The Brief Case: DRI Committee News

Insurance Law: Covered Events

The Question of Whether the “Follow the Fortunes” Doctrine Can Be Implied in a Reinsurance Agreement Becomes Even Murkier

By Robert A. Whitney 

Edited by Regen O'Malley, Of Counsel, Gordon Rees Scully Mansukhani LLP

The “follow the fortunes” doctrine - also sometimes referred to as the “follow the settlements” doctrine – means that a reinsurer is generally bound by the claims handling decisions of its reinsured – or cedent - as long as there is no evidence of fraud, collusion with the insured, or bad faith on the part of the reinsured.  It is a long-established principle that a reinsured must have the ability to make good faith underlying claims handling decisions – including the settlement of claims - without being concerned that it will have to relitigate those same decisions with its reinsurer.

Over the years, courts and arbitration panels have applied this doctrine by holding that a reinsurer is bound by the reinsured's decisions to pay settled claims where the decision was made reasonably and in good faith.  Although a reinsurer may inquire into the results of coverage disputes between reinsureds and their insureds, a reinsurer may not conduct a de novo review of these results.  As a result, by preventing a court or arbitration panel from conducting a de novo review of a cedent’s claims handing decisions, the follow the fortunes doctrine requires a reinsurer to reimburse the reinsured for any payouts or settlements made to its insured unless the reinsurer can prove that the reinsured acted in bad faith or did not conduct a reasonable investigation of the underlying claim. 

The issue of whether the follow-the-fortunes doctrine really exists in those circumstances where there is no explicit follow-the-fortunes provision in the reinsurance agreement has been the subject of much examination.  While some early decisions and commentary seemed to indicate an unwillingness to read follow-the-fortunes provisions into reinsurance contracts where such provisions were absent, the more recent trend has been to suggest that the follow-the-fortunes doctrine should apply to all reinsurance agreements, even where the agreements did not contact an express follow-the-fortunes provision.  A desire to read into a reinsurance agreement the follow-the-fortune doctrine even where it is not contained in the contract language, stems from the long held belief that the follow-the-fortunes doctrine embodies the very basis of the special relationship that has long been seen to exist between a cedent and a reinsurer, and that special relationship exists even where there is no written embodiment contained in the agreement between the two parties.  

The argument for reading a follow-the-fortunes clause into a reinsurance agreement even where there wasn’t one, was not found to be compelling by the Eleventh Circuit Court of Appeals in its recent decision in Public Risk Management of Florida v. Munich Reinsurance America, Inc., 38 F.4th 1298 (11th Cir. 2022).  In that decision, the Eleventh Circuit had examined a case in which a cedent claimed that its reinsurer had a duty to follow its fortunes and reimburse it for a settlement and defense costs although the reinsurance contract did not contain an explicit follow-the-fortunes clause, and refused to infer a “follow the fortunes” clause into a treaty.  See Sharon D. Stuart, ”Eleventh Circuit Reiterates Uphill Battle for Cedents Seeking to Imply Follow-the-Fortune Clauses in Reinsurance Contracts,” DRI The Brief Case, October 2022.

Not long after the Public Risk Management decision was issued, on February 21, 2023, the United State District Judge Myron H. Thompson of the Middle District of Alabama, in Alabama Municipal Insurance Corp. v. Munich Reinsurance America, Inc., No. 20-300, slip op. (M.D. Ala. Feb. 21, 2023), 2023 U.S. Dist. LEXIS 28240, a court within the Eleventh Circuit, had cause to look at a dispute over the coverage available under a reinsurance agreement that also did not contain a follow-the-fortunes clause.  

In Alabama Municipal Insurance Corp., the District Court ruled in favor of the defendant reinsurer Munich Reinsurance America Inc. (“Munich”) on its motion for summary judgement, in an action concerning certain payments that were made by the plaintiff Alabama Municipal Insurance Corp. (“AMIC”), to its insured, the town of Spanish Fort, Alabama (“Spanish Fort” or “town”), that were subsequently ceded to Munich under certain treaties.  The Court held that Munich’s liability to AMIC under respective 2009 and 2014 reinsurance treaties was governed by AMIC’s underlying coverage obligations to its insured, and that it was the scope of the underlying insurance policy between AMIC and its insured that was the determinative question for the Court to resolve.  

In order to resolve that question, the District Court looked to see how the Alabama Supreme Court applied the "trigger of coverage” coverage rule in a property damage case.  Tellingly, the issue of whether Munich was obligated to “follow the fortunes” of AMIC’s underlying coverage decisions did not merit discussion by the Federal District Court. 

