In re Johns-Manville Corp.
36 B.R. 727 (Bkrtcy. N.Y. 1984)
Johns-Manville Corp. was (is) a Fourtune 500 company, and was deemed a paradigm of success in corporate America by the financial community. However, the company produced a product that was poison—asbestos. (Moreover, Manville knew it was poison, and had know it since the 1930s (http://www.ewg.org/research/asbestos-think-again/industry-hid-dangers-decades (Links to an external site.) and it hid the danger. By 1982 approximately 16,000 lawsuits were pending against Manville, and it anticipated a further crushing economic burden by the filing of an even more staggering number of suits by those who had been exposed but who will not manifest the asbestos-related diseases until some time during this future period (20-30 years as the disease manifests itself–“the future asbestos claimants”). Approximately 6,000 asbestos health claims were estimated to have arisen in only the first 16 months since the filing date. The burden was compounded by the insurance industry’s general disavowal of liability to Manville on policies written for this very purpose.
JM petitioned for a pre-emptive bankrupcy under Chapter 11; attorneys representing some of the people sickened by JM’s product moved to dismiss the petition.
Can JM pre-emptively declare bankruptcy and discharge future cases? Why? or Why Not?
1. What did Manville want to do here, and why? (Analyze the purpose of the BK declation and the reason behind it.)
2. How does this case demonstrate the fundamental purpose of Chapter 11 as opposed to Chapter 7 BK filings?
3. The historical background here is that Manville knew from at least 1930 that asbestos—used in many industrial applications—was a deadly carcinogen, and it worked diligently for decades to conceal and obfuscate the fact. What “good faith” argument was raised by the movants in this case?
Case Study Directions:
Analyzing the Case above give background information describing bankruptcy, types of bankruptcies, and the purpose of bankruptcy filings.
Provide a scholarly argument on the issue: Can JM pre-emptively declare bankruptcy and discharge future cases? Why? or Why Not? You also need to provide analytical and critical responses to the three (3) Case Questions listed above.