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October 5, 2017

Fact v. Fiction: My true take on the FACT Act

by: Joseph F. Rice

I had the privilege of being asked again this fall to co-chair Perrin Conference’s Annual Asbestos Litigation Conference: A National Overview & Outlook recently. It was attended by more than 600 people with an array of backgrounds including substantial members of the insurance community who handle asbestos litigation or mass tort litigation nationwide; in-house corporate counsel; attorneys on both sides of asbestos litigation; judges; academics; representatives from companies that sold asbestos-related products and other related parties involved in asbestos litigation. While we don’t always agree on issues, we respect our differing perspectives and realize that we can learn from one another.

As co-chair, I can sit at the podium during all of the presentations and am expected to help raise issues and address questions.

The conversations are candid and in-depth. As you can imagine, it is difficult to take away three words from any of the discussions that could, without needing any other explanation or context, provide anyone’s definitive stance on a topic. However, it has come to my attention that a Huffington Post contributor, Sara

Corcoran Warner, was in attendance and did such from remarks I made. The article she wrote claims I responded to a question about the effects of so-called “FACT” laws by saying they would be “no big deal,” but this is false, misleading, and taken out of context. 

Let me make it perfectly clear.

I wholeheartedly oppose the so-called “FACT” Act and similar state proposals because they are nothing more than unnecessary, burdensome pieces of legislation that invade victims’ privacy while placing significant economic costs on the limited funds held by the asbestos trusts who are already paying pennies on the dollar of the agreed-to value to asbestos victims and their families. To place such significant burdens on them just for the sake of creating further delay and interfering with victims’ rights under their state court systems is unjustified and not a proper role for Congress. The litigating defendants already have the information they need, and they have had it for YEARS.

The FACT Act as drafted creates significant and unjustifiable privacy concerns for asbestos victims and their families. It would require every asbestos trust to file on a public court docket a list of the names and significant personal and work history information of every claimant who has submitted a claim to that trust in the past quarter. In this age of identity thieves and regular negligent disclosure of supposedly private financial data by large banks or data aggregation companies, most recently and significantly like Equifax, the FACT Act makes it much easier for fraudsters to identify and prey on the very asbestos victims these trusts are supposed to compensate. 

Here’s how the FACT Act (Furthering Asbestos Claim Transparency) was actually raised and my reaction.

During one of the panel presentations, insurance industry representatives were discussing what they believed to be the amount of compensation paid, in various parts of the country, for different types of asbestos-related illnesses. I posed a question to them that basically asked: have you noticed any difference in the settlement amount paid by asbestos defendants involved in the litigation in jurisdictions that passed a so-called ‘transparency’ statute? The reply was that the insurance companies did not have any data to establish that the compensation values had been reduced. In fairness to them, one did indicate that there may not have been enough time.

To that response, I said that they’ve had enough time in some jurisdictions, but the reality is that the information these statutes are seeking to have produced is not going to make a difference and is “no big deal.” However, my next statement was to explain that the information that they seek has already been available to the attorneys in the litigation and these transparency acts are nothing more than politics and trying to press for more regulation.

Instead of providing an accurate account of that conversation, I was instead quoted as only saying that the FACT Act was “no big deal.” Clearly, my comments were taken out of context and misconstrued.

It is disheartening when parties deeply involved in a litigation matter sit down and have an open conversation and attempt to discuss certain issues, but the conversations are reported totally out of context. It is a nation of free speech, but journalists must take great care to responsibly convey information, placing truth and accuracy ahead of any bias.

Again, my time spent at Perrin was productive and I think my perspective helped others see a side they may not have considered. But I was dismayed to see my name used to promote the FACT Act.

The true fact is that I am and will always stand by what I believe is in the best interest of our clients and in this case, people harmed by asbestos. The FACT Act threatens their privacy and is entirely unnecessary.