resource Center Page 2 of2 receive from a mesothelioma settlement trust will not dlminish the amount available to pay an asbestos clalmant who flles later. Do you qualify for compensation from an asbestos bankruptcy trust? lf you hava mesothelioma or another asbestos-related conditlon, you may be eligible for compensatlon from an exlsting or future bankruptcy trust. Additlonally, if you were exposed to multiple asbestos products that were made by different bankrypt companies, you may be eligible to file claims agalnst multiple, separate trusts, Please keep in mind that even lf the statute of llmltatlons has passed for a mesothelloma lawsuit, you stlll may be ellglble to JI file a bankruptcy clalm. To find out if you may be entitled to compensation from an asbestos settlement trust, contact us tor a free, no-obllgation consultatlon. 11 SOKOLOVE Llvl Call us at (866) 606-6159 Speak with a mesothelloma paralegal now !012 Sokolove Law LLC 3 of this web site is subject to our terms

of use & prlvacy policy and disclalmers. http://www.mesorccom/mesothelioma-lawsuits/asbestos-bankruptcy-trusts/claims 3/9/2012 Source: http://www.doksinet Page 1 of2 Mesothelioma Bankruptcies - Filing Claims Against Bankrupt Asbestos Companies AsbestOSocom !ln:,19ht10 you by th« M,><,<>thetiom.o C(mter Asbestos Bankruptcy Trusts claim11111S. AJ lawsuilS 1111d expectations for íuture claims ~IÍJ:;lliWl began ln thc Uui1cd Stalcs durioy lile 1970,, and by 2002 dcfcodaDIS paid $49 billion in compcn,alion lo inaeased. many a,bestos derendants ft!td forr<arganizalion u.aderscction 524(g)of1ho US Bankruptcy Code aflov.-11 lhe defendants 10 pay claims while pro<ecting Reorg,ani.zation does aot mcao thai an asbestos dcfaidaot has nm oul of moaey, but rethcr that it bBS a large amount of osbcs1os linbilities RcorganJution to compcmate asbe.,10, victims These types of fuods 1hoir asaelS, Courts bavc ordcrcd many oí1he primary asbestos defendants who bavo

filcd for bankruptcy to set up porsooal injlll)I ttusl íunds specifically arcal.,o called m"°thelioma compensation fuods, or asbe,tos bankruptcy truslS is loaded wíth information about me.,c1belioma and other To l<a,J morc about bankruptcy trwn, and asbestos related lawsuits. get a copy of the Mesothelioma Center, ÍimiofDmllltiollllll!lldm Thc packel asbestos-causcd diseascs. fjll R11 thi;lfonpto gclyourfreepacket Asbestos Lawsuits establishcd on Durlng tbe pasi 30 yc:ars. ncarly 100 companies subjec:1 10 asbe!tos lowsuits bavc filcd for bonkniptcy By 2011 60 asbestos truslS had rcponedly been för reorganization. behalf of companies that heve liled fotreorganization. Courts are cxpecred 10 ordcrthccrearion or 1uldi1iou1I lilbtstos 1/UW ü more dcfeodanrs filc : Sincecroation orthe fü,t asbestos bankruptcy llllil in 1988, trusts have paidou1 about SI 7.5 bi!Uon for morethan 33 million claims 1 How to File an Asbestos Bankruptcy Trust Claim oíunubcstos rel11ted injury.

Mosttnista identifycategories aod levcls of diseases , AJ with .wnwl,i, filiog llD asbcsto,bankruptcytrusl clairn requiresshowiog evidence lhot arc clig:ible for vmious wnounts of eompenn.tfon Similar 10 som e stlUe laws Md courts, tru,ts also may requirc: claimBIJts to satisfy c:crtain medicel criteria to 6Jc claim1, ln ad.ditlon to ftliog aclaim form or some other written statemenc concemiog the asbelos-related i11jury, claiman1s also may be ~uired to providc other cvidmcc. Such evidence usually includes: 1. 2. Medlcal documenlalion (e.g, palhology reports) showlng thalthe clalmant has been dlagnosed wilh an asbaslos-related dlsease Medlcal documenlaUon d86Cl1blng toWllat extent ssbestoe contrlbuted to lhecla/mants dlsesse. 3, A statementfrom a qualiHad physlclen regardlng tha diagnosls. 4. f.nd elldenca thai lhe clalmant was expoaed to asbestos al the companys facililies orfrom lhe cornpanys product(s) (eg„ wttnesa affidavlla, employmenl records,

