LTL Management LLC v. ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 22-2003, 22-2004, 22-2005, 22-2006, 22-0007,
22-2008, 22-2009, 22-2010, 22-2011
________________
In re: LTL MANAGEMENT, LLC
Debtor
LTL MANAGEMENT, LLC
v.
THOSE PARTIES LISTED ON APPENDIX A TO
COMPLAINT
AND JOHN AND JANE DOES 1-1000
*OFFICIAL COMMITTEE OF TALC CLAIMANTS,
Appellant in case Nos. 22-2003, 22-2004 and 22-2005
*OFFICIAL COMMITTEE OF TALC CLAIMANTS;
PATRICIA COOK;
EVAN PLOTKIN; RANDY DEROUEN; KRISTIE DOYLE,
as estate representative of Dan Doyle; KATHERINE
TOLLEFSON;
TONYA WHETSEL, as estate representative of Brandon
Wetsel;
GIOVANNI SOSA; JAN DEBORAH MICHELSON-
BOYLE,
Appellants in case Nos. 22-2006, 22-2007 and 22-2008
ARNOLD & ITKIN LLP, on behalf of certain personal injury
claimants represented by Arnold & Itkin,
Appellant in case No. 22-2009
AYLSTOCK WITKIN KREIS & OVERHOLTZ PLLC, on
behalf of more
than three thousand holders of talc claims,
Appellant in case Nos. 22-2010 and 22-2011
*(Amended per Court’s Order dated 06/10/2022)
Appeal from the United States Bankruptcy Court
for the District of New Jersey
(District Court No.: 21-bk-30589; 21-ap-03032)
Bankruptcy Judge: Honorable Michael B. Kaplan
Argued September 19, 2022
Before AMBRO, RESTREPO, and FUENTES, Circuit
Judges
(Opinion filed: January 30, 2023)
2
Brad J. Axelrod
Skadden Arps Slate Meagher & Flom
One Rodney Square
920 North King Street, 7th Floor
Wilmington, DE 19801
Caitlin K. Cahow
Brad B. Erens
Jones Day
110 North Wacker Drive
Suite 4800
Chicago, IL 60606
Paul R. DeFilippo
Wollmuth, Maher & Deutsch
500 Fifth Avenue
12th Floor
New York, NY 10110
Kristen R. Fournier
King & Spalding
1185 Avenue of the Americas
New York, NY 10036
Kathleen A. Frazier
Shook, Hardy & Bacon
600 Travis Street
JP Morgan Chase Tower, Suite 3400
Houston, TX 77002
3
Gregory M. Gordon
Daniel B. Prieto
Mark W. Rasmussen
Amanda Rush
Jones Day
2727 North Harwood Street
Suite 600
Dallas, TX 75201
Robert W. Hamilton
Jones Day
901 Lakeside Avenue
North Point
Cleveland, OH 44114
James M. Jones
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Neal K. Katyal (Argued)
Sean M. Marotta
Hogan Lovells US
555 Thirteenth Street, N.W.
Columbia Square
Washington, DC 20004
4
Glenn M. Kurtz
Jessica C. Lauria
White & Case
1221 Avenue of the Americas
New York, NY 10020
James N. Lawlor
Joseph F. Pacelli
Wollmuth, Maher & Deutsch
500 Fifth Avenue
12th Floor
New York, NY 10110
C. Kevin Marshall
Jones Day
51 Louisiana Avenue, N. W.
Washington, DC 20001
John R. Miller, Jr.
Miller, Kistler, Campbell, Miller, Williams & Benson
124 North Allegheny Street
Bellefonte, PA 16823
Matthew L. Tomsic
Rayburn, Cooper, Durham
227 West Trade Street
Suite 1200
Charlotte, NC 28202
5
Lyndon M. Treeter
Wollmuth, Maher & Deutsch
12th Floor
New York, NY 10110
Counsel for Debtor-Appellee
Melanie L. Cyganowski
Adam C. Silverstein
Otterbourg
230 Park Avenue
29th Floor
New York, NY 10169
Angelo J. Genova
Genova Burns
494 Broad Street
Newark, NJ 07102
Jeffrey A. Lamken (Argued)
MoloLamken
600 New Hampshire Avenue, N. W.
The Watergate
Washington, DC 20037
Jonathan S. Massey
Massey & Gail
1000 Maine Avenue, S. W.
Suite 450
Washington, DC 20024
6
David J. Molton
Michael S. Winograd
Brown Rudnick
7 Times Square
47th Floor
New York, NY 10036
Counsel for Petitioner-Appellant Official
Committee of Talc Claimants
Matthew I.W. Baker
Genova Burns
494 Broad Street
Newark, NJ 07102
Sunni P. Beville
Shari I. Dwoskin
Jeffrey L. Jonas
Brown Rudnick
One Financial Center
Boston, MA 02111
Donald W. Clarke
Wasserman, Jurista & Stolz
110 Allen Road
Suite 304
Basking Ridge, NJ 07920
Daniel Stolz
Genova Burns LLC
110 Allen Road
Suite 304
Basking Ridge, NJ 07920
7
Jennifer S. Feeney
Otterbourg
230 Park Avenue
29th Floor
New York, NY 10169
Leonard M. Parkins
Charles M. Rubio
Parkins & Rubio
700 Milam Street
Pennzoil Place, Suite 1300
Houston, TX 77002
Robert J. Stark
Brown Rudnick
7 Times Square
47th Floor
New York, New York 10036
Counsel for Petitioner Official Committee of
Talc Claimants I
Jeffrey M. Dine
Karen B. Dine
Pachulski Stang Ziehl & Jones
780 Third Avenue
34th Floor
New York, NY 10017
8
Matthew Drecun
David C. Frederick (Argued)
Ariela Migdal
Gregory G. Rapawy
Kellogg Hansen Todd Figel & Frederick
1615 M Street, N.W.
Sumner Square, Suite 400
Washington, DC 20036
Laura D. Jones
Peter J. Keane
Colin R. Robinson
Pachulski Stang Ziehl & Jones
919 North Market Street
P. O. Box 8705, 17th Floor
Wilmington, DE 19801
Isaac M. Pachulski
Pachulski Stang Ziehl & Jones
10100 Santa Monica Boulevard
Suite 2300
Los Angeles, CA 00067
Counsel for Respondent Arnold & Itkin,
LLP
9
Samuel M. Kidder
Nir Maoz
Robert J. Pfister
Michael L. Tuchin
Klee, Tuchin, Bogdanoff & Stern
1801 Century Park East
26th Floor
Los Angeles, CA 90067
Paul J. Winterhalter
Offit Kurman
99 Wood Avenue South
Suite 302
Iselin, NJ 08830
Counsel for Respondent Aylstock, Witkin,
Kreis & Overholtz, PLLC
Allen J. Underwood, II
Lite, DePalma, Greenberg & Afanador
570 Broad Street
Suite 1201
Newark, NJ 07102
Counsel for Respondent DeSanto Canadian
Class Action Creditors
Mark Tsukerman
Cole Schotz
1325 Avenue of the Americas
19th Floor
New York, NY 10019
10
Felice C. Yudkin
Cole Schotz
25 Main Street
Court Plaza North, P.O. Box 800
Hackensack, NJ 07601
Counsel for Respondent Claimants
Represented by Barnes Law Group
Arthur J. Abramowitz
Alan I. Moldoff
Ross J. Switkes
Sherman, Silverstein, Kohl, Rose & Podolsky
308 Harper Drive
Suite 200, Eastgate Corporate Center
Moorestown, NJ 08057
Kevin W. Barrett
Maigreade B. Burrus
Bailey & Glasser
209 Capitol Street
Charleston, WV 25301
Thomas B. Bennett
Brian A. Glasser
Bailey & Glasser
1055 Thomas Jefferson Street, N.W.
Suite 540
Washington, DC 20007
11
Michael Klein
Evan M. Lazerowitz
Lauren A. Reichardt
Erica J. Richards
Cullen D. Speckhart
Cooley
55 Hudson Yards
New York, NY 10001
James C. Lanik
Jennifer B. Lyday
Thomas W. Waldrep
Waldrep, Wall, Babcock & Bailey
370 Knollwood Street
Suite 600
Winston-Salem, NC 27103
Kevin L. Sink
Waldrep, Wall, Babcock & Bailey
3600 Glenwood Avenue
Suite 210
Raleigh, NC 27612
Counsel for Respondent Official Committee
of Talc Claimants II
Lauren Bielskie
Jeffrey M. Sponder
Office of United States Trustee
1085 Raymond Boulevard
One Newark Center, Suite 2100
Newark, NJ 07102
12
Sean Janda (Argued)
United States Department of Justice
Appellate Section
Room 720
950 Pennsylvania Avenue, N. W.
Washington, D. C. 20530
Counsel for Amicus Appellant United States
Trustee
Cory L. Andrews
John M. Masslon, II
Washington Legal Foundation
2009 Massachusetts Avenue, N. W.
Washington, D. C. 20036
Counsel for Amicus Appellee Washington
Legal Foundation
R. Craig Martin
DLA Piper
1202 North Market Street
Suite 2100
Wilmington, DE 19801
Ilana H. Eisenstein
DLA Piper
1650 Market Street
One Liberty Place, Suite 5000
Philadelphia, PA 19103
13
Counsel for Amici Appellees United States
Chamber of Commerce and American Tort
Reform Association
Natalie D. Ramsey
Robinson & Cole
1650 Market Street
One Liberty Place, Suite 3030
Philadelphia, PA 19103
Counsel for Amicus Appellant Erwin
Chemerinsky
Jaime A. Santos
Benjamin T. Hayes
Goodwin Procter
1900 N. Street, N. W.
Washington, D. C. 20036
Counsel for Amici Appellees National
Association of Manufacturers and Product
Liability Advisory Council, Inc.
