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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Floor Statement of the Honorable John Conyers, Jr., Ranking Member of the Committee on the Judiciary on H.R. 1927, the “Fairness in Class Action Litigation and Further Asbestos Claims Transparency Act of 2015"

“Mr.  Chair – I rise in strong opposition to H.R. 1927, the ‘Fairness in Class Action Litigation and Furthering Asbestos Claims Transparency Act of 2015.’

“I oppose this legislation because it shields corporate wrongdoers by making it more difficult for those who have been harmed by their actions from obtaining justice and allows these wrongdoers to further victimize their victims.

“Among H.R. 1927's many flaws is the fact that this legislation will have the effect of denying individuals access to justice and threatening victims of corporate wrongdoing, all in the name of protecting the powerful.

“This legislation is just the latest attempt to take power away from ordinary citizens and place it in the hands of the most powerful corporations and industries.

“Whether it is by making it almost impossible for ordinary people to pursue their day in court through the important class action mechanism or threatening the privacy of asbestos victims, it is clear that H.R. 1927 does not have the interests of ordinary people in mind.

“And it raises the broader question of who rightfully should hold power in a representative democracy like ours – politically unaccountable corporations who seek only to maximize their own profit, or the people, who are supposed to be sovereign.  I say it is the people.

“Section 2 of H.R. 1927 will make it virtually impossible for victims of corporate wrongdoing to obtain relief through class actions in cases seeking monetary relief by requiring a party seeking class certification to show that every potential class member suffered the same type and scope of injury at the certification stage.

“Class actions are an important means for consumers to hold wrongdoers accountable without having to engage in multiple duplicative actions.

“Most importantly, class actions make it financially feasible for those who have smaller, but not inconsequential injuries to obtain justice. 

“These injuries include such diverse matters as breach of warranty, products liability, and employment discrimination.

“As it is, class actions are very difficult to pursue.  Under current procedure, the courts strictly limit the grounds by which a large group of plaintiffs may be certified as a class, including the requirement that their claims raise common and factual legal questions and that the class representative’s claims are typical of those of the other class members.

“Rather than improving upon this class certification process, however, H.R. 1927 imposes requirements that are almost impossible to meet, effectively undermining the use of class actions.

“Finally, section 3 of H.R. 1927 gives asbestos defendants – the very entities whose products injured millions of Americans– new weapons with which to harm their victims. 

“Section 3 requires a bankruptcy asbestos trust to report on the court’s public case docket – which is then made available on the Internet – the name and exposure history of each asbestos victim who receives payment from such trust as well as the basis of any payment made to the victim.  

“As a result, the confidential personal information of asbestos claimants – including their names and exposure histories – would be irretrievably released into the public domain. 

“Just imagine what identity thieves, and others, such as insurers, potential employers, lenders, and data collectors could do with this sensitive information. 

“Essentially, this bill re-victimizes asbestos victims by exposing their private information to the public – information that has absolutely nothing to do with compensation for asbestos exposure. 

      

“This explains why asbestos victims vigorously oppose this legislation as it is an assault against their privacy interests.

“In sum, H.R. 1927 is a seriously flawed bill that only benefits those who caused harm to others. Not surprisingly, the White House issued a veto threat, stating that the Administration ‘strongly opposes House passage of H.R. 1927 because it would impair the enforcement of important Federal laws, constrain access to the courts, and needlessly threaten the privacy of asbestos victims.’

“For these reasons, I urge strong opposition to H.R. 1927 and I reserve the balance of my time.”

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