Wednesday, February 15, 2017

Statement of the Honorable John Conyers, Jr., Ranking Member, Committee on the Judiciary, for the Markup of H.R. 906, the “Furthering Asbestos Claim Transparency (FACT) Act of 2017”

Dean of the U.S. House
of Representatives
John Conyers, Jr.
Mr. Chairman -- I have several serious concerns with H.R. 906, the “Furthering Asbestos Claim Transparency Act,” or the so-called “FACT Act.”

To begin with, the bill’s reporting and disclosure requirements are an assault against the privacy of asbestos victims who seek payment for their injuries from bankruptcy trusts established for that purpose.

In particular, H.R. 906 would force these trusts to publicly disclose sensitive, personal information of these asbestos claimants, including their names and exposure histories. 

As a result, their private information will be irretrievably released into the public domain available via the Internet.

Just imagine what insurance companies, prospective employers, lenders, and data collectors could do with this private information.  Worse yet, these asbestos victims will be more vulnerable to predators.

By exposing their personal information to the public, H.R. 906 will allow asbestos victims to be re-victimized notwithstanding the fact that such disclosure has absolutely nothing to do with compensation for asbestos exposure.

While H.R. 906's supporters claim that it is intended to help victims of asbestos exposure,  asbestos victims vigorously oppose H.R. 526.  
In fact, I am not aware of a single asbestos victim who supports H.R. 526.

Because of this serious shortcoming of the bill,  I intend to offer an amendment that will protect the privacy of asbestos claimants.

Another problem with H.R. 906 is that it is fundamentally inequitable.        Although the bill requires bankruptcy asbestos trusts to make certain disclosures, it makes no comparable demands on those whose products killed or injured millions of unsuspecting American workers, servicemembers, and consumers. 

In fact, some manufacturers intentionally concealed known risks of asbestos exposure and used every trick in the book to avoid liability.  They even fought the federal government’s efforts to ban its use.
As a result, asbestos continued to be widely used in constructing our homes, offices and public schools.  This very building in which we are sitting is in the midst of a nearly 20-year asbestos abatement effort. 

And now, these very same manufacturers ask  Congress to help them by passing H.R. 906, which effectively shifts some of the costs of discovery away from them to asbestos bankruptcy trusts.

Unfortunately, H.R. 906 is nothing more than an attempt by asbestos defendants to do an end-run around the discovery process available under non-bankruptcy law.
Finally, contrary to the claims of proponents of this legislation, there is no evidence of endemic fraud warranting such an invasive measure as H.R. 906.

The Government Accountability Office reported that there is no empirical evidence of such fraud with respect to the trusts’ claims processing system.

While not perfect, the trust system set up under Bankruptcy Code section 524(g) has generally proven to be beneficial to both asbestos victims and to corporations facing mass tort liability for causing asbestos injuries. 
In exchange for agreeing to fund these trusts, companies are able to shed their massive asbestos tort liabilities and re-enter the business community on a competitive basis for the benefit of their creditors and those who they injured.           

The trusts, in turn, owe a fiduciary duty to all beneficiaries to ensure that only proper claims are paid to the extent possible.

These are just a few of the serious concerns that I have with this legislation.  So, accordingly, I must urge my colleagues to join me in opposing this seriously flawed measure.

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