Sean E. O’Donnell
Stephen B. Selbst
Steven B. Smith
Herrick Feinstein
2 Park Avenue
New York, NY 10016
14
Counsel for Amici Appellants Kenneth Ayotte,
Susan Block-Lieb, Jared Ellias, Bruce A.
Markell, Yesha Yadav, Robert K. Rasmussen
and Diane Lourdes Dick
Peter M. Friedman
O’Melveny & Myers
1625 Eye Street, N. W.
Washington, D. C. 2006
Emma L. Persson
Laura L. Smith, Esq.
O’Melveny & Myers
2501 North Harwood Street
Suite 1700
Dallas, TX 75201
Daniel S. Shamah
O'Melveny & Myers
7 Times Square
Time Square Tower, 33rd Floor
New York, NY 10036
Counsel for Amici Appellees Samir Parikh,
Anthony Casey, Joshua C. Macey and Edward
Morrison
15
Glen Chappell
Allison W. Parr
Hassan A. Zavareei
Tycko & Zavareei
2000 Pennsylvania Avenue, N.W.
Suite 1010
Washington, DC 20006
Counsel for Amicus Appellant Public
Justice
Jeffrey R. White
American Association for Justice
777 6th Street, N.W.
Suite 200
Washington, DC 20001
Counsel for Amicus Appellant American
Association of Justice
Thomas A. Pitta
Emmet, Marvin & Martin
120 Broadway
32nd Floor
New York, NY 10005
Counsel for Amici Appellants Maria Glover,
Andrew Bradt, Brooke Coleman, Robin Effron,
D. Theodore Rave, Alan M. Trammell, and
Adam Zimmerman
16
_________________
OPINION OF THE COURT
__________________
AMBRO, Circuit Judge
Johnson & Johnson Consumer Inc. (“Old Consumer”),
a wholly owned subsidiary of Johnson & Johnson (“J&J”), sold
healthcare products with iconic names branded on consumers’
consciousness—Band-Aid, Tylenol, Aveeno, and Listerine, to
list but a few. It also produced Johnson’s Baby Powder,
equally recognizable for well over a century as a skincare
product. Its base was talc, a mineral mined and milled into a
fine powder. Concerns that the talc contained traces of
asbestos spawned in recent years a torrent of lawsuits against
Old Consumer and J&J alleging Johnson’s Baby Powder has
caused ovarian cancer and mesothelioma. Some of those suits
succeeded in verdicts, some failed (outright or on appeal), and
others settled. But more followed into the tens of thousands.
With mounting payouts and litigation costs, Old
Consumer, through a series of intercompany transactions
primarily under Texas state law, split into two new entities:
LTL Management LLC (“LTL”), holding principally Old
Consumer’s liabilities relating to talc litigation and a funding
support agreement from LTL’s corporate parents; and Johnson
& Johnson Consumer Inc. (“New Consumer”), holding
virtually all the productive business assets previously held by
Old Consumer. J&J’s stated goal was to isolate the talc
liabilities in a new subsidiary so that entity could file for
17
Chapter 11 without subjecting Old Consumer’s entire
operating enterprise to bankruptcy proceedings.
Two days later, LTL filed a petition for Chapter 11
relief in the Bankruptcy Court for the Western District of North
Carolina. That Court, however, transferred the case to the
Bankruptcy Court for the District of New Jersey.
Talc claimants there moved to dismiss LTL’s
bankruptcy case as not filed in good faith. The Bankruptcy
Court, in two thorough opinions, denied those motions and
extended the automatic stay of actions against LTL to hundreds
of nondebtors that included J&J and New Consumer. Appeals
followed and are consolidated before us.
We start, and stay, with good faith. Good intentions—
such as to protect the J&J brand or comprehensively resolve
litigation—do not suffice alone. What counts to access the
Bankruptcy Code’s safe harbor is to meet its intended
purposes. Only a putative debtor in financial distress can do
so. LTL was not. Thus we dismiss its petition.
I. BACKGROUND
A. J&J, Baby Powder, and Old Consumer
The story of LTL begins with its parent company, J&J.
It is a global company and household brand well-known to the
public for its wide range of products relating to health and well-
being. Many are consumer staples, filling pharmacies,
supermarkets, and medicine cabinets throughout the country
and beyond.
18
One of these products was Johnson’s Baby Powder, first
sold by J&J in 1894. It became particularly popular, being
used by or on hundreds of millions of people at all stages of
life.
J&J has not always sold baby powder directly, though.
In 1979, it transferred all assets associated with its Baby
Products division, including Johnson’s Baby Powder, to
Johnson & Johnson Baby Products Company (“J&J Baby
Products”), a wholly owned subsidiary (the “1979 Spin-Off”).
A series of further intercompany transactions in ensuing
decades ultimately transferred Johnson’s Baby Powder to Old
Consumer.
So since 1979 only Old Consumer and its predecessors,
and not J&J, have directly sold Johnson’s Baby Powder. LTL
maintains that the 1979 Spin-Off included an agreement
between J&J and J&J Baby Products that makes Old
Consumer, as successor to the latter, responsible for
indemnifying J&J for all past, present, and future liabilities
stemming from Johnson’s Baby Powder. Thus, according to
LTL, Old Consumer was liable for all claims relating to
Johnson’s Baby Powder, either directly or indirectly through
its responsibility to indemnify J&J.
B. Baby Powder Litigation
Talc triggered little litigation against J&J entities before
2010. There had been but a small number of isolated claims
alleging the products caused harms such as talcosis (a lung
disease caused by inhalation of talc dust or talc), mesothelioma
(a cancer of organ membranes, typically in the lungs,
associated with exposure to asbestos), and rashes. But trials in
19
2013 and 2016 resulted in jury verdicts for plaintiffs alleging
Old Consumer’s talc-based products caused ovarian cancer.
Despite the first resulting in no monetary award, and the
second being reversed on appeal, these trials ushered in a wave
of lawsuits alleging Johnson’s Baby Powder caused ovarian
cancer and mesothelioma.1 Governmental actions, including
the U.S. Food and Drug Administration’s finding of asbestos
traces in a sample of Johnson’s Baby Powder in 2019 and
Health Canada’s confirmation in 2021 of its 2018 finding of a
significant association between exposure to talc and ovarian
cancer, also heightened J&J’s and Old Consumer’s potential
exposure.
With the door wide open, over 38,000 ovarian cancer
actions (most consolidated in federal multidistrict litigation in
New Jersey) and over 400 mesothelioma actions were pending
against Old Consumer and J&J when LTL filed its Chapter 11
petition. Expectations were for the lawsuits to continue, with
thousands more in decades to come. The magnitude of the
award in one case also raised the stakes. There, a Missouri jury
awarded $4.69 billion to 22 ovarian cancer plaintiffs, reduced
on appeal to $2.24 billion to 20 plaintiffs who were not
dismissed. Ingham v. Johnson & Johnson, 608 S.W.3d 663(Mo. Ct. App. 2020), cert. denied, 141 S. Ct. 2716 (2021).
1
The talc litigation also involves claims regarding Shower to
Shower, a different talc-containing product initially produced
by J&J and later by Old Consumer and its predecessors. LTL
maintains intercompany transactions involving J&J and Old
Consumer ultimately made the latter responsible for all claims
stemming from Shower to Shower. Because the talc litigation
concerns mainly Johnson’s Baby Powder, for convenience
references herein to that name may include other talc products.
20
Yet other trials reaching verdicts for plaintiffs were not
so damaging to J&J entities. Since 2018, damages in all other
monetary awards to plaintiffs that were not reversed averaged
about $39.7 million per claim. Moreover, Old Consumer and
J&J often succeeded at trial. According to LTL’s expert, of 15
completed ovarian cancer trials, only Ingham resulted in a
monetary award for the plaintiffs that was not reversed; and of
28 completed mesothelioma trials, fewer than half resulted in
monetary awards for the plaintiffs that were not reversed (and
many of those were on appeal at the time of LTL’s bankruptcy
filing). In addition, Old Consumer and J&J often avoided trial
before bankruptcy, settling roughly 6,800 talc-related claims
for just under $1 billion in total and successfully obtaining
dismissals without payment of about 1,300 ovarian cancer, and
over 250 mesothelioma, actions.
Undoubtedly, the talc litigation put financial pressure
on Old Consumer. Before LTL’s petition, it paid
approximately $3.5 billion for talc-related verdicts and
settlements. It also paid nearly $1 billion in defense costs, and
the continuing run rate was between $10 million to $20 million
per month. LTL’s expert identified talc-related costs as a
primary driver that caused the income before tax of J&J’s
Consumer Health business segment (for which Old Consumer
was the primary operating company in the U.S.) to drop from
a $2.1 billion profit in 2019 to a $1.1 billion loss in 2020.
