By Michael Francus (University of Virginia School of Law)
Editor’s note: Michael’s article is forthcoming in the 2027 Columbia Business Law Review.
In the world of mass torts, judges, scholars, and policymakers have long expressed concerns over how plaintiffs’ attorneys represent mass-tort victims. Their concerns center on how (and how much) those attorneys are paid, what incentives those attorneys have to represent their clients well, and how those attorneys are overseen.
Much scholarly work considers the descriptive, theoretical, and normative issues of mass-tort representation. Overwhelmingly, such scholarship centers on class actions and multidistrict litigation, which have long been the fora for resolving mass torts.
Today, though, mass torts are often being resolved in bankruptcy. Mass-tort class actions have dwindled. And though mass-tort multidistrict litigation persists, many mass-tort defendants have turned to bankruptcy courts as their forum of choice. Yet there is scant scholarship on how lawyers represent mass-tort victims in bankruptcy.
This Article offers a comprehensive account of how tort victims are represented in mass-tort bankruptcy. Drawing on hand-collected bankruptcy filings from 2013 to 2022, this Article examines all cases that included an official committee of tort victims (appointed to represent current mass-tort victims) or a future claims representative (appointed to represent mass-tort victims whose injuries have yet to manifest). Specifically, this Article details the selection, fee structures, compensation, and oversight of such mass representatives in mass-tort bankruptcies.
In doing so, this Article uncovers new dynamics in the world of mass torts, mapping out the networks of lawyers who represent tort victims in bankruptcy, detailing the evolving role of such lawyers, and identifying a series of shortcomings in the representation of mass-tort victims in bankruptcy. In run, this Article offers recommendations for judges presiding over mass-tort bankruptcies, with the aim of ensuring that mass-tort victims’ representatives have the right incentives and the right oversight to represent mass-tort victims well.
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