The Mass Tort Claimants' Bargain

75 Pages Posted: 30 Nov 2023 Last revised: 24 Feb 2024

See all articles by Daniel J. Bussel

Daniel J. Bussel

University of California, Los Angeles (UCLA) - School of Law

Date Written: November 30, 2023

Abstract

This Article charts a path forward for the bankruptcy system to assume the function of implementing fair and efficient collective resolution of mass tort cases in the wake of recent controversies over third-party releases and solvent debtor mass tort chapter 11 cases. Drawing on lessons gleaned from bankruptcy courts’ forty years of experience in the field, I propose reforms that at once broaden access to bankruptcy’s collective resolution processes for mass tort defendants while addressing the fairness concerns of their victims. Properly constrained, bankruptcy has powerful tools to collectively resolve mass torts: global litigation stays, consolidation of federal and state actions; permanent channeling of filed lawsuits, unfiled present claims and future claims; nondebtor releases to resolve derivative and related mass-tort claims made against co-liable third-party defendants; and, most importantly, classification, solicitation and class-wide voting procedures that may be readily adapted to obtain authentic class-based consent to collective settlements and impose those settlements on outvoted dissenters. Creative and judicious refinement of these mechanisms can appropriately balance negotiating power among claimants and defendants and constructively push the parties towards a fair resolution of mass tort problems.

Keywords: mass torts, chapter 11, bankruptcy, third-party releases, Texas two-step, MDL, complex litigation

Suggested Citation

Bussel, Daniel J., The Mass Tort Claimants' Bargain (November 30, 2023). 97 Am. Bankr. L. J. 684 (2023), UCLA School of Law, Law-Econ Research Paper No. #23-08, Available at SSRN: https://ssrn.com/abstract=4648896

Daniel J. Bussel (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-7977 (Phone)
310-825-6023 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
96
Abstract Views
297
Rank
496,005
PlumX Metrics