The action at issue involved disputes between AMIC and Munich over assertions that each party failed to honor its obligations to the other under a series of reinsurance treaties.  Several of the disputes also involved competing interpretations of AMIC’s underlying insurance contracts with its clients, which bound Munich under the terms of the reinsurance treaties.  AMIC asserted five breach-of-contract claims and sought compensatory damages and pre-judgment interest as remedy. Munich denied that it had breached any treaties.  This action was before the court on Munich’s motion for summary judgment on one of AMIC’s breach-of-contract claims:  the claim arising out of AMIC’s insurance policy with Spanish Fort.  

The Court noted that AMIC was a non-profit insurance company wholly owned by Alabama municipalities and regulated by the Alabama Department of Insurance.  It was chartered to insure Alabama’s cities, towns, and subsidiary corporate entities, including bus services and police forces.  Munich was a national provider of property and casualty reinsurance, and for at least ten years, between 2005 and 2015, AMIC and Munich entered into annual reinsurance agreements, formally known as “Casualty Excess of Loss Reinsurance Agreements,” or treaties, wherein Munich took on a portion of AMIC’s risk in exchange for a portion of the premiums AMIC received from its insured clients.  All of the underlying incidents at issue in this case occurred during that 10-year period. 

The action began in May 2020, when AMIC accused Munich of five counts of breach of contract based on five insurance claims that AMIC had ceded to Munich between 2015 and 2018, none of which Munich agreed to reimburse in full.  Munich denied that it breached any of its treaties with AMIC and filed six counterclaims, seeking declaratory relief regarding the interpretation of other treaties between Munich and AMIC and other contracts held by AMIC with its insured clients.  Munich then filed a motion for summary judgment on all eleven claims and counterclaims. However, only one of AMIC’s claims was before the Court on the motion for summary judgment – the one arising out of its policy with Spanish Fort. 

As set forth in the Court’s decision, the facts underlying the Spanish Fort claim were as follows.  In March 2009, a major rain event resulted in the collapse of drainage systems, culverts, and catch basins in Spanish Fort.  This collapse led to a partial erosion of the bluffs upon which a subdivision was built.  In response to the collapse and erosion, property owners filed two lawsuits against the town (the “Kessler lawsuit” and the “Amburgey lawsuit”), both alleging that the town’s negligent maintenance of the drainage system had resulted in the continuing erosion of the bluff and a de-stabilization of the bluff in its entirety.  At the time the lawsuits were filed, Spanish Fort held a commercial general liability policy with AMIC.  AMIC and Munich do not dispute that the initial Kessler and Amburgey lawsuits against the town triggered AMIC’s coverage obligations under the terms of 2009 policy. 

In 2013, after several years of litigation, a jury awarded the homeowners in the Kessler lawsuit $1,335,800 against Spanish Fort, which was later remitted to $500,000 under a statutory tort cap.  The trial court in that underlying action also ordered the town to repair the bluffs.  Separately, the Amburgey lawsuit was settled in March 2014 for $75,000.  In April 2014, one month after the Amburgey lawsuit was settled, Spanish Fort experienced another major rain event, and the bluffs further eroded, leaving the homes of the Kessler plaintiffs in “imminent danger” of collapse.  In opposing Munich’s summary judgment motion, AMIC argued that the 2009 erosion and the 2014 erosion have “only one cause,” namely, the alleged negligent maintenance of the drainage system by Spanish Fort, which set this sequence of events in motion.  Munich disagreed, arguing that the 2009 erosion was the result of the 2009 rain event, and that the 2014 erosion was attributable to the entirely separate 2014 rain event.  

In the summer of 2014, the Kessler plaintiffs entered into a new round of mediation with Spanish Fort, arguing that the injunctive relief provided by the first lawsuit was not enough to provide a remedy for the new damage.  The parties reached a settlement in which the homeowners agreed to release all claims surrounding the bluff, including future litigation.  In exchange, AMIC agreed to satisfy the original $500,000 judgment and pay an additional $350,000. 

The town also agreed to pay an additional $473,000 to resolve the injunction and take physical possession of the properties at issue.  AMIC combined its “Ultimate Net Loss” regarding all of these events and all related litigation into one single claim, which it submitted to Munich under the 2009 reinsurance treaty, for the amount of $906,798.  In response to this bill, Munich agreed to pay $544,395.12, calculated as follows: Kessler lawsuit - $500,000; Amburgey settlement - $75,000; and other unspecified costs accrued during litigation - $319,395.12, with a subtotal of costs totaling $894,395.12.  Applying the retention amount under the treaty of $350,000, resulted in a total reimbursement amount of $ 544,395.  As such. Munich declined to pay $362,402.88 ($906,798 less $ 544,395.12) of the amount sought by AMIC under the 2009 treaty, arguing that these charges (which consisted of $350,000 for the 2014 cost mediation, and other charges) arose from a series of events and litigation that could not be ceded under the 2009 treaty.  