Old Consumer also faced billions in contested
indemnification obligations to its bankrupt talc supplier,
Imerys Talc America, Inc. and affiliates (collectively
“Imerys”), as well as parties who had owned certain of
Imerys’s talc mines. These remained after J&J’s settlement
21
proposal of about $4 billion to $5 billion in the Imerys
bankruptcy case—which, per LTL, had been tentatively agreed
by attorneys for talc plaintiffs—ultimately fell through by June
2021. An LTL representative testified that, if that proposal
succeeded, it would have settled (subject to an opt-out)
virtually all ovarian cancer claims in the multidistrict tort
litigation and corresponding additional claims against J&J
entities in the Imerys case. Old Consumer was also the target
of both state and federal talc-related governmental complaints
and investigations, as well as securities and shareholder
actions, that could result in their own financial penalties and
defense costs. LTL’s expert opined, and the Bankruptcy Court
accepted, that the total talc-related liabilities threatened Old
Consumer’s ability to make substantial talc-related payments
from working capital or other readily marketable assets while
funding its costs of operations (including marketing,
distribution, research and development).
Still, Old Consumer was a highly valuable enterprise,
estimated by LTL to be worth $61.5 billion (excluding future
talc liabilities), with many profitable products and brands. And
much of its pre-filing talc costs were attributable to the
payment of one verdict, Ingham, a liability J&J described in
public securities filings as “unique” and “not representative of
other claims.” App. 2692-93. Further, while it allocated all
talc-related payments to Old Consumer per the 1979 Spin-Off,
J&J functionally made talc payments from its accounts and
received an intercompany payable from Old Consumer in
return. Addressing the scope of its litigation exposure in an
October 2021 management representation letter to its auditors,
J&J valued its and its subsidiaries’ probable and reasonably
estimable contingent loss for products liability litigation,
including for talc, under Generally Accepted Accounting
22
Principles (“GAAP”), at $2.4 billion for the next 24 months.2
It also continued to stand by the safety of its talc products and
deny liability relating to their use.
Consistent with their fiduciary duties, and likely spurred
by the U.S. Supreme Court’s denial of certiorari in Ingham,
members of J&J’s management explored ways to mitigate Old
Consumer’s exposure to talc litigation. In a July 2021 email
with a ratings agency, J&J’s treasurer described a potential
restructuring that would capture all asbestos liability in a
subsidiary to be put into bankruptcy.
C. Corporate Restructuring and Divisional Merger
On October 12, 2021, Old Consumer moved forward
with this plan, undergoing a corporate restructuring relying
principally on a merger under Texas law. Counterintuitively,
this type of merger involves “the division of a [Texas] entity
into two or more new . . . entities.” Tex. Bus. Orgs. Code Ann.
§ 1.002(55)(A); see generally id. §§ 10.001 et seq. When the
original entity does not survive the merger, it allocates its
property, liabilities, and obligations among the new entities
according to a plan of merger and, on implementation, its
separate existence ends. Id. §§ 10.003, 10.008(a)(1). Except
as otherwise provided by law or contract, no entity created in
the merger is “liable for the debt or other obligation” allocated
to any other new entity. Id. § 10.008(a)(4). In simplified
terms, the merger splits a legal entity into two, divides its assets
2
Adam Lisman, assistant controller for J&J, suggested in his
trial testimony that it was J&J’s general policy to consider the
next 24 months when calculating contingent costs under
GAAP.
23
and liabilities between the two new entities, and terminates the
original entity. While some pejoratively refer to it as the first
step in a “Texas Two-Step” when followed by a bankruptcy
filing, we more benignly call it a “divisional merger.”
In our case, Old Consumer’s restructuring was designed
as a series of reorganizational steps with the divisional merger
at center.3 Ultimately, the restructuring created two new
entities, LTL and New Consumer, and on its completion Old
Consumer ceased to exist. It also featured the creation of a
Funding Agreement, which had Old Consumer stand in
momentarily as the payee, but ultimately (after some corporate
maneuvers4) gave LTL rights to funding from New Consumer
and J&J.
3
A slightly abbreviated summary of the many steps is as
follows. Old Consumer merged into Chenango Zero, LLC, a
Texas limited liability company and indirect, wholly owned
subsidiary of J&J (“Chenango Zero”), with Chenango Zero
surviving the merger. Chenango Zero (formerly Old
Consumer) effected a divisional merger under the Texas
Business Organizations Code by which two new Texas limited
liability companies were created, Chenango One LLC
(“Chenango One”) and Chenango Two LLC (“Chenango
Two”), and Chenango Zero ceased to exist. Chenango One
then converted into a North Carolina limited liability company
and changed its name to “LTL Management LLC.” Chenango
Two merged into Curahee Holding Company Inc., the direct
parent company of LTL (“Curahee”). Curahee survived the
merger and changed its name to “Johnson & Johnson
Consumer Inc.” (now New Consumer).
4
On the day of the divisional merger, the Funding Agreement
was executed by Chenango Zero (formerly Old Consumer), as
24
As the most important step, the merger allocated LTL
responsibility for essentially all liabilities of Old Consumer
tied to talc-related claims.5 This meant, among other things, it
would take the place of Old Consumer in current and future
talc lawsuits and be responsible for their defense.
Old Consumer also transferred to LTL assets in the
merger, including principally the former’s contracts related to
talc litigation, indemnity rights, its equity interests in Royalty
A&M LLC (“Royalty A&M”), and about $6 million in cash.
Carved out from Old Consumer and its affiliates just before the
divisional merger, Royalty A&M owns a portfolio of royalty
streams that derive from consumer brands and was valued by
LTL at approximately $367.1 million.
Of the assets Old Consumer passed to LTL, most
important were Old Consumer’s rights as a payee under the
Funding Agreement with J&J and New Consumer. On its
transfer, that gave LTL, outside of bankruptcy, the ability to
cause New Consumer and J&J, jointly and severally, to pay it
cash up to the value of New Consumer for purposes of
satisfying any talc-related costs as well as normal course
payee, along with J&J and Curahee, as payors. Then, per the
divisional merger, LTL was allocated rights as payee under the
Funding Agreement, replacing Chenango Zero. Chenango
Two (which assumed Old Consumer’s assets not allocated to
LTL) then merged into Curahee, one of the two original payors,
and became New Consumer.
5
LTL’s liability was for all talc claims except those where the
exclusive remedy existed under a workers’ compensation
statute or similar laws.
25
expenses. In bankruptcy, the Agreement gave LTL the right to
cause New Consumer and J&J, jointly and severally, to pay it
cash in the same amount to satisfy its administrative costs and
to fund a trust, created in a plan of reorganization, to address
talc liability for the benefit of existing and future claimants. In
either scenario, there were few conditions to funding and no
repayment obligation.6 The value of the payment right could
not drop below a floor defined as the value of New Consumer
measured as of the time of the divisional merger, estimated by
LTL at $61.5 billion, and was subject to increase as the value
of New Consumer increased after it.7
On the other side of the divisional-merger ledger, New
Consumer received all assets and liabilities of Old Consumer
not allocated to LTL. It thus held Old Consumer’s productive
business assets, including its valuable consumer products, and,
critically, none of its talc-related liabilities (except those
related to workers’ compensation). After this, the
organizational chart was reshuffled to make New Consumer
the direct parent company of LTL.
6
For LTL to require J&J and New Consumer to fund, certain
customary representations and warranties made by LTL must
be true, such as those addressing its good standing under state
law, the due authorization of the Funding Agreement, and the
absence of any required governmental approval. And LTL
must not have violated its covenants, specifically, that it will
use the funds for only permitted uses and materially perform
its indemnification obligations owed to New Consumer for all
talc liabilities as set out in the plan of divisional merger.
7
In each calculation of New Consumer’s value, its obligation
under the Funding Agreement is not included.
26
When the ink dried, LTL—having received Old
Consumer’s talc liability, rights under the Funding Agreement,
a royalties business, and cash—was prepared to fulfill its
reason for being: a bankruptcy filing. Meanwhile, New
Consumer began operating the business formerly held by Old
Consumer and would essentially remain unaffected (save for
its funding obligation) by any bankruptcy filing of LTL.
LTL became in bankruptcy talk the “bad company,” and
New Consumer became the “good company.” This completed
the first steps toward J&J’s goal of “globally resolv[ing] talc-
related claims through a chapter 11 reorganization without
subjecting the entire Old [Consumer] enterprise to a
bankruptcy proceeding.” App. 450 (Decl. of John Kim 6).
D. LTL Bankruptcy Filing and Procedural History
On October 14, 2021, two days after the divisional
merger, LTL filed a petition for Chapter 11 relief in the
Bankruptcy Court for the Western District of North Carolina.
