Republican-Led FACT Act Profits from Death of Asbestos Victims

by Sokolove Law

The Furthering Asbestos Claim Transparency (FACT) Act of 2015 is a bill proposed by Republican Representative of Texas and member of the Tea Party Caucus, Blake Farenthold, a third-term congressman who is no stranger to controversy. In theory, the FACT Act is supposed to prevent corruption by protecting asbestos trust funds from dishonest plaintiffs. In reality, neither Farenthold nor his accomplices in big asbestos companies have produced evidence of this corruption; instead, they have spent millions of dollars in congressional donations, trying to buy influence and prevent money from going to dying victims.

Asbestos trusts were first set up in the 1980s after the Johns Manville Corporation, a manufacturer of asbestos-containing products, filed bankruptcy in the face of overwhelming lawsuits. The trust’s purpose was to pay back the victims of Johns Manville’s products in a way that was more cost-efficient than going to court. There are now over 50 asbestos trust funds in the U.S., holding an estimated $30 Billion.

Since 2012, Republican legislators with ties to big business have been trying to force the FACT Act through Congress. Farenthold introduced it to Congress in 2013 and, after it was rejected, reintroduced it again in 2015. In spite of the FACT Act being an inhumane bill opposed by health organizations and the overwhelming majority of the Democratic Party, Farenthold keeps trying to pass it and keeps pretending the bill will somehow help asbestos victims.

The Facts of the FACT Act Are Bad News for Asbestos Victims

If passed, the FACT Act will force bankruptcy trusts, which are already underfunded, to hand over personal information about claimants in quarterly reports. It will also slow down claim processing so that sick victims, who already only receive 25% of the real value of their claims, will have to wait even longer to receive compensation.

Farenthold, who in the past has made a show of defending privacy laws by tweeting about his voting record, would nevertheless require victims of asbestos-caused diseases to disclose their full names, birthdates, work history, medical records, financial information as it relates to asbestos litigation, and the last four digits of their social security numbers. This information would be made readily available on the Internet, leaving victims vulnerable to identity theft.

What’s perhaps most disturbing is that Farenthold isn’t acting alone – in fact, he has the support of numerous large corporations. His supporters include a host of insurance companies such as Honeywell, Allstate, 3M, and, most interestingly, Koch Industries. Koch Industries is the parent company of Georgia-Pacific, a corporation that spent $6 Million on bribing scientists to produce “evidence” that asbestos is harmless. Georgia Pacific manufactured an asbestos-based construction material called “Ready-Mix” joint compound, and used dishonest research as a way to successfully escape from $1 Billion in liability lawsuits.

Republican Congressman and Chamber of Commerce Defer to a Newspaper Article as “Proof”

When he first introduced the FACT Act to Congress in 2013, Representative Farenthold wrote a blog post on the political site, www.thehill.com, where he claimed “asbestos trusts may be fleeced into nothingness [without the FACT Act].”  He also claimed to have found “strong evidence of fraud and abuse in asbestos lawsuits.” Despite his allegations, congressman Farenthold gave absolutely no specific examples, and instead made vague claims the likes of: “A Delaware judge explained that lying and non-disclosure ‘occurs a lot’ in asbestos litigation.” Without any facts or statistics to back up his claim, the congressman referred his readers of to a 2013 article in The Wall Street Journal.

What’s interesting about Farenthold’s reference to WSJ, is that another large supporter of the FACT Act, the U.S Chamber Institute for Legal Reform (ILR), also mentioned this very same article at about the same time. The ILR is a part of the U.S Chamber of Commerce, the largest special interest group in the country with lobbying expenditures totaling over $124 Million. The Chamber represents business interests and spends millions of dollars opposing groups that fight on behalf of asbestos victims.

After taking out several full-page, pro-FACT-Act ads in a Washington DC newspaper, the Chamber wrote an open letter to the U.S. House of Representatives stating, “…Congress must act to ensure that trust funds established to resolve asbestos claims are free from waste, fraud, and abuse.” Once again, despite accusing plaintiffs of being dishonest and wasteful, the ILR offered no evidence of such corruption and instead leaned on the same Wall Street Journal article as its “proof”. Both Farenthold and members of the ILR ignored the fact that all of the supposedly fraudulent plaintiffs were sick and some were already dead from cancer and respiratory conditions.

So, What Did the Wall Street Journal Article Actually Say?

Titled, “As Asbestos Claims Rise, So Do Worries About Fraud”, the WSJ article, trumpeted as evidence by Farenthold and lobbyists, appears to sympathize with the big corporations found guilty of using asbestos in their products. It describes such companies as being “forced into bankruptcy” by a “multibillion-dollar asbestos litigation industry.” In spite of this, the article mentions only 2 specific cases – 2 out of the 850,000 it investigated– where fraud seemed possible.

One of the central issues brought up by FACT Act advocates and WSJ is the idea that plaintiffs’ attorneys are being dishonest and “double-dipping” by sending claims to multiple bankruptcy trusts at the same time. This isn’t true however, as an experienced attorney for the Environmental Working Group’s Action Fund explains, “… there is nothing illegal or double-dipping about it. The trusts only pay the portion of the claim attributed to their responsibility.”  Most victims of asbestos were exposed to the fiber by many different manufacturers over the course of their lives. Since victims often get less than 25% of their claim’s value, it’s imperative that they apply to several different trusts to have even a slight chance of getting compensation.

Among the other 849,998 cases WSJ analyzes, it attempts to point out “irregularities” that really aren’t all that irregular. One of its main examples is that 2,689 applicants to the Johns-Manville asbestos trust claimed exposure to asbestos from industrial jobs before they were 12-years-old.

In a counter article for the Huffington Post, Brian Young points out that WSJ acknowledges that at least some, if not most, of these claims represent children who were exposed to asbestos through the fibers that clung to their parents’ clothing, also known as secondhand exposure.

During a congressional subcommittee hearing, trial lawyer, Elihu Inselbuch addressed the flimsy evidence provided by FACT Act supporters and WSJ, saying, “Anecdotes are not data, and the authors were unable to come up with more than their own ‘worries’ about fraud. The article certainly does not provide support for the FACT Act.” Inselbuch also pointed out that so-called “anomalies” found by WSJ were “clerical errors” that occurred only in cases where a “child [was] killed by mesothelioma contracted from exposure to a parent’s work clothes.”

This means that advocates of the FACT Act want to pass radical legislation because they’re worried that families who have lost both a parent and a child to mesothelioma or another asbestos-related disease will receive too much money. Such disturbing corporate rationale should only incite the public’s outrage towards these big offending companies. It’s not enough that millions of industrial workers were forced and often deceived into working with and around asbestos fibers, but that as a result, their children were killed as well.

The Real Cost of the FACT Act

The Wall Street Journal, is worried for the future of asbestos trusts because it found a single, possibly fraudulent claim for “as much as $75,000.” The authors of the article ignore that $75,000 is nothing compared to the millions that insurance companies have paid in donations to support the FACT Act – or the millions that corporations have spent in soliciting dishonest research and under the table medical costs to silence sick employees.

In his support of the FACT Act, Representative Farenthold has grasped at clerical errors and technicalities while overlooking the larger point: That the vast majority of claimants to asbestos trusts are either sick, dying, or already dead from cancer and respiratory diseases that the medical community has strongly tied to asbestos exposure for the past 100 years.

Unfortunately, it seems as if FACT Act proponents are, in a way, counting on the death of asbestos victims. In a statement sent to Washington D.C., a victim’s advocacy group referred to the FACT Act as the “Delay Till They Die Act”, claiming that this is essentially the strategy being used by corporations and lobbyists: They intend to create a series of barricades between victims and their claims with the hope that the sickest of those victims will die before they collect.

Advocates of the FACT Act don’t understand what’s truly at stake – it isn’t funding or keeping a few extra million sitting in trust funds – it’s human suffering. When honest citizens are poisoned for decades, it is the duty of both the government and the private sector to at least try to seek justice on behalf of their lives and their losses, even though no amount of money will ever fully pay that debt. Representative Farenthold seems to think that the possibility of losing $75,000 on a single claim is worth the suffering of thousands of working families across the country.

Republican-Led FACT Act Profits from Death of Asbestos Victims

Manufacturers of Asbestos-Containing Products Don’t Need Public Sympathy

At the hearing held before the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Elihu Inselbuch spoke out against the FACT Act, describing it as “the latest stratagem by corporations that produced and distributed asbestos-containing products to avoid responsibility for the deaths and injuries of millions of Americans caused by those products.”

Inselbuch also warned against the dangers of allowing special interest groups to determine public policy. It’s strange indeed that a group of billion-dollar corporations and special interest groups would seemingly “step up” on behalf of asbestos victims when the reason that these trust funds exist in the first place is because companies like Johns Manville prioritized their profits over people.

If the public doesn’t scrutinize big corporations and lobbyist organizations they will continue to use money, influence, and deception to bend the law in their favor. Tens of thousands of people have already suffered or died at the hands of corporations that pump asbestos-containing products into homes and workplaces. If advocates of these victims don’t react, thousands more will continue to die in the future.

The FACT Act is a deceitful bill that keeps money in the pockets of billionaires by pretending that corporations are the victims instead of those dying from cancer. Now is the time to keep pushing for justice, not the time to feel sorry for the perpetrators.

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