Munich argued that the costs of the 2014 settlement negotiations between Spanish Fort and the property owners were the result of further erosion damage that did not “occur” until 2014, and, further, that these separate damages constituted a separate “occurrence,” requiring an additional retention that applied under the 2014 treaty.  Munich agreed to pay the outstanding balance, less the obligatory $ 350,000 per-incident retention on AMIC’s part, under the 2014 treaty.

Because the parties had agreed that the dispute is governed by Alabama law, the Court stated that, in order to determine whether Munich was entitled to summary judgment on the Spanish Fort claim, the Court first had to examine Munich’s obligations to AMIC under the treaties between the parties.  The Court noted that under the 2009 treaty, Munich’s obligations with AMIC under it were as follows: “The Reinsurer agrees to indemnify the Company, on an excess of loss basis, for Ultimate Net Loss paid by the Company as a result of losses occurring under the Company’s Coverage Documents attaching during the term of this Agreement.”  The Court concluded that AMIC’s obligations pursuant to the underlying insurance policy between AMIC and its insured was the question upon which the case ultimately turned.  

The text of Spanish Fort’s insurance policy with AMIC reads, in relevant part as follows: “[AMIC] will pay those sums that the insured becomes legally obligated to pay as Damages because of Bodily Injury or Property Damage to which this insurance applies.”  The policy also limited coverage in that the insurance applied to property damage “only if ... the Bodily Injury or Property Damage occurs during the policy period.”  The Court held that this language was not ambiguous as written: it capped AMIC’s coverage obligations for the policy period to costs Spanish Fort was legally obligated to pay as a result of property damage that actually occurred during that period. 

The Court stated that AMIC’s arguments in opposition to summary judgment were not persuasive, and that even if the subdivision properties in Spanish Fort remained imperiled by the threat of continued erosion at the close of the 2009 policy coverage period, this was not enough to extend the coverage policy to property damage that did not actually “manifest” until five years later.  The Court noted that the gradual continuation of erosion over a period of five years, and any property damage resulting in separate lawsuits during that period, cannot rightfully override the plain text of the AMIC insurance policy. 

The Court stated that that the Alabama Supreme Court has consistently indicated that, where a policy explicitly restricts coverage to damage that “occurs during the policy period” - as was the case before it - later damage was not covered.  Specifically, the Court cited American States Ins. Co. v. Martin, 662 So. 2d 245, 250 (Ala. 1995), where the Alabama Supreme Court held that the language of similar policies at issue “clearly provide that an injury, and not an occurrence that causes an injury, must fall within the policy period for it to be covered.”  

The Court also cited to the Alabama Supreme Court’s holdings in State Farm Fire & Cas. Co. v. Gwin, 658 So. 2d 426 (Ala. 1995), and Liberty Mut. Ins. Co. v. Wheelwright Trucking Co. Inc., 851 So. 2d 466, 482 (Ala. 2002), in holding that the “plain language” reading of AMIC policy explicitly limited coverage to damage and injury occurring during the coverage period.  Because the Court noted that the sole question before it was the extent of coverage under the 2009 policy between AMIC and the town, the Court held that the unambiguous language of that policy did not cover the disputed damages that “occurred” after the end of the 2009 policy. 

In Alabama Municipal Insurance Corp., Munich argued that it was “undisputed” there was no specific “follow the fortunes” or “follow the settlements” provision contained in the 2009 treaty.  Munich further asserted that, even if the District Court in Alabama Municipal Insurance Corp. were to find that a “follow the fortunes” provision could be inferred in the reinsurance contract, nevertheless, the District Court should still rule in favor of Munich because there was no coverage existing as a matter of law under the reinsurance contract, citing Utica Mutual Ins. Co. v Fireman’s Fund Ins., 957 F.3d 337, 347 (2d Cir 2020), a case involving a dispute between an insurer and a reinsurer, held that a reinsurer cannot be held accountable for an allocation that is contrary to the express language of the reinsurance policy. 

Munich argued that in Utica Mutual, Fireman’s Fund had reinsured umbrella policies issued by Utica.  Utica had sought to have Fireman’s Fund pay for bodily injury claims even though those claims did not trigger the umbrella policies.  The Utica Mutual Court held that Fireman’s Fund had no obligation to pay because Utica’ allocation decision was directly contrary to the express terms of the Fireman’s Fund umbrella policies.  Munich noted that in the Utica Mutual case, the court held the insurer to the language of the treaty even though that reinsurance contract had a “follow the settlements” provision, which would arguably insulate some decisions of the insurer from question by the reinsurer.  

