Dissonance and Distress in Bankruptcy and Mass Torts

By Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave
October 31, 2022

This Essay reviews the highly successful Fordham Law Review symposium entitled Mass Torts Evolve:  The Intersection of Aggregate Litigation and Bankruptcy, held in 2022.  The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both.  The symposium was successful because it brought these groups into conversation at a time when high-profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in.  The symposium was also successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.

This Essay makes two principal observations.  First, we document the different ways that MDL and bankruptcy players view their institutions.  Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values.  Civil litigators, including those who work in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication.  Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on.  Second, we demonstrate that criticisms of MDL’s treatment of individual plaintiffs—both in the symposium and outside it—are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts.  Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy.