Asbestos News | Update on the Johnson and Johnson Talc Litigation

In a high-stakes legal saga, medical and biotech company Johnson & Johnson (hereafter J&J) is facing mounting scrutiny over allegations of manipulating bankruptcy laws to evade billions in talc-related liabilities. Here’s what you should know about the latest development in J&J’s ongoing asbestos litigation.

Understanding the Texas Two-Step

The “Texas Two-Step” refers to a controversial legal strategy where a company, in this case J&J, transfers liabilities related to a particular issue, such as talc litigation, to a subsidiary. This subsidiary then files for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code. The goal is to shield the parent company from the liabilities associated with the subsidiary’s debts or legal claims, allowing it to potentially negotiate settlements or restructure debt more favorably. This strategy has been criticized for its potential to delay justice for claimants and for its perceived manipulation of the bankruptcy process.

J&J’s First Tango with the Texas Two-Step

J&J notably utilized the Texas Two-Step in 2021 with the formation of LTL Management, LLC. This subsidiary promptly assumed responsibility for more than 40,000 asbestos injury claims linked to J&J’s talc-based products before proceeding to file for Chapter 11 bankruptcy. However, recent judicial scrutiny cast doubt on the legitimacy of LTL’s bankruptcy filing, particularly given that J&J provided substantial financial backing amounting to $61.5 billion. 

Court and public scrutiny has underscored the controversial nature of the Texas Two-Step tactic, criticized for enabling corporations to sidestep accountability and delay legal resolutions while ostensibly restructuring for equitable settlements.

Threading the Needle Through a Loophole

Critics argue that the Texas Two-Step allows companies like J&J to exploit bankruptcy laws, leaving plaintiffs and creditors in limbo while the subsidiary attempts to reorganize. Moreover, the tactic has broader implications for legal proceedings and creditor rights, prompting ongoing debate and judicial review about its fairness and the true financial motivations behind such filings.

J&J’s Offensive Action

In response to ongoing litigation over asbestos-contaminated talc products, J&J recentl took a bold step by suing four doctors responsible for research linking talc to cancer. This move is seen as an aggressive strategy to undermine the scientific basis of future lawsuits against the company. J&J alleges that the doctors’ findings are compromised by conflicts of interest, as they have served as expert witnesses for plaintiffs in asbestos-related cases. 

This controversial legal maneuver is part of J&J’s broader efforts to mitigate financial losses, following their use of the Texas Two-Step. Critics argue that these actions aim to evade accountability rather than genuinely address concerns about asbestos exposure in their products, despite J&J’s claims of product safety.

The Latest Litigation Development

The multibillion-dollar legal battle surrounding J&J talc-based baby powders has escalated into a new arena, where lawyers are now focused on uncovering the strategic maneuvers employed by both sides. At the heart of the conflict are allegations from key plaintiffs’ attorneys that J&J engaged in illicit asset transfers and exploited bankruptcy procedures to mitigate liabilities arising from the extensive talc litigation. 

Plaintiffs’ lawyers are pushing for the invocation of the crime-fraud exception to attorney-client privilege, aiming to compel J&J to disclose internal communications among its top in-house attorneys. Such disclosures could potentially reveal J&J’s strategies to limit liability and resolve approximately 61,000 talc-related cases.

Court Skeptical of J&J’s First Settlement Offer

The lawsuit underscores the innovative tactics being utilized by both J&J and the plaintiffs as the company seeks approval for an $11 billion global settlement deal. 

Legal experts and insiders familiar with the proceedings suggest that these latest developments signal a heightened intensity among the major players, each striving to gain a decisive advantage in the ongoing legal saga. 

Bruce Markell, a former Nevada bankruptcy judge now teaching at Northwestern University, comments on the multifaceted nature of litigation strategies, noting that such tactics are often deployed to exert pressure and leverage during settlement negotiations.

One of the significant recent legal actions involves a putative class action filed by six plaintiffs’ firms in a New Jersey federal district court. This lawsuit represents clients who claim harm from asbestos-contaminated talc in J&J baby powder products, accusing the company of manipulating the U.S. bankruptcy process through unsuccessful Chapter 11 filings by an affiliate tasked with resolving the widespread litigation. 

Co-lead counsel from Beasley Allen and Ashcraft & Gerel are advocating for the removal of attorney-client privilege, which shields J&J from disclosing internal legal communications, while also seeking to halt J&J’s progression towards the global settlement through legal injunctions.

J&J Trying to Hide their Assets from the Victims

The crux of the plaintiffs’ argument hinges on allegations of fraudulent asset transfers orchestrated by J&J through entities like LTL Management and Kenvue Inc., the latter being a consumer health business that includes well-known brands such as Tylenol and Neutrogena. Legal scholars like Stephen Lubben from Seton Hall Law School view these accusations as substantial efforts to challenge J&J’s bankruptcy maneuvers, although the path to piercing attorney-client privilege remains formidable.

J&J Doubles Down on Dodging

The narrative of the legal dispute is further complicated by J&J’s response, which accuses plaintiffs’ firms of engaging in forum shopping and employing aggressive litigation tactics to secure advantageous legal outcomes. Erik Haas, J&J’s head of litigation, argues against the plaintiffs’ efforts to undermine the company’s settlement efforts, highlighting their alleged self-serving motivations and attempts to delay justice for affected parties. Haas and J&J have also sought to disqualify attorney Andy Birchfield Jr., a prominent figure in the litigation, citing conflicts of interest related to his involvement in crafting alternative settlement proposals.

As the legal battles unfold, plaintiffs continue to press for transparency and accountability, demanding access to depositions from J&J executives and in-house lawyers involved in prior bankruptcy proceedings. These efforts underscore the complexity and contentious nature of mass tort litigation, where resolution often hinges on intricate legal maneuvers and the interpretation of privileged communications in pursuit of justice and compensation for affected parties.

What Does This Mean?

The ongoing legal saga between J&J and plaintiffs’ attorneys illustrates a collision of strategic legal tactics, ethical scrutiny, and the quest for accountability in the face of complex mass tort litigation. The outcome of these legal maneuvers will not only impact the resolution of talc-related cases but also shape future practices in corporate liability and bankruptcy law.