In contrast, AMIC, citing Unigard Security Insurance Co. v North River Insurance Co., No. 92, 79 N.Y.2d 576, 583 (1992), argued in its opposition to Munich’s motion for summary judgment: 1) that reinsurers are generally bound by the primary insurer’s settlement; 2)  that “the interests of a reinsurer and the ceding primary insurer with respect to a pending claim are generally identical”; and 3) “[t]he ‘follow the fortunes’ clause in most reinsurance agreements leaves reinsurers little room to dispute the reinsured’s conduct of the case.”  

As noted above, the Alabama Federal District Court in Alabama Municipal Insurance Corp., however, did not even mention the “follow the fortunes” doctrine in its decision, perhaps because of the recent decision by the Eleventh Circuit in Public Risk Management, where the Circuit Court had refused to infer a “follow the fortunes” clause into a treaty.  The Eleventh Circuit in Public Risk Management had declined to address whether a court might appropriately infer the follow the fortunes doctrine under other circumstances such as where the reinsurance agreement contained neither a “follow-the-fortunes” clause nor other language plainly inconsistent with the “follow-the-fortunes” doctrine.  Public Risk Management, 38 F.4th at 1311.  One such circumstance might be where a cedent seeks to infer a “follow the fortunes” clause into a certificate or treaty by use of evidence of the “custom and practice” of the parties to the reinsurance agreement.  

In North River Insurance Co. v. Employers Reinsurance Corp., 197 F. Supp. 2d 972 (S.D. Ohio 2002), for example, the Ohio Federal District Court, applying New Jersey law, found that while a “follow the fortunes” provision should not be implied into every reinsurance agreement as a matter of law, even in the absence of any ambiguity, “evidence of the situation of the parties and the surrounding circumstances and conditions is admissible in aid of interpretation.” Id. at 988.  This principle of looking to evidence of the “custom and practice” of the parties to the reinsurance agreement as to whether a “follow the fortunes” provision might be implied the reinsurance agreement, could be demonstrated, the Court stated, where there is established evidence of the parties’ intention, and the parties’ “intent may not be disregarded to create a new or better contract or to add to, subtract from, modify, or alter any terms of the agreement.” Id. at 988-89.

The Ohio District Court in North River also noted that any such alleged “custom and usage” must be established by “clear and explicit proof,” and must be “clearly established” and known to the parties or so notorious in the trade as to charge them with notice thereof.” Id. The Court had examined the reinsurance certificate at issue in the case and had determined that, on its face, the certificate contained no language which could reasonably be construed as a “follow the settlements” clause.  Id. at 990. The District Court noted, however, that while there was no ambiguity in that regard in the actual language of the certificate, in light of the fact that New Jersey law allowed the Court to look beyond the face of the contract to determine the intent of the parties, even in the absence of any ambiguity in the contract language, the Court determined that it would review the additional evidence bearing on intent which had been submitted by the parties. Id. at 990.

The North River Court thereupon considered an affidavit submitted by a former underwriter for the reinsurer, who opined that the “follow the fortunes” doctrine was “inherent” in all reinsurance relationships, and that this doctrine obligates the reinsurer to pay its share of all settlements made by the reinsured so long as those settlements are reasonable and in good faith. Id. The Court also considered an affidavit submitted from an expert that opined that according to the custom and practice of the business at the time this certificate was issued, reinsurers would expect to follow the settlements of insureds, even in the absence of an express “follow the settlements” clause, in the absence of fraud, collusion, bad faith, ex gratia payment or gross negligence in the handling of the claim, and would not require insureds to undergo a de novo proof of liability. Id. at 990-991.

The North River Court also considered the affidavit of another expert who opined that clauses such as “follow the settlements” are subject to negotiation in the reinsurance industry, and that they have the effect of waiving the reinsurer’s right to insist on proof of the reinsured’s liability. This expert further opined that no reinsurance “custom, usage, or practice” actually existed which implied a duty to “follow the settlements” in the absence of such a clause actually being present in the reinsurance contract. Id. at 991.

The North River Court also considered various treatises submitted by the parties whose authors gave conflicting opinions on custom and practice.  Based on the evidence submitted by the parties, the Court found that genuine issues of fact existed which precluded the award of partial summary judgment to either party on the issue of whether a “follow the settlements” clause should be read into the policy based on custom or practice in the industry. Id.

