Elizabeth Warren was key in asbestos case
Worked for insurer on fund for victims
Six months after Elizabeth Warren arrived in Washington to work as an adviser to Congress, she experienced another career milestone in the nation’s capital, a seat at the US Supreme Court’s mahogany counsel table.
The 2009 appearance was the only time Warren helped represent a party before the nation’s highest court. And it provides a rare window into a less-heralded aspect of the Harvard Law professor’s career, her time as a working attorney in the courts.
The case - Travelers v. Bailey - was remarkable in many respects. It was sprawling and complicated, involving dozens of lawyers, thousands of asbestos victims, and nearly three decades of court battles that still have not ended.
It was also notable because Warren, who has gained fame for defending consumers against big business, was in this case working on behalf of a big business. For her contribution, Warren was paid $212,000 over three years by Travelers, the nation’s largest insurer.
Travelers was fighting to gain permanent immunity from asbestos-related lawsuits by establishing a $500 million trust. The trust would have been divided among current and future victims of asbestos poisoning who had claims against the nation’s largest asbestos manufacturer, Johns-Manville, which had been insured by Travelers before it went bankrupt.
Travelers won most of what it wanted from the Supreme Court, and in doing so Warren helped preserve an element of bankruptcy law that ensured that victims of large-scale corporate malfeasance would have a better chance of getting compensated, even when the responsible companies go bankrupt.
But after Warren left the case, it continued to twist and turn through the legal system, leaving a result that has been disastrous for asbestos victims. Travelers, in part because of its Supreme Court victory, has held onto its immunity from most lawsuits. But a ruling on Feb. 29 in a separate court has taken the company off the hook for paying out the $500 million settlement.
In the words of one judge who tried to preserve the settlement, Travelers received “something for nothing.’’
While Warren’s Republican opponent in the US Senate race, Scott Brown, has highlighted this business arrangement as an example of hypocrisy for a candidate who has portrayed herself as the champion of consumers, a Globe examination of the convoluted legal record paints a murkier picture.
It is clear that Warren received a substantial amount of money to help the company win immunity from all future lawsuits, with the expectation that the company would have to pay the settlement. But Warren’s work on the case may also have helped Travelers indirectly lay the groundwork for its current position, a position Warren and several other lawyers involved on both sides of the case say they did not foresee: where Travelers has immunity from most suits without having to pay the settlement.
“My heart goes out to the victims of this terrible, terrible disaster,’’ Warren said in a recent interview. “It’s heart-wrenching that there are new victims every year. . . . I think they should be compensated. That’s it for me. That’s what this is all about.’’
Warren, like many law professors, keeps her hand in the courts while she teaches and writes. But that aspect of her career is largely in the background as she runs for Senate, a Democrat seeking to unseat Republican Scott Brown.
The extent of her legal practice, and the clients she has represented, is unclear.
Her campaign would not release a full list of cases she has been involved in. And, while some representation appears in scattered court records, much of her consulting can be done without placing her name on dockets as an attorney of record.
Her campaign detailed six Supreme Court cases in which she has filed so-called friend of the court briefs. They include two briefs on behalf of the AARP: one of which supports protecting individual retirement accounts in the event of a bankruptcy and another that fights to allow judges to lower consumers’ credit card interest rates in the event of personal bankruptcies.
The campaign also provided a 2001-2003 case in which she testified in two trials as an expert working on behalf of asbestos victims, winning access to a $300 million trust, against insurance companies.
Warren’s campaign would not say how much she has earned for her outside work in these and other cases. The $212,000 she earned from Travelers from 2008 to 2010 was included in Warren’s government disclosure forms, required when she worked in Congress and the Obama administration, and when she declared as a Senate candidate. The forms also show that she earned $90,000 for serving as an expert witness for a Florida law firm suing credit card companies.
Four years of her tax returns released on Friday show that she received an average of about $150,000 a year in gross income from her home-based consulting business that includes her legal work, public speaking, writing, and investing.
Warren is considered a leading authority on bankruptcy, and the Travelers case was among a very few that reach the heights of the Supreme Court. She began writing and lecturing about bankruptcy trusts in the 1980s. The trust issue was also addressed in a 1,100-page congressional report on bankruptcy law, drafted in 1995 by Warren, the primary adviser for the National Bankruptcy Review Commission. An attorney who worked with Warren on that commission was heading Travelers’ legal team and called her when the issue boiled up to the highest court.
Travelers’ main attorneys handled the oral arguments in front of the court. Warren sat with them as one of three attorneys of record listed on their brief, the important written argument made to the court.
