NEW YORK, Aug 12 (Reuters) - Johnson & Johnson ( JNJ )
has cleared a key threshold of support for its proposed
$6.5-billion settlement of tens of thousands of lawsuits
alleging its baby powder and other talc products caused cancer,
according to a Bloomberg report.
More than 75% of claimants voted in favor of the proposal,
according to Bloomberg, a hurdle J&J set for a third attempt at
placing a subsidiary in bankruptcy protection to resolve the
litigation.
Reuters has not independently verified the report, for which
Bloomberg cited sources familiar with the negotiations. Sources
who spoke with Reuters said the votes are still being tallied.
J&J spokesperson Clare Boyle said the company could not
comment as the vote tally was not final. The company has
previously expressed confidence that its settlement proposal
would ultimately win enough support from plaintiffs to proceed.
J&J faces lawsuits from about 61,000 claimants who alleged
that its baby powder and other talc products were contaminated
with asbestos and caused ovarian and other cancers. J&J denies
the allegations and has said that its products are safe.
The company set the 75% vote percentage, matching a
provision in U.S. bankruptcy law, as the benchmark to proceed
with another bankruptcy bid, which now is expected in the near
future. The deadline for casting votes was July 26.
After being rebuffed twice by federal courts, the healthcare
giant is attempting again to end the litigation in a so-called
"Texas two-step" bankruptcy.
The "two-step" maneuver involves offloading its talc
liability onto a newly created subsidiary, which then declares
Chapter 11. The goal is to use the proceeding to force all
plaintiffs into one settlement - without requiring J&J itself to
file bankruptcy.
But the company needs the votes of 75% of claimants before
the subsidiary can ask a bankruptcy judge to impose the deal on
all of them.
Bankruptcy judges can enforce global settlements that
permanently halt all related lawsuits and forbid new ones.
Outside of bankruptcy, any settlement J&J reached with some
clients would still leave holdouts or future plaintiffs with the
right to sue - and leave the company exposed to potential
multibillion-dollar verdicts that encouraged it to use a
two-step in the first place.
The company has been engaged in a bitter fight with lawyers
opposing its third attempt to settle the litigation through this
maneuver.
Andy Birchfield, who represents plaintiffs opposed to the
settlement, called J&J's voting process a "fake bankruptcy
election" that would not stand up in court.
"No matter what tally is announced, I expect it will be
challenged and eventually rejected so that juries can decide
what to do about J&J's egregious conduct," Birchfield said.
J&J's third attempt at a bankruptcy settlement differs from
its previous efforts in part because it focuses only on ovarian
and other gynecological cancer claims, building on J&J's
previous settlements with state attorneys general and people who
had sued after developing mesothelioma, a rare form of cancer
linked to asbestos exposure.
J&J's bankruptcy strategy still faces legal hurdles. The
Supreme Court recently ruled in Purdue Pharma's bankruptcy to
narrow the ability of courts to stop lawsuits against people and
companies like J&J that are not bankrupt without the consent of
the people who have sued.
J&J has said the Purdue ruling does not affect its
settlement proposal because U.S. bankruptcy law includes
explicit legal protections for asbestos defendants that have not
filed for bankruptcy. J&J has said it qualifies for those
protections because the lawsuits generally allege that the talc
used in its products was mined from underground mineral deposits
that also contained asbestos.
Some legal experts have said that J&J may not qualify for
those specific legal protections, which were written to
encourage settlement payments by insurers with indirect
liability for asbestos lawsuits.
J&J's strategy also faces opposition from plaintiffs'
attorneys who argue that its new settlement should fail for the
same reason as its first two. Courts rejected J&J's first two
talc bankruptcies because the subsidiary was not in "financial
distress," and J&J must overcome similar arguments in this
bankruptcy attempt.
Congress has proposed legislation that would limit the
ability of companies to shield themselves from lawsuits by
putting a shell company into bankruptcy.