Dissonance and Distress in Bankruptcy and Mass Torts

14 Pages Posted: 16 Sep 2022 Last revised: 21 Sep 2022

See all articles by Andrew Bradt

Andrew Bradt

University of California, Berkeley - School of Law

Zachary D. Clopton

Northwestern University - Northwestern Pritzker School of Law

D. Theodore Rave

University of Texas at Austin - School of Law

Date Written: September 13, 2022

Abstract

This Essay reviews the highly successful 2022 Fordham Law Review symposium on the Intersection of Aggregate Litigation and Bankruptcy. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. It also was successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.

This Essay makes two principal observations. First, we document the different ways that MDL and bankruptcy players view their institutions. Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values. Civil litigators, including those in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication. Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on. Second, we demonstrate that criticisms of MDL’s treatment of individual plaintiffs—both in the symposium and outside it—are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts. Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy.

Keywords: civil procedure, federal courts, bankruptcy, torts, mass torts, MDL

Suggested Citation

Bradt, Andrew and Clopton, Zachary D. and Rave, D. Theodore, Dissonance and Distress in Bankruptcy and Mass Torts (September 13, 2022). Fordham Law Review, Forthcoming, Northwestern Public Law Research Paper No. 22-28, Available at SSRN: https://ssrn.com/abstract=4218254 or http://dx.doi.org/10.2139/ssrn.4218254

Andrew Bradt

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Zachary D. Clopton (Contact Author)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

D. Theodore Rave

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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