Igniting a Dialogue on Mass Tort Bankruptcies

For the last few years, Professor Samir Parikh has focused on issues at the intersection of mass torts and bankruptcy, writing about cases involving Purdue Pharma, Johnson & Johnson, Boy Scouts of America, and USA Gymnastics.

“Mass tort bankruptcies present the most challenging legal issues in the country today. Unfortunately, there is very little scholarship attempting to improve the flawed resolution machinery,” says Professor Parikh. “I partnered with colleagues at Berkeley, Northwestern, and the University of Miami to organize a symposium that attempts to unpack all the misunderstood and overlooked issues in the mass tort debate.”

On February 25, Fordham Law Review hosted the symposium, Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy. The 1-day program brought together the preeminent jurists, academics, and practitioners in the field to explore normative solutions to improve victim recoveries.

Lewis & Clark Law Professor Robert Klonoff, acknowledged as an expert in class action litigation, attended as one of the panelists. “The entire conference was organized around Samir’s pathbreaking work, and Samir assembled some of the top experts in the country to discuss the intersection of bankruptcy and multidistrict litigation,” said Professor Klonoff. “The issues impact many high profile mass tort cases. Samir received rave reviews from all of the attendees.”

Professor Parikh has written extensively about mass tort bankruptcies, including Mass Exploitation, published by the University of Pennsylvania Law Review, The New Mass Torts Bargain, and Due Process Alignment in Mass Restructurings, both of which are forthcoming in the Fordham Law Review, and Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, which is forthcoming in the Northwestern University Law Review. He is regularly interviewed and quoted by national media, including the Wall Street Journal, The Financial Times, The Deal, Bloomberg Law, and Law360, and was recently asked to submit written testimony to Congress. A recent opinion in Law360 summarizes his idea that Bankruptcy Is Optimal Venue For Mass Tort Cases.

In The New Mass Torts Bargain, Professor Parikh explains the conundrum facing both the corporation and the victims in class action litigation. “Mass torts create a unique scale of harm and liabilities. Corporate tortfeasors are desperate to settle claims as a global settlement – and settlements are often elusive in these cases.

“Attempting to relieve stalled settlement negotiations, corporations such as Johnson & Johnson, Purdue Pharma, USA Gymnastics and Boy Scouts of America have filed for bankruptcy in order to bind victims through an ad hoc structure. The new bargain creates myriad risks, including insolvent settlement trusts and disparate treatment across victim classes.”

“The intersection of mass torts and bankruptcy has been ignored for decades,” said Professor Parikh. “At the symposium, we had an opportunity to start a dialogue between scholars, practicing attorneys, and judges. I believe that programs like this, along with thoroughly researched articles, can produce impactful proposals for policy makers.”