lnvolces) How Trust Claims Are Decided mriew claltns orrnak.e any dctcrmioations based on tbc Bankruptcy trusts ere sct up on bchalf ofcompanics with asbcstos liabilitia. but the c:ompanics do not operate thc tnLlle ln fact 1 these cornpanics do not evidcocc submitted by c:laimBDts, The decision to pay a c:laim is made by lhe ttust, wluc:b is a separate organlzatlon írom thecompany. proccdure., Rcpreoentsrives ofcurrent and IJture Trustce., manage asbestoo 11lats íorthc benefit of-ot and IJture claimants Tbc claims arc proccssed and decided underproset tnut distribution must consent to miy signilicaol chauges 10 these procedures. Trusl9 oflen publish addiriooal ínfürmatíoo about thcirrules, suidelioes and qualificarions. Among the ínformation lhey can publlsh is a list ofconfinncd chúmants exposure1i1es. : Filing A Trust Claim and A Lawsuit? the amounc of , C111f munu.aomc1tmf:S filc asbestos trust claims and asbestos lawsuits lt is lmportltnl to rcmernber however, 1bnc

filh1g a trustclaim can affect 1 oflawt.uJ1 1 ccm1UCJl!11t.ion rec:d Ycid from lnw11uit Srnta lnwl! v3ry gret:illy qn wbcn tnlsl cl~m, ,nuitt be madc and howtrusl camp-cn,Qdcu: iJrcc::lS thc ,h:1cnnln11tion KClleraJ . Fotinslaace states Uca1 lnformndon •hlriny Rtoffl , lndirec:t UUst alimnl Md limitnóQnSon mm paymcnt, dltTcmitly:Thc MQoJbdloo,:a Ccnlcr:aífm ~ lnformation,but it is best to consult aqualifiedmcsothcUoma attomey abou1 yourclaim. „ lhe Jitii:ation : 11 Íl,bcll to con1ult 1meso1hcliom:a anomeutwhethcry ou ~ filt:iln Mb(st:Ott:NSI chdm. an Mbrsto:s h,w1uhor-both, Thcy arc knowlcdiieableabout m=d"e throuffl th~ and tru5t claim procc::ws. They,can 11lso lct you know how filina ooe rypa ofclaím may offa:;t thcamount ofcompmurion you mQy be cllgiblc 10 .wia: ~ ; otb9í!Y89afdnim, .a,! i 1 Y(lU 1ru1y bc1bfct9 J~b,!Wlo lmpor,Mt 10 n:mtlll.bi:r thnl ll!U1tl$ of limluulon only 1UQv a ccnlUD iUI)QWU ofümc ro tile DOOVllÜJ, lC yaur 1[mc: to filc a lawtuit luu:

apín:d fii<.,, """"os INSI clalm Again, it is bcst to speak wi1h a mesotbelioma lnwya 10 dttc:mino thc opliom for your individual casa, dlcit to vlew lhe process ; lnformation Sharing nnr re,, chúm (orms they b.bY31ubmlned ID Udl!I dudnA lhC di!f8YEY S111c cowiB blJvt: dirterml ruld WJOut slnuins lruS clnlm infomuuion whb lo,r~ít defeudnnr:s, Somc COurt:I ;3uirc plninliffs 10 cfü;close aclybccn-filf!clA fcw,i:ourts •.11JCh il$ New York City cnith111i91J· Thl1 rcquircman docs rw nccm:lrlly mcan 1h11 thcphtlruiífl·mwit fi.lc:1l1olrtruStclaütts befon: uial hj~t applies,o anyclaimsthJLb)vealre ui.DI chdmsbl:fn~ 1n111 ccn.aln fllinJt requlre m:sy Pcnnsylvanhu:owu C0Ut17. ~. ,ond Montg~ey Setoffs 0 hu nlready rcccived a trost payment. any dcreodant heorshcsucs Somcstatcs-Jllinois. New York, Te"as and Wel!lt Virginiaamong them-maypermit "setofTs fortrust payments ln otherwords, if a claiment award. acoun from payment ofthat amount the may bo