It also sought (1) to extend the automatic stay afforded to it
under the Bankruptcy Code to talc claims arising from
Johnson’s Baby Powder asserted against over six hundred
nondebtors (the “Third-Party Claims”), including affiliates
such as J&J and New Consumer, as well as insurers and third-
party retailers (all nondebtors collectively the “Protected
Parties”), or alternatively, (2) a preliminary injunction
enjoining those claims. LTL’s first-day filings described the
bankruptcy as an effort to “equitably and permanently resolve
all current and future talc-related claims against it through the
consummation of a plan of reorganization that includes the
establishment of a [funding] trust.” App. 3799 (LTL’s Compl.
for Decl. and Inj. Relief 2); App. 316 (LTL’s Info. Br. 1).
27
A month later, the North Carolina Bankruptcy Court
issued an order enjoining Third-Party Claims against the
Protected Parties. But the order expired after 60 days and
would not bind a subsequent court. The next day, following
motions from interested parties (including representatives for
talc claimants) and a Show Cause Order, the Court transferred
LTL’s Chapter 11 case to the District of New Jersey under 28
U.S.C. § 1412. It rejected what it viewed as LTL’s effort to
“manufacture venue” and held that a preference to be subject
to the Fourth Circuit’s two-prong bankruptcy dismissal
standard8 could not justify its filing in North Carolina. App.
1515 (N.C. Transfer Order 10).
8
In the Fourth Circuit, a court can only dismiss a bankruptcy
petition for lack of good faith on a showing of the debtor’s
“subjective bad faith” and the “objective futility of any
possible reorganization.” Carolin Corp. v. Miller, 886 F.2d
693, 694 (4th Cir. 1989). The Bankruptcy Court in the District
of New Jersey described this as a “much more stringent
standard for dismissal of a case for lacking good faith” than the
Third Circuit’s test. App. 13 (Mot. to Dismiss Op. 13).
Perhaps not by coincidence then, debtors formed by divisional
mergers and bearing substantial asbestos liability seem to
prefer filing in the Fourth Circuit, with four such cases being
filed in the Western District of North Carolina in the years
before LTL’s filing. See In re Bestwall LLC, Case No. 17-
31795 (Bankr. W.D.N.C.); In re DBMP LLC, Case No. 20-
30080 (Bankr. W.D.N.C.); In re Aldrich Pump LLC, Case No.
20-30608 (Bankr. W.D.N.C.); In re Murray Boiler LLC, Case
No. 20-30609 (Bankr. W.D.N.C.).
28
With the case pending in the Bankruptcy Court for the
District of New Jersey, the Official Committee of Talc
Claimants (the “Talc Claimants’ Committee”) moved to
dismiss LTL’s petition under § 1112(b) of the Bankruptcy
Code as not filed in good faith. Soon after, Arnold & Itkin
LLP, on behalf of talc claimants it represented (“A&I”), also
moved for dismissal on the same basis. LTL opposed the
motions. Two other law firms—including Aylstock, Witkin,
Kreis & Overholtz, PLLC, on behalf of talc claimants
(“AWKO”)—joined the motions. For ease of reference, we
refer collectively to the Talc Claimants’ Committee, A&I, and
AWKO as the “Talc Claimants.”
At the same time, LTL urged the New Jersey
Bankruptcy Court to extend the soon-to-expire order enjoining
Third-Party Claims against the Protected Parties. The Talc
Claimants’ Committee and AWKO opposed this motion.
In February 2022, the Bankruptcy Court held a five-day
trial on the motions to dismiss and LTL’s third-party injunction
motion. It denied soon thereafter the motions to dismiss and
granted the injunction motion. App. 1, 57, 140, 194 (Mot. to
Dismiss Op.; Mot. to Dismiss Order; Third-Party Inj. Op.;
Third-Party Inj. Order).
In its opinion addressing the motions to dismiss, the
Bankruptcy Court applied Third Circuit case law and held that
LTL filed its bankruptcy petition in good faith. The Court
ruled the filing served a valid bankruptcy purpose because it
sought to resolve talc liability by creating a trust for the benefit
of claimants under § 524(g) of the Bankruptcy Code. At a high
level, that provision allows a debtor satisfying certain
conditions to establish, in a plan of reorganization, a trust for
29
the benefit of current and future claimants against which an
injunction channels all asbestos litigation.9 The Court
highlighted what it viewed as several benefits of claims
administration through a § 524(g) trust, compared to mass
asbestos litigation in trial courts, including the possibility it
could resolve claims more efficiently (from both a cost and
time perspective), ensure more balanced recoveries among
claimants, and preserve funds for future claimants.
The Court also held LTL was in financial distress. It
focused on the scope of litigation faced by Old Consumer (and
transferred to LTL), the historic costs incurred by Old
Consumer in connection with talc litigation, and the effect of
these costs on its business. It suggested that extrapolating this
talc liability into the future showed the “continued viability of
all J&J companies [was] imperiled.” App. 36 (Mot. to Dismiss
Op. 36). Yet it appeared to doubt LTL would completely
exhaust its payment right under the Funding Agreement. App.
35 (Id. at 35).
Finally, the Court determined LTL’s corporate
restructuring and bankruptcy were not undertaken to secure an
unfair tactical litigation advantage against talc claimants, but
constituted “a single integrated transaction” that did not
prejudice creditors and eliminated costs that would otherwise
be imposed on Old Consumer’s operating business had it been
subject to bankruptcy. App. 43 (Id. at 43). The Court
ultimately saw the bankruptcy forum as having a superior
ability, compared to trial courts, to protect the talc claimants’
9
Under certain conditions, the injunction can also channel to
the trust claims against third parties affiliated with the debtor.
11 U.S.C. § 524(g)(4).
30
interests, viewing this as an “unusual circumstance[]” that
precluded dismissal under 11 U.S.C. § 1112(b)(2). App. 13
(Id. at 13 n.8).
At the same time the Bankruptcy Court grappled
substantively with existing Circuit case law, it made much of
LTL’s novel design and the reasons for it. Its bankruptcy, the
Court believed, presented a “far more significant issue” than
equitable limitations on bankruptcy filings: “which judicial
system [better served talc claimants]—the state/federal court
trial system, or a trust vehicle established under a chapter 11
reorganization plan . . . [in Bankruptcy Court].” App. 12-13
(Id. at 12-13). Answering this question, it provided a full
defense of its “strong conviction that the bankruptcy court is
the optimal venue for redressing the harms of both present and
future talc claimants in this case.” App. 19 (Id. at 19).10
The Talc Claimants timely appealed the Bankruptcy
Court’s order denying the motions to dismiss. The Talc
Claimants’ Committee and AWKO also appealed the order
enjoining Third-Party Claims against the Protected Parties. On
request of the Talc Claimants, the Bankruptcy Court certified
the challenged orders to our Court under 28 U.S.C. § 158(d)(2).
10
In the separate opinion explaining its order preserving the
injunction of Third-Party Claims against Protected Parties, the
Court held that “unusual circumstances” warranted extension
of the automatic stay to those claims under Bankruptcy Code
§§ 362(a)(1) and 362(a)(3). It also held that Bankruptcy Code
§ 105(a) provided it independent authority to issue a
preliminary injunction enjoining them. App. 140 (Third-Party
Inj. Op.).
31
In May 2022, we authorized direct appeal of the orders under
the same statute.
The Bankruptcy Court had jurisdiction of the
bankruptcy case under, inter alia, 28 U.S.C. §§ 157(a) and
1334(a).11 We have jurisdiction of the appeals under 28 U.S.C.
§ 158(d)(2)(A).
II. ANALYSIS
A. Standard of Review
We review for an abuse of discretion the Bankruptcy
Court’s denial of the motions to dismiss the Chapter 11 petition
for lack of good faith. In re 15375 Mem’l Corp. v. BEPCO,
L.P., 589 F.3d 605, 616 (3d Cir. 2009). That exists when the
decision “rests upon a clearly erroneous finding of fact, an
errant conclusion of law, or an improper application of law to
fact.” Id. (citation omitted). We give fresh (i.e., plenary or de
novo) review to a conclusion of law and review for clear error
findings of fact leading to the decision. Id.Facts subject to clear-error review include those that are
basic, “the historical and narrative events elicited from the
evidence presented at trial . . .,” and those that are inferred,
which are “drawn from basic facts and are permitted only
when, and to the extent that, logic and human experience
indicate a probability that certain consequences can and do
11
The parties contest whether the Bankruptcy Court had
jurisdiction to issue the order enjoining the Third-Party Claims
against the Protected Parties. Dismissing LTL’s petition
obviates the need to reach that question.
32
follow from the basic facts.” Universal Mins., Inc. v. C.A.
Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981). These are
distinguished from an “ultimate fact,” which is a “legal concept
with a factual component.” Id. at 103. Examples include
negligence or reasonableness. Wells Fargo, N.A. v. Bear
Stearns & Co. (In re HomeBanc Mortg. Corp.), 945 F.3d 801,
810 (3d Cir. 2019). Reviewing an ultimate fact, “we separate
[its] distinct factual and legal elements . . . and apply the
appropriate standard to each component.” Universal Mins.,
669 F.2d at 103.
Concluding a bankruptcy petition is filed in good faith
is an “ultimate fact.” BEPCO, 589 F.3d at 616. While the
underlying basic and inferred facts require clear-error review,
the culminating determination of whether those facts support a
conclusion of good faith gets plenary review as “essentially[]
a conclusion of law.” Id. A conclusion of financial distress,
like the broader good-faith inquiry of which it is a part,
likewise is subject to mixed review. Whether financial distress
exists depends on the underlying basic facts, such as the
debtor’s ability to pay its current debts, and inferred facts, such
as projections of how much pending and future liabilities (like
litigation) could cost it in the future. But the conclusion, like
good faith, gets a fresh look.
