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Apropos of anything else, J&J's handling of this has been despicable. Creating an entity specifically to pick up all of the related liabilities, picking up thos
by FireBeyond 3y ago
Apropos of anything else, J&J's handling of this has been despicable. Creating an entity specifically to pick up all of the related liabilities, picking up those liabilities and then (exact count may be wrong, but it's very close) literally filing for bankruptcy within the space of three days.
The Texas two-step, as it's called.
> In 2021, the company spun off its liabilities into a new entity called LTL Management under a strategy called the “Texas two-step.” That legal but controversial approach allows a solvent parent company to protect its assets by creating a subsidiary to hold its liabilities — and then having the new company declare bankruptcy, as LTL did just days after incorporating. Critics complain it’s an abuse of the bankruptcy system and allows companies facing massive litigation to dodge corporate responsibility.
> The Third Circuit Court of Appeals in Philadelphia dismissed the bankruptcy filing in January, finding LTL was not in financial distress and had “no valid bankruptcy purpose.”
> But hours after that case was formally dismissed in April, LTL filed for bankruptcy protection again, this time with a higher settlement proposal of $8.9 billion.
The fact that this is legal is such a mockery of consumer protection law.
- adastra22 3y agoHow is this effective? Wouldn’t the creditors pierce the corporate veil of this obviously transparent and self-serving setup?
- ozzydave 3y agoOP is spinning this as an attempt by J&J to escape paying out the liability which it wasn’t - Matt Levine (of course!) explains the details here: https://www.bloomberg.com/opinion/articles/2023-01-31/matt-levine-johnson-johnson-s-jnj-bankruptcy-didn-t-work?in_source=embedded-checkout-banner https://www.bloomberg.com/opinion/articles/2023-01-31/matt-l...
- wak90 3y agoIt's really odd that Bloomberg somehow reports that businesses abusing liability and bankruptcy laws is good, actually.
- medler 3y agoHe doesn’t say it’s good. He says that’s not what’s happening. If you think he’s wrong, please explain why. I genuinely would love to hear a well-reasoned critique of his analysis.
- flagrant_taco 3y agoFor one thing, this approach allows J&J to determine their maximum liability by only spinning off a certain amount to the subsidiary. It seems more fair to allow any and all claimants to sue J&J, or join together for a class action lawsuit. If the liabilities outstrip the company's total worth they can then go for bankruptcy of the entire J&J business and split assets proportionately across all liabilities.
- teraflop 3y ago> For one thing, this approach allows J&J to determine their maximum liability by only spinning off a certain amount to the subsidiary. Except that's not what they did. As the article explains, under the J&J agreement the "maximum liability" of the parent to the subsidiary was defined as the entire cash value of the parent.
- flagrant_taco 3y agoThat extra complexity adds room for plenty of loop holes. For example, by avoiding bankruptcy any existing liabilities aren't pooled and paid out proportionately along with the lawsuit proceedings. There is also nothing stopping the parent company from moving around funds to limit its "entire cash value".
- nl 3y ago> this approach allows J&J to determine their maximum liability by only spinning off a certain amount to the subsidiary. This is not what they did. To quote Levine's piece: > the box where J&J put its talc claims — could draw at least $61.5 billion from J&J to pay off those claims. The point here, the bankruptcy court concluded, was not to keep J&J from having to pay talc claims; the entire value of J&J’s consumer business was still on the line for those claims. For emphasis: the entire value of J&J’s consumer business was still on the line for those claims
- FireBeyond 3y agoThey still are. Just indirectly. They set the amount that they were willing to fund the subsidiary to the tune of. Must be nice, being able to say "Well, we'll give LTL $X and that can be used for settlements" while still throwing off nearly $X a year in profits, and 25% of X in shareholder dividends alone. Why should a company be allowed to set and determine how much liability it needs to pay?
- HDThoreaun 3y agoThis is the opposite of what happened. The court rejected their first two step attempt for not having a high enough payout and forced the subsidiary to have a 61.5 billion dollar payout maximum.
- thomastjeffery 3y agoThat's not what opposite means. What's you just described is the same exact thing with extra steps. Sure, it's a higher number than J&J asked for, but it's still a number!
- HDThoreaun 3y agoIt's the entire value of the business, there is no higher possible number.
- thomastjeffery 3y agoOf course there is! It's called "debt". The entire purpose of bankruptcy is to resolve debt you can't afford to pay.