able 10 dcduct http://www.asbestoscom/mesothelioma-lawyer/bankruptciesphp 3/9/2012 Source: http://www.doksinet Responses to Written Questions of Senator Jeff Flake "The Need for Transparency in the Asbestos Trust" U.S Senate Committee on the Judiciary By: Judge Peggy L. Ableman Oucstion 1: It has been claimed that the exposure evidence that would be disclosed under the FACT Act is already available under the traditional rule of civil discovery. Can tort defendants use the rule of civil discovery to obtain the exposure evidence (a) that would be disclosed under the F ACT Act? If not, why not? (b) Would the exposure that would be disclosed under the FACT Act be more or less than the evidence required to be disclosed under the traditional rules of civil discovery? Response to J(~1): Although federal law does not restrict discovery of trust information, efforts to obtain this information in state court are rarely successful because the discovery rules available in

litigation are insufficient to ensure disclosure from the federal bankruptcy court. Plaintiffs counsel, who have had, and continue to exert, control over the creation and administration of asbestos bankruptcy trusts have included provisions in the Trust Disposition Procedures ("TDPs") that are designed to limit, if not preclude, defendants ability to use discovery to access evidence of a tort-plaintiffs filings oftrust claims. As the United States Government Accountability Office reported in a 2011 Report of the role and administration of asbestos trust: As of201 l, 65 percent of asbestos trusts have modified their TDPs after confirmation to include provisions designed to allow claimants who are also suing defendants in the tort system to prevent tort defendants from accessing exposure evidence and other vital information submitted by claimants as 1 part of their trust claims. This type of confidentially provision generally treats all information that a claimant has submitted

to a trust as aspects of settlement negotiations. As such, they are intended to be confidential and protected by privilege. Generally such a confidentiality provision requires a subpoena for the production of claims information and it must issue from the Bankruptcy Court rather than the trial court. Even in states where the Case Management Orders require production of all trust claims and factual information in support of them, plaintiffs counsel often impose obstacles to their access. Subpoenas served on trusts are vigorously opposed by the trustee Written discovery is met with objection or even ignored. Notwithstanding the judicial trend toward requiring disclosure of trust submissions, plaintiffs have devised methods to avoid providing these materials in discovery. U.S Government Accountability Office, GAO-11-819 asbestos lnjury Compensation: The Role and Administration of Asbestos Trusts 3 (2011) 1 1 MEI 220495l4v.l Source: http://www.doksinet One such tactic utilized often is

for a different law firm, not associated with plaintiff s litigation counsel and not involved in the state court case, to submit the claim forms to trusts, without advising the lawyers in the litigation. Trial counsel, in turn, either deliberately or negligently, do not verify whether they have been submitted. Another method of avoiding disclosure is for a plaintiff s counsel to strategically delay the filing of trust claims until after the litigation is concluded. ln those cases, plaintiffs can legitimately contend that no trust claims have been filed and there is thus nothing to disclose. ln fact some lawyers have freely admitted that they make it a regular practice of deferring the filing 2 of trust claim until after the tort case is over. They justify this approach by asserting their ethical obligation to maximize recovery for their clients. Responsc to l(b): The exposure evidence that would be disclosed under the Fact Act is far less extensive than the information generally sought

in discovery in civil tort cases. While asbestos creditors committees ("ACC") of the trusts consist of tort creditors, in practice their attorneys are given control through power of attorney. ln essence, then, it is the leading plaintiffs asbestos attorneys who draft the Trust Distribution Procedures ("TDP") and who are responsible for establishing the criteria for claim payments. These criteria are specifically drafted in such a way as to allow asbestos claimants to obtain compensation on the basis of far more lax exposure standards than those required in the tort system. None of the trusts require the standard of proof that is used by 3 a court ina civil trial." With trust claims, the exposure requirements can be satisfied simply by an affidavit submitted by the claimant, a family member, or a co-worker, or just by asserting that the individual was employed at any one or more of the various work sites that are listed in the TDPs. With only these minimal