B. Good Faith
Chapter 11 bankruptcy petitions are “subject to
dismissal under 11 U.S.C. § 1112(b) unless filed in good
faith.” BEPCO, 589 F.3d at 618 (citing NMSBPCSLDHB, L.P.
v. Integrated Telecom Express, Inc. (In re Integrated Telecom
Express, Inc.), 384 F.3d 108, 118 (3d Cir. 2004)). Section
1112(b) provides for dismissal for “cause.” A lack of good
33
faith constitutes “cause,” though it does not fall into one of the
examples of cause specifically listed in the statute. See In re
SGL Carbon Corp., 200 F.3d 154, 159-62 (3d Cir. 1999).
Because the Code’s text neither sets nor bars explicitly a good-
faith requirement, we have grounded it in the “equitable nature
of bankruptcy” and the “purposes underlying Chapter 11.” Id.
at 161-62 (“A debtor who attempts to garner shelter under the
Bankruptcy Code . . . must act in conformity with the Code’s
underlying principles.”).
Once at issue, the burden to establish good faith is on
the debtor. BEPCO, 589 F.3d at 618 (citing Integrated
Telecom, 384 F.3d at 118); SGL Carbon, 200 F.3d at 162 n.10.
We “examine the totality of facts and circumstances and
determine where a petition falls along the spectrum ranging
from the clearly acceptable to the patently abusive.” BEPCO,
589 F.3d at 618 (internal quotation marks omitted) (citing
Integrated Telecom, 384 F.3d at 118). Though a debtor’s
subjective intent may be relevant, good faith falls “more on
[an] objective analysis of whether the debtor has sought to step
outside the ‘equitable limitations’ of Chapter 11.” Id. at 618
n.8 (citing SGL Carbon, 200 F.3d at 165).
“[T]wo inquiries . . . are particularly relevant”: “(1)
whether the petition serves a valid bankruptcy purpose[;] and
(2) whether [it] is filed merely to obtain a tactical litigation
advantage.” Id. at 618 (internal quotation marks omitted)
(citing Integrated Telecom, 384 F.3d at 119-20). Valid
bankruptcy purposes include “preserv[ing] a going concern” or
“maximiz[ing] the value of the debtor’s estate.” Id. at 619.
Further, a valid bankruptcy purpose “assumes a debtor in
financial distress.” Integrated Telecom, 384 F.3d at 128.
34
C. Financial Distress as a Requirement of Good Faith
Our precedents show a debtor who does not suffer from
financial distress cannot demonstrate its Chapter 11 petition
serves a valid bankruptcy purpose supporting good faith. We
first applied this principle in SGL Carbon. The debtor there
filed for Chapter 11 protection in the face of many antitrust
lawsuits—in its words, to “protect itself against excessive
demands made by plaintiffs” and “achieve an expeditious
resolution of the claims.” 200 F.3d at 157. But we dismissed
the petition for lack of good faith, relying on the debtor’s strong
financial health. Id. at 162-70. We rejected arguments that the
suits seriously threatened the company and could force it out
of business, suggesting the magnitude of potential liability
would not likely render it insolvent. Id. at 162-64. And the
filing was premature, as one could be later made—without
risking the debtor’s ability to reorganize—at a time a company-
threatening judgment occurred. Id. at 163. Finally, in
considering whether the petition served a valid bankruptcy
purpose, we discerned none in light of the debtor’s substantial
equity cushion and a lack of evidence suggesting it had trouble
paying debts or impaired access to capital markets. Id. at 166.
Were the debtor facing “serious financial and/or managerial
difficulties at the time of filing,” the result may have been
different. Id. at 164.
Integrated Telecom made clear that “good faith
necessarily requires some degree of financial distress on the
part of a debtor.” 384 F.3d at 121 (emphasis added). That
debtor was a non-operating, nearly liquidated shell company
that was “highly solvent and cash rich at the time of the
bankruptcy.” Id. at 124. And its financial condition was key
to the petition’s dismissal. We said that Chapter 11 could not
35
improve its failing business model nor resolve pending
securities litigation in a way that increased recoveries for
creditors. Id. at 120-26. Thus the proceeding could preserve
no “value that otherwise would be lost outside of bankruptcy,”
showing those problems were not the kinds of financial issues
Chapter 11 aimed to address. Id. at 120, 129. And absent
financial distress, the debtor’s desire to benefit from certain
Code provisions (such as those capping claims for future rents)
could not justify its presence in bankruptcy. Id. at 126-29.
We note that, when considering the whole of the
circumstances in these decisions, we evaluated rationales for
filing offered by the debtor that were only modestly related to
its financial health—even after recognizing it was not in
financial distress. Yet we rejected all of them and stuck to the
debtor’s financial condition. Id.; SGL Carbon, 200 F.3d at
167-68.
The theme is clear: absent financial distress, there is no
reason for Chapter 11 and no valid bankruptcy purpose.
“Courts, therefore, have consistently dismissed . . . petitions
filed by financially healthy companies with no need to
reorganize under the protection of Chapter 11. . . . [I]f a
petitioner has no need to rehabilitate or reorganize, its petition
cannot serve the rehabilitative purpose for which Chapter 11
was designed.” Integrated Telecom, 384 F.3d at 122 (quoting
SGL Carbon, 200 F.3d at 166).
But what degree of financial distress justifies a debtor’s
filing? To say, for example, that a debtor must be in financial
distress is not to say it must necessarily be insolvent. We
recognize as much, as the Code conspicuously does not contain
any particular insolvency requirement. See SGL Carbon, 200
36
F.3d at 163; Integrated Telecom, 384 F.3d at 121. And we need
not set out any specific test to apply rigidly when evaluating
financial distress. Nor does the Code direct us to apply one.
Instead, the good-faith gateway asks whether the debtor
faces the kinds of problems that justify Chapter 11 relief.
Though insolvency is not strictly required, and “no list is
exhaustive of all the factors which could be relevant when
analyzing a particular debtor’s good faith,” SGL Carbon, 200
F.3d at 166 n.16, we cannot ignore that a debtor’s balance-
sheet insolvency or insufficient cash flows to pay liabilities (or
the future likelihood of these issues occurring) are likely
always relevant. This is because they pose a problem Chapter
11 is designed to address: “that the system of individual
creditor remedies may be bad for the creditors as a group when
there are not enough assets to go around.” Integrated Telecom,
384 F.3d at 121 (second set of italics added) (quoting Thomas
H. Jackson, The Logic and Limits of Bankruptcy Law 10
(1986)).
Still, we cannot today predict all forms of financial
difficulties that may in some cases justify a debtor’s presence
in Chapter 11. Financial health can be threatened in other
ways; for instance, uncertain and unliquidated future liabilities
could pose an obstacle to a debtor efficiently obtaining
financing and investment. As we acknowledged in SGL
Carbon, certain financial problems or litigation may require
significant attention, resulting in “serious . . . managerial
difficulties.” 200 F.3d at 164. Mass tort cases may present
these issues and others as well, like the exodus of customers
and suppliers wary of a firm’s credit-risk. See, e.g., Mark J.
Roe, Bankruptcy and Mass Tort, 84 Colum. L. Rev. 846, 855
(1984) (describing the “adverse” and “severe” effects large-
37
scale, future tort claims may have on a firm). So many spokes
can lead to financial distress in the right circumstances that we
cannot divine them all. What we can do, case-by-case, is
consider all relevant facts in light of the purposes of the Code.
Financial distress must not only be apparent, but it must
be immediate enough to justify a filing. “[A]n attenuated
possibility standing alone” that a debtor “may have to file for
bankruptcy in the future” does not establish good faith. SGL
Carbon, 200 F.3d at 164; see, e.g., Baker v. Latham
Sparrowbush Assocs. (In re Cohoes Indus. Terminal, Inc.), 931
F.2d 222, 228 (2d Cir. 1991) (“Although a debtor need not be
in extremis in order to file[,] . . . it must, at least, face such
financial difficulty that, if it did not file at that time, it could
anticipate the need to file in the future.”). Yet we recognize
the Code contemplates “the need for early access to bankruptcy
relief to allow a debtor to rehabilitate its business before it is
faced with a hopeless situation.” SGL Carbon, 200 F.3d at 163.
A “financially troubled” debtor facing mass tort liability, for
example, may require bankruptcy to “enable a continuation of
[its] business and to maintain access to the capital markets”
even before it is insolvent. Id. at 169.
Still, encouragement of early filing “does not open the
door to premature filing.” Id. at 163. This may be a fine line
in some cases, but our bankruptcy system puts courts, vested
with equitable powers, in the best position to draw it.
Risks associated with premature filing may be
particularly relevant in the context of a mass tort bankruptcy.
Inevitably those cases will involve a bankruptcy court
estimating claims on a great scale—introducing the possibility
of undervaluing future claims (and underfunding assets left to
38
satisfy them)12 and the difficulty of fairly compensating
claimants with wide-ranging degrees of exposure and injury.
On the other hand, a longer history of litigation outside of
bankruptcy may provide a court with better guideposts when
tackling these issues.13
To take a step back, testing the nature and immediacy
of a debtor’s financial troubles, and examining its good faith
more generally, are necessary because bankruptcy significantly
disrupts creditors’ existing claims against the debtor: “Chapter
11 vests petitioners with considerable powers—the automatic
12
See Report of the National Bankruptcy Review Commission
343-44 (Oct. 20, 1997) (recognizing claims-estimation
accuracy is an important component of the integrity of the mass
tort bankruptcy process and noting underestimation of claims
occurred in the Johns-Manville case, one of the earliest
asbestos bankruptcy cases, while also pointing to the adequate
funding of trusts in subsequent cases to show those risks are
surmountable).
13
For instance, the A.H. Robins claimants’ trust has been
recognized as one that functioned effectively and remained
solvent for years. There the Court and stakeholders had the
benefit of data from 15 years of tort litigation by A.H. Robins
before its filing. See Report of the National Bankruptcy
Review Commission 328 n.813, 344-45 (Oct. 20, 1997) (citing
Jack B. Weinstein, Individual Justice in Mass Tort Litigation:
The Effect of Class Actions, Consolidations, and other
Multiparty Devices 280 n.88, 326 n.149 (Northwestern Press
1995), and Ralph R. Mabey & Peter A. Zisser, Improving
Treatment of Future Claims: The Unfinished Business Left by
the Manville Amendments, 69 Am. Bankr. L.J. 487, 497 n.45
(1995)).
39
stay, the exclusive right to propose a reorganization plan, the
discharge of debts, etc.—that can impose significant hardship
on particular creditors. When financially troubled petitioners
seek a chance to remain in business, the exercise of those
powers is justified.” Integrated Telecom, 384 F.3d at 120(emphasis added) (citing SGL Carbon, 200 F.3d at 165-66).
Accordingly, we have said the availability of certain debtor-
favored Code provisions “assume[s] the existence of a valid
bankruptcy, which, in turn, assumes a debtor in financial
distress.” Id. at 128. Put another way, “Congress designed
Chapter 11 to give those businesses teetering on the verge of a
fatal financial plummet an opportunity to reorganize on solid
ground and try again, not to give profitable enterprises an
opportunity to evade contractual or other liability.” Cedar
Shore Resort, Inc v. Mueller (In re Cedar Shore Resort, Inc.),
235 F.3d 375, 381 (8th Cir. 2000) (internal quotation marks
omitted).
Our confidence in the conclusion that financial distress
is vital to good faith is reinforced by the central role it plays in
other courts’ inquiries.14 Chapter 11’s legislative history also
14
See, e.g., Little Creek Dev. Co. v. Commonw. Mortg. Corp.
(In re Little Creek Dev. Co.), 779 F.2d 1068, 1072 (5th Cir.
1986) (“Determining whether the debtor’s filing for relief is in
good faith depends largely upon the bankruptcy court’s on-the-
spot evaluation of the debtor’s financial condition, motives,
and the local financial realities.”); Cedar Shore Resort, Inc.,
235 F.3d at 379-80 (in evaluating good faith, courts “consider
the totality of the circumstances, including . . . the debtor’s
financial condition, motives, and the local financial realities”;
dismissing petition, in part, because the debtor was “not in dire
financial straits”); In re James Wilson Assocs., 965 F.2d 160,
40
suggests it was meant to “deal[] with the reorganization of a
financially distressed enterprise.” SGL Carbon, 200 F.3d at
166 (quoting S. Rep. No. 95-989, at 9, reprinted in 1978
U.S.C.C.A.N. 5787, 5795).
The takeaway here is that when financial distress is
present, bankruptcy may be an appropriate forum for a debtor
to address mass tort liability. Our SGL Carbon decision
specifically addressed this in distinguishing the financial
distress faced by Johns-Manville in its Chapter 11 case. It was
prompted by a tide of asbestos litigation that, but for its filing,
would have forced the debtor to book a $1.9 billion liability
reserve “trigger[ing] the acceleration of approximately $450
170 (7th Cir. 1992) (recognizing that, while the Code permits
a firm to file though it is not insolvent, such filings usually
involve “impending insolvency”); Cohoes Indus. Terminal,
931 F.2d at 228 (in the context of whether a petition was
frivolous under Bankruptcy Rule 9011, stating “[a]lthough a
debtor need not be in extremis in order to file[,] . . . it must, at
least, face such financial difficulty that, if it did not file at that
time, it could anticipate the need to file in the future”); see also,
e.g., Barclays-Am./Bus. Credit, Inc. v. Radio WBHP, Inc. (In
re Dixie Broad., Inc.), 871 F.2d 1023, 1027-28 (11th Cir. 1989)
(stating that whether a debtor is “financially distressed” is one
factor evidencing bad faith and that “the Bankruptcy Code is
not intended to insulate ‘financially secure’ [debtors]”);
Carolin Corp., 886 F.2d at 701 (one prong of the good-faith
inquiry is meant to ensure the petition bears “some relation to
the statutory objective of resuscitating a financially troubled
[debtor]”) (brackets in original) (citing Connell v. Coastal
Cable T.V., Inc. (In re Coastal Cable T.V., Inc.), 709 F.2d 762,
765 (1st Cir. 1983)).
41
million of outstanding debt, [and] possibly resulting in a forced
liquidation of key business segments.” In re Johns-Manville
Corp., 36 B.R. 727, 730 (Bankr. S.D.N.Y. 1984). That created
a “compelling need [for the debtor] to reorganize in order to
meet” its obligations to creditors. Id. This urgency stood in
stark contrast to the circumstances in SGL Carbon, where the
debtor faced no suits, or even liquidated judgments, that
threatened its ongoing operations.
A.H. Robins Company, before its bankruptcy, faced
financial woes like Johns-Manville’s, in both cases caused by
mass product liabilities litigation. Before filing, Robins had
only $5 million in unrestricted funds and a “financial
picture . . . so bleak that financial institutions were unwilling
to lend it money.” In re A.H. Robins Co., Inc., 89 B.R. 555,
558 (Bankr. E.D.V.A. 1988). The Court concluded Robins
“had no choice but to file for relief under Chapter 11.” Id.And in Dow Corning’s Chapter 11 case, the Court
described the company’s resolve to address mass tort liability
as “a legitimate effort to rehabilitate a solvent but financially-
distressed corporation.” In re Dow Corning Corp., 244 B.R.
673, 676-77 (Bankr. E.D. Mich. 1999) (emphasis added). It
specifically recognized that “the legal costs and logistics of
defending the worldwide product liability lawsuits against the
[d]ebtor threatened its vitality by depleting its financial
resources and preventing its management from focusing on
core business matters.” Id. at 677.
These cases show that mass tort liability can push a
debtor to the brink. But to measure the debtor’s distance to it,
courts must always weigh not just the scope of liabilities the
debtor faces, but also the capacity it has to meet them. We now
42
go there, but only after detouring to a problem particular to our
case: For good-faith purposes, should we judge the financial
condition of LTL by looking to Old Consumer—the operating
business with valuable assets, but damaging tort liability, that
the restructuring and filing here aimed to protect? Or should
we look to LTL, the entity that actually filed for bankruptcy?
Or finally, like the Bankruptcy Court, should we consider “the
financial risks and burdens facing both Old [Consumer] and
[LTL]”? App. 14 (Mot. to Dismiss Op. 14).
D. Only LTL’s Financial Condition is Determinative.
Weighing the totality of facts and circumstances might
seem on the surface to require that we evaluate the state of
affairs of both Old Consumer and LTL when judging the
latter’s financial distress. That said, we must not
underappreciate the financial reality of LTL while unduly
elevating the comparative relevance of its pre-bankruptcy
predecessor that no longer exists. Even were we unable to
distinguish the financial burdens facing the two entities, we can
distinguish their vastly different sets of available assets to
address those burdens. On this we part from the Bankruptcy
Court.
Thus for us, the financial state of LTL—a North
Carolina limited liability company formed under state law and
existing separate from both its predecessor company (Old
Consumer) and its newly incorporated counterpart company
(New Consumer)—should be tested independent of any other
entity. That means we focus on its assets, liabilities, and,
critically, the funding backstop it has in place to pay those
liabilities.
43
Doing so reflects the principle that state-law property
interests should generally be given the same effect inside and
outside bankruptcy: “Property interests are created and defined
by state law. Unless some federal interest requires a different
result, there is no reason why such interests should be analyzed
differently simply because an interested party is involved in a
bankruptcy proceeding.” Butner v. United States, 440 U.S. 48,
55 (1979). No one doubts that the state-law divisional merger
passed talc liabilities to LTL. Why in bankruptcy would we
recognize the effectiveness of this state-law transaction, but at
the same time ignore others that augment LTL’s assets, such as
its birth gift of the Funding Agreement? To say the financial
condition of Old Consumer prior to the restructuring—which
was not bolstered by such a contractual payment right—
determines the availability of Chapter 11 to LTL would impose
on the latter a lookback focused on the nonavailability of a
funding backstop to what is now a nonentity.