- FireBeyond 3y agoAnd yet in every company where the Texas Two Step has been done, funding, "requirements" etc., have been blatantly disregarded and the only ones who have been screwed over are said claimants. Georgia Pacific, faced with several billions in claims, formed a subsidiary, and "pledged" to fund it to the full amount, starting with an initial $1B funding... Actually only funded it to the value of $175M. Less than $3,000 per claimant for mesothelioma. Less than $3,000... before claimant legal fees.
- justrealist 3y agoI mean it's clearly not working. There's nothing wrong with it being legal to shuffle assets among subsidiaries, as long as the veil is trivial to pierce when needed.
- akgoel 3y agoMatt Levine had a more charitable reading of the Texas Two-Step for J&J: https://www.bloomberg.com/opinion/articles/2023-01-31/matt-levine-johnson-johnson-s-jnj-bankruptcy-didn-t-work https://www.bloomberg.com/opinion/articles/2023-01-31/matt-l... The idea here was that a bankruptcy judge could more fairly distribute $61.5 billion dollars among claimants than having them sue J&J one at a time and getting uneven awards and costing everyone more lawyer hours.
- akira2501 3y agoIs a class action somehow impossible if they don't declare bankruptcy? Or they can't distribute money as easily as in a class action? The mechanics of this don't sound so absolutely necessary. Further, if your company produces products that kill or injure people, then why should we show any interest in maintaining that companies existence with odd legal hacks like this? Shouldn't they be disbanded, their assets sold, and new businesses allowed to exist in that space? What are we, in total, as a society, gaining by allowing this?
- jachee 3y agoPreserved Shareholder Value, and another middle finger from the Invisible Hand.
- nl 3y ago> Is a class action somehow impossible if they don't declare bankruptcy? Or they can't distribute money as easily as in a class action? The issue is that there might be multiple actions, and compensation might be used up byt the first one (eg, if the company was sent into bankruptcy by the first class action, then subsequent cases would be useless). This is a pretty reasonable argument IMHO. > Further, if your company produces products that kill or injure people, then why should we show any interest in maintaining that companies existence with odd legal hacks like this? This seems fairly debatable. J&J produces a lot of things that aren't talc, and it isn't like they are a cigarette company that knew the health risks. The risks from talc weren't known are are still debated, and it is a thing that has been used for thousands of years without known issues. Separately there's a good argument that keeping the company alive is better for those affected because it can fun ongoing liabilities.
- nl 3y agoHaving read the Matt Levine piece linked below (https://archive.is/KcL2P https://archive.is/KcL2P) I think that J&J did the right thing by attempting to use bankruptcy to organize payments. It was not avoiding liability at all. The court that dismissed the claim in general agreed with J&J's process, but said it was too early. Some key quote from Levine: > Juries in the US don’t like it when companies make products that kill people, and they tend to award enormous damages in cases like that. You multiply enormous damages by lots of cases, and you can easily end up with damages that exceed the value of the company. This can lead to unfair results, not for you — who cares about you — but for your victims: If a $1 billion company has killed 100 people, the first 10 who sue might get $100 million each of damages, leaving nothing for the remaining 90. > one pretty practical approach [to how to solve this problem] is bankruptcy. This, after all, is what bankruptcy is for: It is a system to make sure that creditors are all paid fairly out of the assets of a company, rather than paying some creditors a lot because they are early and others nothing because they are too late. > Bankruptcy courts are run by judges, who are bankruptcy professionals and who are used to dealing with companies that are, you know, bankrupt. They are used to not having enough money to go around; they are not temperamentally lavish with claims. > That is, LTL — the box where J&J put its talc claims — could draw at least $61.5 billion from J&J to pay off those claims. The point here, the bankruptcy court concluded, was not to keep J&J from having to pay talc claims; the entire value of J&J’s consumer business was still on the line for those claims. > But the Third Circuit disagreed, not because it thinks that the bankruptcy court is a bad place to resolve claims, and not because it thinks that J&J is avoiding liability with the Texas two-step, but because LTL isn’t bankrupt enough > In some ways this is a sensible reading of the bankruptcy code, but it is a little bit of a weird result. The point of doing any of this is to do it early, before you are out of money, so that you have plenty of money to pay all the claimants fairly. The court realizes this awkwardness > You don’t have to be insolvent to file for bankruptcy, and it is good to file early, but not prematurely. You want to file for bankruptcy while you still have plenty of money to pay claims, but not too much money. Read the whole article. It's good!
- darth_avocado 3y ago> This can lead to unfair results, not for you — who cares about you — but for your victims: If a $1 billion company has killed 100 people, the first 10 who sue might get $100 million each of damages, leaving nothing for the remaining 90. There is a valid point there, but one could argue it sets up unfair precedent for companies to act in bad faith if they can get off easy.