The Alabama District Court’s failure to even mention the “follow the fortunes” doctrine in Alabama Municipal Insurance Corp. may not be all that surprising given the differences between Alabama and New Jersey law.  Unlike the law in New Jersey, as noted in North River, Alabama does not appear to allow a court to look beyond the face of the reinsurance contract to determine the intent of the parties as to whether a “follow the fortunes” provision might be inferred, in the absence of any ambiguity in the contract language.  See Cain v. Saunders, 813 So.2d 891 (Ala. Civ. App. 2001) (holding that where the terms of a written settlement agreement are clear and unambiguous, the terms of that agreement may not be varied by the introduction of parol evidence regarding an alleged mutual mistake of fact).  In Alabama Municipal Insurance Corp., the Alabama District Court determined that under Alabama law, the reinsurance treaty was not “ambiguous.”  As such, the Court would not have considered any parol evidence of the “custom and practice” based on precedent.   

Nonetheless, in those jurisdictions where courts are willing, even in the absence of any ambiguity in the reinsurance agreement, to consider the custom and practice of the reinsurance business at the time the reinsurance agreement was issued, reinsurers might still be required to “follow the fortunes” of their cedents, even in the absence of an express "follow the fortunes" provision in the reinsurance agreement, depending upon the situation of the parties and the surrounding circumstances and conditions under which the reinsurance agreement was formed.  In such cases, courts and arbitration panels might be more inclined to infer a follow-the-fortunes provision even in the absence of an express "follow the fortunes" provision in the reinsurance agreement and thereby recognize the long-established special relationship that exists between a reinsurer and cedent that provides that a reinsured must have the ability to make good faith underlying claims handling decisions without relitigating those same decisions with its reinsurer.

Robert A. Whitney, a partner in the law firm Sulloway & Hollis in its Insurance and Reinsurance Practice Group in Boston, was previously the President of the Massachusetts Insurance & Reinsurance Bar Association. Rob is also a member of DRI’s Reinsurance SLG of the Insurance Law Committee, and a member of the Boston Bar Association’s Insurance and Reinsurance Committee of the Tort and Insurance Section. Rob was previously Deputy Commissioner and General Counsel of the Massachusetts Division of Insurance, and was Corporate Secretary of several insurance companies. Rob is also an ARIAS-US Certified Insurance and Reinsurance Arbitrator.  Rob was recently selected by Boston Magazine as a “2022 Top Lawyer in Boston in Insurance,” and was also selected as one of the “2023 Best Lawyers in America® in Insurance.

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Product Liability: An Update from the PLC

Fitness Wearables as Digital Evidence: Transforming More Than Waistlines

By Lars Daniel 

In today's modern world, fitness wearables are a valuable tool for anyone wanting to improve their performance and well-being and monitor their physical activity by offering a range of benefits.  The technology behind these devices is rapidly advancing, with sophisticated sensors that can track various biometrics, such as heart rate, sleep cycles, body temperature, respiration, and more.  All this information can be used to reveal actionable insights into our health and well-being, helping us better understand how we're performing when exercising and over time. 

The increased popularity and sophistication of fitness trackers increase their value as a potential source of digital evidence in many types of investigations, as these devices can provide forensic artifacts of when and wear something happened with surprising detail.  For example, in a personal injury case, data from a wearable might show whether a person was engaged in an activity that contributed to their injury, or it could be used to refute an alibi based on recorded and recovered location data. 

In some cases, fitness wearables might even be able to detect when an accident is about to happen and send an alert to the user or emergency contacts.  Many of these devices already record medical events.  This type of data could inform investigators of a motor carrier accident in that the driver was not distracted by their phone but suffered a medical event, like a stroke.  

The data that is collected by fitness wearables can be divided into two main categories. The first is biometric data, data derived from the physical characteristics and behavioral traits of an individual. Second is location data, as fitness wearables utilize built-in location tracking technology, like GPS, and often compile that data with location data from the mobile phone associated with the fitness wearable.  

Biometric Data

Biometric data, such as heart rate, calorie burn, and sleep patterns, recorded by fitness wearables can provide insight into a person's health over time and during acute events.  This data can be used in legal proceedings as evidence to support claims of health changes or inconsistencies. When supported by other evidence, such as medical reports or expert testimony, biometric data can create a more accurate depiction of what occurred.  Utilizing digital forensic experts to collect the data in a way that protects it from spoliation and providing that data to the appropriate subject matter expert in a usable format is becoming more common.  For example, an expert in digital forensics could collect the data from a fitness wearable device and then provide the heart rate data to a cardiologist who can give an expert opinion.  

Biometric data from fitness wearables can be used in fraud investigations in several ways.  For example, comparing the data collected from activity trackers of a claimant's declared daily activity with their actual activity as recorded by their wearable device.  This helps insurers to detect fraudulent claims that involve physical activities which contradict declared levels of activity.  Furthermore, biometrics, such as heart rate and galvanic skin response (GSR, a measuring technique for the electrical conductance of the skin used to measure stress and anxiety levels), can be compared against declared levels of stress or anxiety, allowing for the detection of false claims for physical and psychological injuries.