Instead, we must evaluate the full set of state-law
transactions involving LTL to understand the makeup of its
financial rights and obligations that, in turn, dictate its financial
condition. Even were we to agree that the full suite of
reorganizational steps was a “single integrated transaction,”
App. 43 (Mot. to Dismiss Op. 43), this conclusion does not
give us license to look past its effect: the creation of a new
entity with a unique set of assets and liabilities, and the
elimination of another. Only the former is in bankruptcy and
subject to its good-faith requirement. See Ralph Brubaker,
Assessing the Legitimacy of the “Texas Two-Step” Mass-Tort
Bankruptcy, 42 No. 8 Bankr. L. Letter NL 1 (Aug. 2022)
(observing that the Bankruptcy Code is designed to address the
financial distress of the entity in bankruptcy).
44
We cannot say a “federal interest requires a different
result.” See Butner, 440 U.S. at 55. That is because the
Bankruptcy Code is an amalgam of creditor-debtor tradeoffs
balanced by a Congress that assumed courts applying it would
respect the separateness of legal entities (and their respective
assets and liabilities). “[T]he general expectation of state law
and of the Bankruptcy Code . . . is that courts respect entity
separateness absent compelling circumstances calling
equity . . . into play.” In re Owens Corning, 419 F.3d 195, 211
(3d Cir. 2005). Put differently, as separateness is foundational
to corporate law, which in turn is a predicate to bankruptcy law,
it is not easily ignored. It is especially hard to ignore when
J&J’s pre-bankruptcy restructuring—ring-fencing talc
liabilities in LTL and forming the basis for this filing—
depended on courts honoring this principle.
The Bankruptcy Code is designed in important part to
protect and distribute a debtor’s assets to satisfy its liabilities.
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.
Thus, while we agree with the Bankruptcy Court that
both entities are part of our discussion of financial distress, the
financial condition of Old Consumer is relevant only to the
extent it informs our view of the financial condition of LTL
itself.
E. LTL Was Not in Financial Distress.
With our focus properly set, we now evaluate the
financial condition of LTL. It is here we most disagree with
45
the Bankruptcy Court, as it erred by overemphasizing the
relevance of Old Consumer’s financial condition. And while
we do not second-guess its findings on the scope and costs of
talc exposure up to the filing date, we do not accept its
projections of future liability derived from those facts.
After these course corrections, we cannot agree LTL
was in financial distress when it filed its Chapter 11 petition.
The value and quality of its assets, which include a roughly
$61.5 billion payment right against J&J and New Consumer,
make this holding untenable.
The Funding Agreement merits special mention. To
recap, under it LTL had the right, outside of bankruptcy, to
cause J&J and New Consumer, jointly and severally, to pay it
cash up to the value of New Consumer as of the petition date
(estimated at $61.5 billion) to satisfy any talc-related costs and
normal course expenses. Plus this value would increase as the
value of New Consumer’s business and assets increased. App.
4316-17 (Funding Agreement 4-5, § 1 Definition of “JJCI
Value”).15 The Agreement provided LTL a right to cash that
was very valuable, likely to grow, and minimally conditional.
And this right was reliable, as J&J and New Consumer were
highly creditworthy counterparties (an understatement) with
the capacity to satisfy it.
15
While, as described above, the uses for which LTL may draw
on the payment right change in bankruptcy (i.e., LTL is
permitted to draw on it to fund a claimant trust and satisfy
administrative expenses), we focus on the rights available to it
just prior to its filing for good-faith purposes.
46
As for New Consumer, it had access to Old Consumer’s
cash-flowing brands and products along with the profits they
produced, which underpinned the $61.5 billion enterprise value
of New Consumer as of LTL’s filing. And the sales and
adjusted income of the consumer health business showed
steady growth in the last several years when talc costs were
excluded. Most important, though, the payment right gave
LTL direct access to J&J’s exceptionally strong balance sheet.
At the time of LTL’s filing, J&J had well over $400 billion in
equity value with a AAA credit rating and $31 billion just in
cash and marketable securities. It distributed over $13 billion
to shareholders in each of 2020 and 2021. It is hard to imagine
a scenario where J&J and New Consumer would be unable to
satisfy their joint obligations under the Funding Agreement.
And, of course, J&J’s primary, contractual obligation to fund
talc costs was one never owed to Old Consumer (save for the
short moment during the restructuring that it was technically a
party to the Funding Agreement).
Yet the Bankruptcy Court hardly considered the value
of LTL’s payment right to its financial condition. True, it
noted its jurisdictional authority could “ensure that [LTL]
pursue[d] its available rights” under the Funding Agreement.
App. 43 (Mot. to Dismiss Op. 43). But, in discussing LTL’s
financial condition, the Court was “at a loss to understand,
why—merely because [LTL] contractually has the right to
exhaust its funding options [under the Funding Agreement]”—
it was “not to be regarded as being in ‘financial distress.’”
App. 35 (Id. at 35). It speculated that a draw on the payment
right could force J&J to deplete its available cash or pursue a
forced liquidation of New Consumer and have a “horrific
impact” on those companies. Id. The assumption seems to be
that, out of concern for its affiliates, LTL may avoid drawing
47
on the payment right to its full amount. But this is unsupported
and disregards the duty of LTL to access its payment assets.
Ultimately, whether this assumption was made or not,
the Bankruptcy Court did not consider the full value of LTL’s
backstop when judging its financial condition. And at the same
time it acutely focused on how talc litigation affected Old
Consumer. See, e.g., App. 34 (Mot. to Dismiss Op. 34) (“The
evidence confirms that the talc litigation . . . forced Old
[Consumer] into a loss position in 2020”); App. 36 (Id. at 36)
(“Old [Consumer] was not positioned to continue making
substantial [t]alc [l]itigation payments”); App. 38 (Id. at 38)
(“Old [Consumer] need not have waited until its viable
business operations were threatened past the breaking point”)
(emphasis added in each citation). Directing its sight to Old
Consumer and away from the Funding Agreement’s benefit to
LTL essentially made the financial means of Old Consumer,
and not LTL, the lodestar of the Court’s financial-distress
analysis. This misdirection was legal error.
We also find a variable missing in the Bankruptcy
Court’s projections of future liability for LTL extrapolated
from the history of Old Consumer’s talc litigation: the latter’s
successes. To reiterate, before bankruptcy Old Consumer had
settled about 6,800 talc-related claims for under $1 billion and
obtained dismissals of about 1,300 ovarian cancer and over 250
mesothelioma claims without payment. And a minority of the
completed trials resulted in verdicts against it (with some of
those verdicts reversed on appeal). Yet the Court invoked
calculations that just the legal fees to defend all existing
ovarian cancer claims (each through trial) would cost up to
$190 billion. App. 37 (Id. at 37). It surmised “one could
argue” the exposure from the existing mesothelioma claims
48
alone exceeded $15 billion. App. 17 (Id. at 17). These
conjectures ballooned its conclusion that, “[e]ven without a
calculator or abacus, one can multiply multi-million dollar or
multi-billion dollar verdicts by tens of thousands of existing
claims, let alone future claims,” to see that “the continued
viability of all J&J companies is imperiled.” App. 36 (Id. at
36).
What these projections ignore is the possibility of
meaningful settlement, as well as successful defense and
dismissal, of claims by assuming most, if not all, would go to
and succeed at trial. In doing so, these projections contradict
the record. And while the Bankruptcy Court questioned the
continuing relevance of the past track record after Ingham and
the breakdown of the Imerys settlement talks, this assumes too
much too early. Nothing in the record suggests Ingham—one
of 49 pre-bankruptcy trials and described even by J&J as
“unique” and “not representative,” App. 2692-93—was the
new norm. Nor is there anything that shows all hope of a
meaningful global or near-global settlement was lost after the
initial Imerys offer was rebuffed. The Imerys bankruptcy
remained a platform to negotiate settlement. And the
progression of the multidistrict litigation on a separate track
would continue to sharpen all interested parties’ views of
mutually beneficial settlement values.
Finally, we cannot help noting that the casualness of the
calculations supporting the Court’s projections engenders
doubt as to whether they were factual findings at all, but instead
back-of-the-envelope forecasts of hypothetical worst-case
scenarios. Still, to the extent they were findings of fact, we
cannot say these were inferences permissibly drawn and
entitled to deference. See Universal Mins., 669 F.2d at 102.
49
And as we locate no other inferences or support in the record
to bear the Court’s assertion that the “talc liabilities” “far
exceed [LTL’s] capacity to satisfy [them],” we cannot accept
this conclusion either.16 App. 23 (Mot. to Dismiss Op. 23).
In this context, it becomes clear that, on its filing, LTL
did not have any likely need in the present or the near-term, or
even in the long-term, to exhaust its funding rights to pay talc
liabilities. In the over five years of litigation to date, the
aggregate costs had reached $4.5 billion (less than 7.5% of the
$61.5 billion value on the petition date), with about half of
these costs attributable to one ovarian cancer verdict, Ingham,
16
Because we arrive at the same result assuming the
Bankruptcy Court was correct to determine LTL was
responsible to indemnify J&J for all talc costs it incurs, we
need not opine on this conclusion. Still, we note certain
pertinent factors lack full discussion in the Court’s analysis of
the indemnity agreement relating to Johnson’s Baby Powder in
the 1979 Spin Off. App. 163-69 (Third-Party Inj. Op. 24-30).
