Exclusive: Johnson & Johnson is considering refiling a talc-liability bankruptcy despite a federal appeals court defeat
The 3rd U.S. Circuit Court of Appeals Philadelphia rejected J&J’s gambit in January, ruling that the cash-flush subsidiary had no legitimate claim to bankruptcy protection because it wasn’t in financial distress. The appeals court pointed to a funding agreement between J&J and its subsidiary that provided the new unit with the financial wherewithal to settle lawsuits.
That threshold is required for a bankruptcy judge to approve settlements in cases involving asbestos, a higher bar than other kinds of Chapter 11 court restructurings. A December 2018revealed that J&J knew for decades about tests showing its talc sometimes contained carcinogenic asbestos but kept that information from regulators and the public. J&J has denied its talc contains asbestos.
Dropping the funding agreement, however, could create other legal problems for J&J. Judge Thomas Ambro, the appeals court judge who wrote the decision overturning J&J’s two-step, warned that, without the funding agreement, the company could run afoul of fraudulent-transfer prohibitions.
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