Location Data

Location data, such as timestamps, speed, and movement patterns, can all be used in conjunction with other evidence to establish a stronger case narrative.  Location data recorded by fitness wearables can provide forensically reliable evidence useful for litigation.  This data can be used to corroborate alibis, prove the presence or absence of a person at a scene, or refute the veracity of an individual's testimony. 

If a claimant has stated that they are not physically active but then their fitness wearable shows regular running activity, this could indicate fraud.  As an example, an insurance company's Special Investigation Unit (SIU) reached out to Envista’s digital forensics experts with suspicions that the claimant was being dishonest about a specific incident, and what we uncovered proved their doubts correct.  Despite the claimant insisting they had stayed in one place all night, data from their fitness wearable revealed them having traveled nearly six miles over the period in question. 

Data Repositories

This talk of location and biometric data is important to note, but it begs the questions, “how do I get my hands on this data?” and “what about deleted data?”  

Fitness wearables collect data from their users regarding their activity levels, location, and other metrics.  This data is stored on the device's internal memory and then transmitted to data repositories, such as online accounts and mobile phone applications.  This means that even if the device is damaged, deleted data can still be recovered from the cloud, the mobile phone associated with the device, or the fitness wearable itself by utilizing digital forensic techniques, such as chip-off forensics and forensic extractions.  

Even if the device is operational and without damage, there can be deleted data residing in storage areas on the wearable or mobile device associated with it.  In other words, a digital forensic expert can utilize specialized forensic hardware and software to recover data that has been "lost" in the normal operation of the device or deleted intentionally or unintentionally by the claimant. 

The Future of Lifestyle Analysis

As we have seen, location and biometric data collected from fitness wearables are not limited to physical activity alone.  They provide vital insight into many other aspects of health, such as sleep quality and duration, heart rate variability (HRV), caloric intake/burn rate, and more.  It is common for a user to have months' or years' worth of data recorded by fitness wearables existing in their online accounts and mobile applications.  

The extensive data recorded about a user over long periods make this data of special interest when performing a lifestyle analysis.  A lifestyle analysis investigation is a type of investigation which looks at a person's daily activities and habits as evidence. Call detail records (CDRs), a kind of super phone bill, from mobile phones are often used to aid in these investigations, as they can provide useful insights into a person's whereabouts and activities over time.  These records are used to link together pieces of evidence and better understand the custodian's behavior and relevant patterns of activity. 

Compared to the data collected by fitness wearables, current lifestyle analysis investigations using CDRs alone is rather rudimentary.  Fitness wearable data can provide a more detailed picture of an individual’s lifestyle and behavior, and when used in combination with other evidence, provides investigators with even greater insight into the custodian's activities, intentions, and state of mind.  

The Widespread of Fitness Wearables

Attorneys and claims professionals should be aware of the potential implications that fitness wearable data can have if used correctly. This type of evidence provides valuable insight into an individual's actions surrounding the event in question. It also has the potential to provide relevant data concerning their state of mind leading up to it.  

Digital forensic experts can help ensure that the data collected from fitness trackers and wearable technology devices are collected in a way that protects them from spoliation and can assist in making sense of the data by providing it to an appropriate subject matter expert in a usable format.  

As technology advances, fitness wearables will continue to become a larger part of our lives and provide increasingly useful evidence for investigations.  The widespread use of these devices means that more individuals are wearing them regularly than ever before, potentially turning small moments into tangible pieces of evidence that could prove crucial to resolving a case.

Lars Daniel is the Practice Leader of the Digital Forensics Division. He guides the growth and development of the practice, keeping Envista’s digital forensic capabilities on the cutting edge through a combination of technological solutions and the growth and development of world-class experts. Lars is the co-author of the book "Digital Forensics for Legal Professionals: Understanding Digital Evidence from the Warrant to the Courtroom," published by Syngess. He is also co-author of the book "Digital Forensics Trial Graphics: Educating the Jury Through Effective Use of Visuals," published by Academic Press. Lars has qualified as an expert witness and testified in both state and federal courts, qualifying as a digital forensics expert, computer forensics expert, cell phone forensics expert, video forensics expert, and photo forensics expert. He has testified for both the defense and prosecution in criminal cases and the plaintiff and defense in civil cases. Lars has trained thousands of attorneys and claims professionals with over 300 classes taught, providing CLE (Continuing Legal Education) and CE (Continuing Education) classes across the United States.  

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Trucking Law: In Transit

From the Chair

By Terrence Graves

Terrence Graves is a shareholder with Sands Anderson Marks & Miller PC and is Chair of the Trucking Law Committee.