requirements, claimants seeking compensation can easily and quickly submit their claim forms to any of the section 524(g) trusts that have been established, promptly receive payment from many, if not all, of them, without any of the information shared with other trusts. So long as a claimant has satisfied the minimal specific exposure time periods and medical requirements, he or she will automatically qualify for payment from the trust. Even if a claimant has certified to multiple trusts exposures from various asbestos products, the trusts are set up in such a way that contribution or indemnity awards are not considered. Frequently claimants do not ever identify these filings ín testimony at depositions or in requests for production during discovery ín the civil case. The FACT Act will require simply that the trusts file publicly available quarterly reports with the Bankruptcy Courts. These reports will identify claims received by the trusts, including the name and exposure history

of each claimant and the hasis for any payments made. It would also require that the reports be made available to any party to any action if the subject See, Ableman, Peggy, Kelso, Peter, and Scarcella, More A Look Behind the Curtain: Public Release of Garlock Bankruptcy Discovery Confi,rms Widespread Pattern of Evidentiary Abuse Against Crane Co., Mealys Litigation Report, Asbestos volume 30, #10 (Nov 4, 2015), p7 3 See Pls Mot. For a Protective Order Regarding Settlement and Bankr Claims at 1, ln Re Asbestos Litigation No. 96 9999 at 2 (R1 Sup Ct Dec 28, 2011) 2 2 MEI 22049514v.l Source: http://www.doksinet concerns liability for asbestos exposures. Significantly, the reports would not include any claimants confidential medical records or full social security numbers. Ouestion 2: ln traditional multi-defense tort litigation, one defendant can present arguments based on the conduct of other potentially liable parties. (a) ln order to do so, does a defendant need to know who the

other parties are? Does the operation of the asbestos trust prevent asbestos tort defendants from (b) knowing who the other parties are? ln your three decades on the bench, have you seen this dynamic anywhere other than in asbestos litigation? Response to 2 (a), (b), & (e): Given the fact that bankruptcy trusts are unique creations under both bankruptcy law and in the tort system, there exists no other area of the law of which I am aware where an injured party can pursue compensation for his losses from two separate systems, with distinctly different sets of requirements to be entitled to payment. To my knowledge, there is no other privately funded compensation system with over $30 billion in assets under management that is administered by trustees whose interests are closely aligned with claimants, and where oversight is not publicly known and transparency is only minimally existent. It is a dynamic that I have never encountered in any other area of the law. Defendants who are

sued in state or federal courts for injuries from a plaintiff s asbestos exposure are only aware ofthe identity and products oftheir named co-defendants, and in many circumstances, have no way ofknowing how, where, or when a plaintiff was exposed to the products of companies not sued in the lawsuit. Many of the top-tier defendants, who produced thermal insulation and refractory products, originally accounted for a substantial share of compensation being pai<l lu plai11liffs i11 tort litigation. Many of thosc compunics were forced into bankruptcy in the early part of this century. As a result, the plaintiffs turned to a new group of defendants, who are involved in the manufacturing and distribution of asbestos-containing products such as gaskets, pumps, automotive friction products, and residential construction products. At the same time, they systematically abandoned any mention or pursuit of relief from reorganized bankruptcy companies and instead began to target those defendants

who were solvent and still able to be sued in tort. ln the process, witness testimony concerning the products to which plaintiffs were exposed changed markedly, whereby plaintiffs and their coworkers or family members began to deny or minimize plaintiffs exposure to asbestoscontaining products that were manufactured by defendants in bankruptcy. This phenomenon, facilitated by plaintiffs counsel s control over exposure evidence, had the effect of inflating the value of tort claims while suppressing evidence of exposure to the products of reorganized companies. The vast amount of information concerning asbestos victims claims for compensation collected by the Section 524(g) trusts is not available, either through trust governance rules or through civil discovery. This circumstance precludes those defendants who are sued in civil 3 MEI 22049514v.I Source: http://www.doksinet cases from full and complete information regarding a plaintiffs sources of exposure to products of reorganized

companies. Since there are now many examples of cases ín which the product exposures set forth in multiple trust claims differ markedly from, or are inconsistent with, the exposures that plaintiffs are asserting in their tort cases, there is every reason to believe that the trust confidentiality provisions are denying tort defendants highly relevant information about other potentially culpable entities. This suppression of evidence of alternate exposures has a profound impact upon the defendants potential share ofliability, the settlements of claims, and the outcomes at trial. ln essence, a large portion of critical evidence is not available to allow a fair and balanced assessment of fault among all responsible parties. As a result, a plaintiffs exposure history in the tort case may be incomplete at best, and fabricated at worst. Our civil justice system depends upon timely disclosure and full and complete information for the truth-seeking process to work effectively. This dual

