The So-Called FACT ACT: Poised to Protect Corporations over Consumers

Lawyers writing

House passes FACT Act despite opposition from veterans, workers, cancer patients, and their family members

If proposed laws were consumer products, the toxicity of a pair of bills passed by the House of Representatives last month, and the number of people the bills will injure, would undoubtedly give rise to a lawsuit. And the deceptive names given to these bills—the “Fairness in Class Action Litigation Bill of 2017” and the “Furthering Asbestos Claim Transparency Act of 2017”—would subject the authors to a claim for false labeling. These bills are grossly anti-consumer and will strip important legal rights from injured persons and impede their access to meaningful justice through the civil courts.

H.R. 985, which is the asbestos “transparency” bill, also commonly referred to as the “FACT Act,” promotes neither transparency nor facts. Instead, it heavily burdens asbestos victims. The bill would not only authorize but require asbestos personal injury trusts to routinely publicize sensitive personal information about individuals who seek compensation from them.

A bit of background on these trusts: For decades during the 20th century, corporations involved in a variety of industries profited from the manufacture and sale of asbestos and asbestos-containing products. Many of these companies continued to market asbestos-containing products for years after they learned that their products released asbestos fibers, knowing full well that inhalation of asbestos fibers causes several painful and deadly forms of disease.

Once the public gained awareness of this problem, injured workers and consumers took to the courts to hold the manufacturers accountable. Eventually a number of corporations sought bankruptcy protection in part to avoid paying all asbestos-injured claimants full compensation for the significant harm suffered as a result of these toxic products.

As a condition of emerging from bankruptcy, federal law requires these corporations to establish trust funds for injured claimants, although the trusts only pay injured people a fraction of the value—often pennies on the dollar—compared to what juries historically have assigned to asbestos plaintiffs’ painful, debilitating, and often fatal injuries.

In order to receive benefits from the trusts, claimants must submit highly sensitive personal and medical information. To date they have done so pursuant to guidelines that keep this private information confidential, except to the extent that it becomes discoverable in the course of pending litigation or a court otherwise orders disclosure.

The FACT Act mandates that the trust administrators publicly disclose quarterly reports setting forth the claimants’ name, exposure history, and the basis of the trust’s payment to the claimant. There is no reason to make this personal identifying information publicly available on the Internet, which the FACT Act does, other than to intimidate the claimants. Additionally, imposing this burden on the trust administrators virtually guarantees that the job they were designed to do—evaluate claims and remit payments to seriously injured individuals—will be impeded and delayed due to the additional busywork created by this bill. If H.R. 985 were truly an effort aimed at transparency, the disclosure requirements embodied in the bill would be applied not only to trust administrators with respect to asbestos claimants but also to the entities that made and sold harmful asbestos products.

Corporate manufacturers profited from decades of widespread sales of asbestos products. Many of them have records archives that contain information that could help those harmed by their products. For example, sales histories showing to whom and where they sold their products, specifications setting forth the ingredients in the products, and meeting minutes and correspondence showing what the manufacturers knew about their products’ deadly dangers, all are facts that, if made public, would curb the time and expense involved in trying to obtain this information through lawsuits.

There is no question that the public, and for that matter the environment, would benefit from making such information public. But the FACT Act imposes no requirements of any kind on the asbestos-product manufacturers whose misconduct and lack of accountability brought about what the World Health Organization has called a “Global Health Crisis,” with more than 107,000 annual deaths world-wide from asbestos, and have also consumed a significant amount of judicial and juror resources as asbestos-related lawsuits continue to be pursued against corporations that refuse to make amends for their unlawful acts.

The bill’s failure to call for transparency from the corporations responsible for the millions of tons of asbestos in our communities, reveals the bill to be just another attempt by big business to rig the system against the people who’ve been harmed. If the bill passes the Senate, President Trump will likely favor the changes, destroying the confidentiality of victim’s settlements with trust funds and further delaying and denying justice.

If you believe in consumer and patient protection and corporate accountability, please call your senators and urge them to vote no on the FACT Act.

Simmons Support Team
Simmons Hanly ConroyWritten by:

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