2023 Trucking Litigation Essentials Seminar - Navigating the First 120 Days

By Patrick Foppe and Chris Cotter

Patrick Foppe, a partner at Lashly & Baer PC, is the 2023 Trucking Litigation Essentials Seminar Chair.

Chris Cotter of Roetzel & Andress is the 2023 Trucking Litigation Essentials Seminar Vice Chair.

Interested in joining the Trucking Law Committee? Click here for more information.

Young Lawyers: Raising the Bar

J&J Cannot Use Bankruptcy to Resolve Claims Related to Talcum Powder Products 

By Michael E. Tuttle, Esq.

A three-judge panel of the Third Circuit Court of Appeals issued a precedential, consolidated opinion in In re. LTL Management, LLC, Case: 22-2003; 22-2004; 22-2005; 22-2006; 22-2007; 22-2008 (3d Cir., 2023) on Jan. 30, 2023 (the “Decision”) on an appeal from the US Bankruptcy Court for the District of New Jersey, Case: 21-30589 (MBK). The Decision reverses the District Court and dismisses the bankruptcy filing which bars Johnson & Johnson companies from relegating thousands of plaintiffs into unsecured bankruptcy claimants.

The Texas Two-Step

In October 2021, Johnson & Johnson Consumer Inc. (“JJCI”), a wholly owned subsidiary of Johnson & Johnson (“J&J”), through a series of transactions and corporate restructuring, primarily under Texas state law, sequestered JJCI’s talc litigation liabilities into a newly formed entity, LTL Management LLC (“LTL”), while JJCI retained nearly all of the productive business assets. Immediately after its formation, LTL filed a petition for Chapter 11 protection which enacted an automatic of pending lawsuits and an injunction against future lawsuit against LTL.

JJCI relied on Texas statues governing corporate restructuring. Tex. Bus. Orgs. Code Ann. § 10.001 et seq authorizes a “divisional merger” which enables a legal entity to divide and allocate assets and liabilities between the newly established entities. Most importantly, the Texas statutes permit the newly established entities to be free of “[liabilities] for the debt or other obligation” allocated to any of the other newly established entities. Tex. Bus. Orgs. Code Ann. § 10.008(a)(4). The net result of this body of law, which has become colloquially known as the “Texas Two-Step,” was that LTL emerged with all of the talc litigation liabilities along with three interests: i) a revenue stream of royalty payments valued at $367.1 million; ii) $6 million in cash; and most significantly, infra, iii) a Funding Agreement granting LTL a right to compel JJCI to satisfy talc litigation costs, not to exceed approximately $61.5 billion. See Decision at 22-23 and 25 (the Third Circuit credited expert estimates that JJCI was valued at $61.5 billion in 2021). In the second step of the jig, LTL filed a petition for Chapter 11 relief which blanketed all existing talc litigation claims with an automatic stay and enjoined future claims. LTL’s bankruptcy filings stated that a bankruptcy trust would be established to “resolve all current and future talc-related claims.” Decision at 27.

Bona Fide Financial Distress or Tactical Litigation Advantage?

The Third Circuit laid bare its stance in broad stokes, that “access the Bankruptcy Code’s safe harbor is to meet its intended purposes. Only a putative debtor in financial distress can do so.” Id. at 18. Despite acknowledging that liability from talc litigation was a significant financial headwind on JJCI, insofar as “[JJCI] paid approximately $3.5 billion for talc-related verdicts and settlements,” in addition to “$1 billion in defense costs,” the Third Circuit nonetheless focused its analysis on whether LTL was directly threatened with sufficient financial distress to take cover in bankruptcy. Id. at 21.

Chapter 11 bankruptcy petitions are “subject to dismissal under 11 U.S.C. § 1112(b) unless filed in good faith.” Id. at 34; In re 15375 Mem’l Corp. v. BEPCO, L.P., 589 F.3d 605, 616 (3d Cir. 2009) (citing NMSBPCSLDHB, L.P. v. Integrated Telecom Express, Inc. (In re Integrated Telecom Express, Inc.), 384 F.3d 108, 118 (3d Cir. 2004)). The Third Circuit parsed “good faith” to sound in equity, such that the party seeking bankruptcy protection, “must act in conformity with the Code’s underlying principles.” See In re SGL Carbon Corp., 200 F.3d 154, 161-62 (3d Cir. 1999). The Court’s analysis zeroed in on “whether [the petition was] filed merely to obtain a tactical litigation advantage.” BEPCO, 589 F.3d at 618 n.8 (citing, SGL Carbon 200 F.3d at 165).