compensation system will continue to be viewed with suspicion, and the integrity and legitimacy of the process will continue to be questioned, so long as the ability to cross-check these exposure assertions does not exist. ln your experience as a judge supervising asbestos cases, do you believe promoting transparency in the bankruptcy trusts will help state courts more efficiently process asbestos claims? lf so, why? Ouestion 3: Respon e to Oucstioo 3: Promoting transparency in the bankruptcy trusts may not have as much effect on efficiency in the civil litigation process but eliminating information asymmetries concerning trust claim payments should have the effect of promoting respect for and confidence in our legal process. As it stands now, defendants have no way of knowing what other payments have already been received or will be claimed by a plaintiff in the future. They are therefore left either to guess, overestimate, or underestimate the risks of trial. The growing number of

cases where plaintiffs have been found to have advanced one set of facts under penalty of perjury in one forum, and a contradictory set of facts under penalty of perjury in another, erodes public respect for and confidence in our judicial system. Are the privacy protections in the F ACT Act stronger than the privacy in state courts? afforded normally protections Ouestion 4: Rcsponse to Ouestion 4: A frequent criticism of the F ACT Act is that it would require the trusts to disclose extensive personal claim information. This characterization of how the Act would operate is inaccurate and overblown, especially when compared to the information that must be disclosed in state and federal court litigation, all of which is available on public dockets. The persona! information to be revealed under the Act - the name and nature of the injury asserted - is not extensive and is already on court dockets that are required to be open to the public. The information has been disclosed in bankruptcy

cases in the past without any evidence of abuse. Moreover, courts have the power to limit access to files that contain personal information by the 4 MEI 22049514v.l Source: http://www.doksinet issuance of protective orders. ln my opinion, the potential privacy implications of the FACT Act have been seriously overstated by plaintiffs. The argument that the Act will further victimize unsuspecting asbestos victims by allowing information about their illness to be made publicly available makes little sense in this context. ln any corresponding tort lawsuit, the information required to be disclosed is already available on public dockets and even on the internet. When a trust claimant files a lawsuit, the plaintiffwaives any reasonable expectations of privacy. The informatíon that wíll be required to be disclosed under the FACT Act is far less comprehensive than that whích is included in public court filings. Ouestion 5: You testified that judges should be doing more to díscourage

misconduct in their court. Should judges also consider referring cases in which counsel appear to be withholding, manipulating, or suppressing evidence to the local U.S Attorney or another prosecutor? Response to Ouestion 5: Those who seek to shed more líght on the trust-claíming process frequently descríbe the bankruptcy trust system as "rífe wíth fraud and abuse." Yet, the abílity to identify and characterize these practices as fraudulent in the criminal sense is far from clear cut. Besides the reluctance of federal or state prosecutors to agree to prosecute this conduct, most of the plaintiffs practices of manipulating or suppressing evidence can be rationalized by them as allowable by the structure of the trusts. ln some cases they argue that they are simply following rules established by the TDPs, whích are typically lax, have no oversight, and requíre the mere listing of job a site or proxímity to it as sufficient to justify compensation. When ajudge uncovers

conduct that is misleadíng to the tribunal, or where he or she observes practices that are abusive, the usual procedure for sanctioning an attorney is by referral to state disciplinary boards or counsel. These bodies are charged with investigating instances of lawyer violations ofthe states ethical rules or its code of professional conduct. Prosecutors do not generally usurp the responsibilities of these disciplinary boards. Moreover, the asbestos bankruptcy trust system is structured in such a way that trusts do not compare claims with other trusts to identify inconsistencies, evidence of alternative exposures is not required, and contradictory information in varíous filíngs is acceptable. As a result, it is often difficult to dístinguish fraud, in a purely legal sense that is the result of deliberate and knowing assertions of false or fabricated exposure histories, from zealous advocacy that takes advantage of the loopholes built into the trusts. Often the cases in which

plaintiffs attorneys have failed or neglected to dísclose trust claims can be defended by assertions of sloppiness, innocent mistake, or inadvertence, rather than fraud. 5 MEI 22049514v.l