An attorney for Travelers, Andrew T. Frankel, declined to comment on the case or Warren’s role in it while it remains under appeal. Jennifer Wislocki, a Travelers spokeswoman, said the company believes the most recent ruling in the case is correct, but would not comment further.
Warren says she was fighting for an arcane but important principle in taking on the case: the constitutionality of allowing bankrupt companies facing a flood of lawsuits to form what are known as trusts. The trusts are large bank accounts that set aside money for current and future victims.
Warren says that the trusts provide a fair system to distribute the money - rather than first come, first served. But companies only will agree to them if they receive protection from future lawsuits.
“The issue I was focused on like a laser was the constitutionality of preserving the trust, because the trust is a critical tool for making sure that people who’ve been hurt have a fair shot at compensation,’’ she said. “Without it, millions of people who’ve already been injured will get nothing, and millions more in the future will get nothing.’’
The legal saga began in 1986 when leading asbestos supplier and manufacturer, Johns-Manville, declared bankruptcy under a crush of asbestos-related lawsuits. Travelers insured Johns-Manville from 1947 through 1976.
As part of Johns-Manville’s bankruptcy proceedings, Travelers agreed to pay $80 million toward a larger $770 million trust fund that would pay off current and future asbestos victims who sued Johns-Manville.
In exchange for its contribution, Travelers won a court order protecting it against related future lawsuits.
Despite the order, the lawsuits kept coming, with some lawyers looking for ways around the protection order. Many made the new argument that Travelers conspired with other insurers and manufacturers to conceal the dangers of asbestos and failed in its own duty to warn the public about those dangers.
Travelers wanted to stop the suits. So the company entered into another settlement with asbestos victims in 2004, this one brokered by Mario Cuomo, a former governor of New York who works as a professional mediator. It clarified the 1986 order and it required Travelers to pay a sum now worth about $500 million into the settlement fund.
That Cuomo settlement was challenged by a smaller group of asbestos victims who did not want the company to gain immunity. It was also challenged by another insurance company, Chubb, which was being sued, along with Travelers and dozens of other insurers in multiple lawsuits, based on the theory that insurance companies conspired to hide the dangers of the substance. By suing to block the Travelers settlement, Chubb wanted to preserve its right to shift some of the financial blame back to Travelers in the event that it had to pay damages to asbestos victims.
Such conspiracy suits have not been successful, but neither insurance company wanted to take on what its attorneys considered additional risk or defense costs.
It was that issue that brought the case to the Supreme Court, where Travelers - with Warren’s help - crafted a case designed to allow the company to put this issue to rest: pay out the $500 million and win immunity from any future suits.
To do that, Travelers argued that the 2004 settlement was simply an extension of the 1986 agreement. Therefore, the case focused on the legality of that original agreement and the degree of protection it provided to Travelers against future lawsuits.
Though some asbestos victims still objected to the Travelers settlement, another larger group of victims was on the same side as the insurer - at least during this portion of the case - in seeking to have the settlement upheld.
The Supreme Court decision gave Travelers a victory, validating the legality of the 1986 agreement and the immunity it provided. But it left to the lower courts to decide whether Chubb had a right to challenge the 2004 settlement.
That triggered another series of legal arguments that ultimately unraveled the $500 million settlement, leaving Travelers with permanent immunity from most asbestos lawsuits without having to pay the victims.
The payment of the $500 million settlement was premised upon the company winning immunity from all lawsuits. But because an Appeals Court subsequently ruled that Chubb could still sue Travelers, still another judge ruled that the conditions had not been met to force Travelers to pay out the money.
In his Feb. 29 order, US District Judge John G. Koeltl cited the Supreme Court case, saying essentially that Travelers never needed the second settlement, the one that cost it $500 million, to protect itself from most asbestos suits.
Koeltl ruled that the 2004 settlement was simply a clarification to “obtain complete peace’’ against the likes of Chubb and other insurers. And because there was no peace from Chubb, there was no settlement.
Plaintiffs’ lawyers say they are not surprised Travelers would try not to pay the money. As a publicly traded company, it is obligated to serve its shareholders.
“It’s an insurance company,’’ said Michael P. Cascino, a Chicago attorney representing a group of asbestos victims. “Unless you believe a corporation’s a human being, how could it be sincere’’ in wanting to pay the settlement?
Bruce Carter, an Ohio attorney representing 19,000 plaintiffs, added that “like any company, they’d love to get something for nothing. And that’s really where they’re at now.’’
The case remains on appeal. In the meantime, Carter said, many of the families who have been waiting more than a decade for their settlement money have seen loved ones die.