The Third Circuit parted with the Bankruptcy Court’s analysis and instead granted the Texas Two-Step full effect. Third Circuit acknowledged that “the financial state of LTL…should be tested independent of any other entity [JJCI or J&J]. That means we focus on its assets, liabilities, and, critically, the funding backstop it has in place to pay those liabilities.” Decision at 43. The Court baulked at assessing the financial condition of JJCI prior to the formation of LTL, in part because only LTL petitioned for bankruptcy protection and thus only LTL was subject to the Code’s good faith requirement. Id. at 44. “It strains logic then to say the condition of a defunct entity should determine the availability of Chapter 11 to the only entity subject to it. To do so would introduce uncertainty regarding how far back and to what entities a court can look when evaluating a debtor’s financial distress.” Id. at 45.

Although the Code does not require a finding of insolvency, SGL Carbon, 200 F.3d at 166 n.16, the Third Circuit found that LTL could not demonstrate a “financial distress,” and rejected arguments that the present and the estimated future liabilities from talc litigation seriously threatened to force it out of business. Pointing to LTL’s rights granted by the Funding Agreement, the Court noted “LTL had the right, [prior to] bankruptcy, to cause J&J and [JJCI], jointly and severally, to pay it cash up to the value of [JJCI] as of the petition date (estimated at $61.5 billion) to satisfy any talc-related costs.” Decision at 46. It was LTL’s right to payment from JJCI’s and J&J’s substantial war chest of $65.1 billion to compensate talc litigation plaintiffs that was the cornerstone of the Court’s finding that LTL was not in financial distress when it sought bankruptcy protection. “[LTL’s] right to cash that was very valuable, likely to grow, and minimally conditional.” Ibid. The Third Circuit noted that the Bankruptcy Court hardly considered the value of LTL’s payment right in its calculation of LTL’s financial distress. To put a succinct point on it, LTL’s funding backstop, in large part, caused the Third Circuit to “[dismiss] the bankruptcy filing of a company created to file for bankruptcy.” In this Decision, the Third Circuit has proclaimed that Chapter 11 protection should not be used to prop up a failing business model or used as a tactic to improve the bottom line of a company prone to significant financial outlays.

Toxic Tort Litigation, Generally

However, the Third Circuit’s Decision did not foreclose on the Code’s potential role in addressing talc litigation, “the takeaway here is that when financial distress is present, bankruptcy may be an appropriate forum for a debtor to address mass tort liability.” Id. at 41; cf. In re Johns-Manville Corp., 36 B.R. 727, 730 (Bankr. S.D.N.Y. 1984). The Third Circuit was simply not convinced that LTL was forced to seek Chapter 11 protection. Moreover, the Court was reminded that A.H. Robins Co. faced a similar deluge of mass tort product liability litigation with only $5 million in unincumbered funds; this painted a “financial picture…so bleak that financial institutions were unwilling to lend it money,” leaving A.H. Robins Co. “no choice but to file for relief under Chapter 11.” In re A.H. Robins Co., Inc., 89 B.R. 555, 558 (Bankr. E.D.V.A. 1988); Decision at 42.

A Message to Would-Be Texas Two-Steppers

As a cautionary tale to other entities facing similarly significant financial headwinds from mass tort litigation and are considering dancing to the tune of the Texas Two-Step, the Third Circuit pointed out that “J&J’s triple A-rated payment obligation for LTL’s liabilities, which it views as a generous protection it was never required to provide to claimants, weakened LTL’s case to be in bankruptcy.” Id. at 55. “Some may argue [the Texas Two-Step] to excise the liability and stigma of a product gone bad contradicts the principles and purposes of the Bankruptcy Code. But even that is a call that awaits another day and another case.” Thought the Third Circuit declined to rule on the overall legitimacy of the Texas Two-Step as it relates to relegating plaintiffs to unsecured bankruptcy claimants, the Court reiterated the necessity of demonstrating bona fide financial distress to be eligible to take cover from the Code. 

What’s Next?

LTL is now in the process of seeking en banc review by the Third Circuit to hear an appeal of the three-judge panel’s decision. Equitable & Efficient Resolution of All Current and Future Talc Claims, retrieved Jan. 31, 2023 https://ltlmanagementinformation.com/. If denied, LTL has the right to ask the US Supreme Court to hear its arguments that the Chapter 11 case should be allowed to proceed. Until then, it is likely that LTL, J&J, or JJCI will again be named in talc litigation complaints in jurisdictions throughout the county.

Michael E. Tuttle, Esq. is an Associate with Foley & Mansfield, PLLP in the NYC Office. His practice is exclusively devoted to defending businesses of all sizes against mass tort claims, toxic tort claims, and product liability claims as well as coordinating national defense strategies. Michael is a member of the Defense Research Institute and is a Vice Chair of The Brief Case Subcommittee.

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