- photochemsyn 3y agoSounds like a good way for students facing huge student loan debt to discharge it in bankruptcy (just kidding, I know that's not something the US government would allow for anyone except well-connected corporate lobbyists etc.).
- throwawaymaths 3y agoIn a classic "what could possibly go wrong" move, long ago the federal government decided that you can't discharge student debt in bankruptcy, because if you could, then no one would lend education money (which is not collateralizable) and fewer people would go to college.
- themitigating 3y agoWhy wouldn't that apply to any credit that can be dismissed through bankruptcy?
- throwawaymaths 3y agoCollateral.
- selectodude 3y agoIt does. Credit cards are fully dischargeable. They also charge interest rates over 30 percent and won’t lend you $100,000 as an 18 year old with no income.
- ClumsyPilot 3y agowell maybe it's the wrong way to fund college
- jjallen 3y agoDo you really think companies can just avoid all of their liabilities two days before something bad happens and protect all of their assets? Bankruptcy law is hundreds of years old and is designed to protect creditors actually. That’s why there is a separate court to handle things and involved independent outsiders and judges that oversee things. It works and is used every time there is a financial crisis and thousands of times per day at the individual level. This sort of thing is specifically prevented and handled by a principle called fraudulent conveyance. This principle causes the court to look back in time to what the assets and liabilities were closer to the time of the start of the financial difficulties of the debtor. https://en.wikipedia.org/wiki/Fraudulent_conveyance https://en.wikipedia.org/wiki/Fraudulent_conveyance
- deleted 3y ago[deleted]
- iancarroll 3y agoIt is a pretty well-documented strategy that has been done several times: https://en.m.wikipedia.org/wiki/Texas_two-step_bankruptcy https://en.m.wikipedia.org/wiki/Texas_two-step_bankruptcy Not sure why you are treating it as an absurd concept.
- thfuran 3y agoIt is an absurd concept, but that unfortunately doesn't mean it's implausible.
- HDThoreaun 3y agoThe texas two step is not used to skirt liabilities. Its point is to consolidate all the cases in one court to reduce lawyer headaches and ensure each claimant is paid fairly.
- shkkmo 3y agoIt absolutely is used to reduce payouts. The fact that it limits the potential for very large punitive jury judgments is an argument made by supporters of the texas two step. It's basically a way of forcing everyone suing you into something akin to a class action, but one where you lose most of the legal rights you would have in a class actions.
- boobsbr 3y agoIt's a mockery of Justice.
- somenits 3y agoThis is the top-voted comment but as many of the other replies have pointed out, it's totally wrong outrage-bait. J&J, the parent company, is still ultimately liable for the full amount. The bankruptcy process just allows the courts to manage all of the claims together under the authority of one judge, instead of having different courts in every state issue incompatible damages awards in a race to judgment.
- aaomidi 3y agoSo they can pay off a single judge?
- wiz21c 3y agoand then it may be easier to convince one judge than a dozen. Isn't it ?
- boringg 3y agoPotentially but it's also a waste of our judicial system resources to have 12 identical cases going at the same time. However if you like paying for legal admin fees on both side its a great way to make sure lawyers get paid.
- naasking 3y agoThere's something to be said for making this as painful and costly as possible for J&J.
- dumpsterlid 3y ago[dead]
- tedivm 3y agoThere are other ways to accomplish this other than bankruptcy. Judges combine cases together all the time.
- samstave 3y agoI’ll assume “LTL” stands for “Limiting Talc Liabilities for Management”
- fennecfoxy 3y agoWell the fact that that is possible is just a reflection of most of the things wrong with the world. The rich get richer.
- deleted 3y ago[deleted]
- andsoitis 3y ago> The rich get richer. Reasons include, but are not limited to: a) compounding b) the right to bequeath your assets to your children c) if you're financially savvy you're more likely to educate your children about long-term wealth d) uneven effects of monetary policy (e.g. interest rates) etc.
- fennecfoxy 3y agoe) influencing law and legal/justice/political systems such that you get an unfair advantage, using the resources you already have, which was the entire point of my point; you think it's right that a company facing legal action for something they did wrong can spin off a subsidiary to take the fall, being made bankrupt in a laughably short time?
- pmarreck 3y agoIf I truly believed I was not guilty of an accusation that was ruining my reputation, you better believe I would use every means at my disposal to prevent my sinking under questionable data