For example, it is not obvious LTL must indemnify J&J for the
latter’s independent, post-1979 conduct that is the basis of a
verdict rendered against it. See App. 4957 (Agreement for
Transfer of Assets and Bill of Sale 5 ¶ 4) (Old Consumer’s
predecessor agrees to assume and indemnify J&J against
“all . . . liabilities and obligations of every kind and description
which are allocated on the books or records of J&J as
pertaining to the BABY Division.”) (emphasis added). It is
also not clear the indemnity should be read to reach punitive
damage verdicts rendered against J&J for its own conduct.
Additionally, the Court never discussed how it reached its
conclusion that Old Consumer assumed responsibility from
J&J for all claims relating to Shower to Shower.
50
to date an outlier victory for plaintiffs. While the number of
talc claims had surged in recent years, still J&J, as of October
2021, valued the probable and reasonably estimable contingent
loss for its products liability litigation, including for talc, under
GAAP, at $2.4 billion for the next two years. Further, though
settlement offers are only that, we do not disregard LTL’s
suggestion that $4 billion to $5 billion was at one time
considered by plaintiffs’ lawyers to be in the ballpark to resolve
virtually all multidistrict ovarian cancer claims as well as
corresponding additional claims in the Imerys bankruptcy.
And as noted, we view all this against a pre-bankruptcy
backdrop where Old Consumer had success settling claims or
obtaining dismissal orders, and where, at trial, ovarian cancer
plaintiffs never won verdicts that withstood appeal outside of
Ingham and mesothelioma plaintiffs had odds of prevailing
that were less than stellar.
From these facts—presented by J&J and LTL
themselves—we can infer only that LTL, at the time of its
filing, was highly solvent with access to cash to meet
comfortably its liabilities as they came due for the foreseeable
future. It looks correct to have implied, in a prior court filing,
that there was not “any imminent or even likely need of [it] to
invoke the Funding Agreement to its maximum amount or
anything close to it.” App. 3747 (LTL’s Obj. to Mots. for Cert.
of Direct Appeal 22) (emphasis added). Indeed, the Funding
Agreement itself recited that LTL, after the divisional merger
and assumption of that Agreement, held “assets having a value
at least equal to its liabilities and had financial capacity
sufficient to satisfy its obligations as they become due in the
ordinary course of business, including any [t]alc [r]elated
[l]iabilities.” App. 4313 (Funding Agreement 1, ¶ E)
(emphasis added).
51
We take J&J and LTL at their word and agree. LTL has
a funding backstop, not unlike an ATM disguised as a contract,
that it can draw on to pay liabilities without any disruption to
its business or threat to its financial viability. It may be that a
draw under the Funding Agreement results in payments by
New Consumer that in theory might someday threaten its
ability to sustain its operational costs. But those risks do not
affect LTL, for J&J remains its ultimate safeguard. And we
cannot say any potential liquidation by LTL of Royalty
A&M—a collection of bare rights to streams of payments
cobbled together on the eve of bankruptcy—to pay talc costs
would amount to financial distress. Plus LTL had no
obligation, outside of bankruptcy, to sell those assets for cash
before drawing on the Funding Agreement.
At base level, LTL, whose employees are all J&J
employees, is essentially a shell company “formed,” almost
exclusively, “to manage and defend thousands of talc-related
claims” while insulating at least the assets now in New
Consumer. App. 449 (Decl. of John Kim 5). And LTL was
well-funded to do this. As of the time of its filing, we cannot
say there was any sign on the horizon it would be anything but
successful in the enterprise. It is even more difficult to say it
faced any “serious financial and/or managerial difficulties”
calling for the need to reorganize during its short life outside
of bankruptcy. SGL Carbon, 200 F.3d at 164.17
17
In saying the nature of the payment right and a lack of
meaningful operations show that LTL did not suffer from
sufficient kinds of financial distress, we focus on the special
circumstances here and do not suggest the presence of these
52
But what if, contrary to J&J’s statements, Ingham is not
an anomaly but a harbinger of things to come? What if time
shows, with the progression of litigation outside of bankruptcy,
that cash available under the Funding Agreement cannot
adequately address talc liability? Perhaps at that time LTL
could show it belonged in bankruptcy. But it could not do so
in October 2021. While LTL inherited massive liabilities, its
call on assets to fund them exceeded any reasonable
projections available on the record before us. The “attenuated
possibility” that talc litigation may require it to file for
bankruptcy in the future does not establish its good faith as of
its petition date. Id. at 164. At best the filing was premature.18
In sum, while it is unwise today to attempt a tidy
definition of financial distress justifying in all cases resort to
Chapter 11, we can confidently say the circumstances here fall
outside those bounds. Because LTL was not in financial
characteristics would preclude a finding of financial distress in
every case.
18
Some might read our logic to suggest LTL need only part
with its funding backstop to render itself fit for a renewed
filing. While this question is also premature, we note
interested parties may seek to “avoid any transfer” made within
two years of any bankruptcy filing by a debtor who “receive[s]
less than a reasonably equivalent value in exchange for such
transfer” and “became insolvent as a result of [it].” 11 U.S.C.
§ 548(a). So if the question becomes ripe, the next one might
be: Did LTL receive reasonably equivalent value in exchange
for forgoing its rights under the Funding Agreement?
53
distress, it cannot show its petition served a valid bankruptcy
purpose and was filed in good faith under Code § 1112(b).19
F. “Unusual Circumstances” Do Not Preclude Dismissal
The Bankruptcy Court held, as an independent basis for
its decision, that even if LTL’s petition were not filed in good
faith, § 1112(b)(2) of the Code authorized it nonetheless to
deny dismissal. For a petition to be saved under that provision,
a court must identify “unusual circumstances establishing that
. . . [dismissal] is not in the best interests of creditors and the
estate.” 11 U.S.C. § 1112(b)(2). The debtor (or any other party
in interest) must also establish “the grounds for . . . [dismissal]
include an act or omission” (1) “for which there exists a
reasonable justification” and (2) “that will be cured within a
reasonable period of time.” Id.The Bankruptcy Court ruled that “the interests of
current tort creditors and the absence of viable protections for
future tort claimants outside of bankruptcy . . . constitute such
19
Because we conclude LTL’s petition has no valid bankruptcy
purpose, we need not ask whether it was filed “merely to obtain
a tactical litigation advantage.” BEPCO, 589 F.3d at 618. Yet
it is clear LTL’s bankruptcy filing aimed to beat back talc
litigation in trial courts. Still “[i]t is not bad faith to seek to
gain an advantage from declaring bankruptcy—why else
would one declare it?” James Wilson Assoc., 965 F.2d at 170.
While we ultimately leave the question unaddressed, a filing to
change the forum of litigation where there is no financial
distress raises, as it did in SGL Carbon, the specter of “abuse
which must be guarded against to protect the integrity of the
bankruptcy system.” 200 F.3d at 169.
54
‘unusual circumstances’ as to preclude . . . dismissal.” App.
13 (Mot. to Dismiss Op. 13 n.8). But what is unusual instead
is that a debtor comes to bankruptcy with the insurance
accorded LTL. Our ground for dismissal is LTL’s lack of
financial distress. No “reasonable justification” validates that
missing requirement in this case. And we cannot currently see
how its lack of financial distress could be overcome. For these
reasons, we go counter to the Bankruptcy Court’s conclusion
that “unusual circumstances” sanction LTL’s Chapter 11
petition.
III. CONCLUSION
Our decision dismisses the bankruptcy filing of a
company created to file for bankruptcy. It restricts J&J’s
ability to move thousands of claims out of trial courts and into
bankruptcy court so they may be resolved, in J&J’s words,
“equitably” and “efficiently.” LTL Br. 8. But given Chapter
11’s ability to redefine fundamental rights of third parties, only
those facing financial distress can call on bankruptcy’s tools to
do so. Applied here, while LTL faces substantial future talc
liability, its funding backstop plainly mitigates any financial
distress foreseen on its petition date.
We do not duck an apparent irony: 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. Put
another way, the bigger a backstop a parent company provides
a subsidiary, the less fit that subsidiary is to file. But when the
backstop provides ample financial support to a debtor who then
seeks shelter in a system designed to protect those without it,
we see this perceived incongruity dispelled.
55
That said, we mean not to discourage lawyers from
being inventive and management from experimenting with
novel solutions. Creative crafting in the law can at times
accrue to the benefit of all, or nearly all, stakeholders. Thus
we need not lay down a rule that no nontraditional debtor could
ever satisfy the Code’s good-faith requirement.
But here J&J’s belief that this bankruptcy creates the
best of all possible worlds for it and the talc claimants is not
enough, no matter how sincerely held. Nor is the Bankruptcy
Court’s commendable effort to resolve a more-than-thorny
problem. These cannot displace the rule that resort to Chapter
11 is appropriate only for entities facing financial distress.
This safeguard ensures that claimants’ pre-bankruptcy
remedies—here, the chance to prove to a jury of their peers
injuries claimed to be caused by a consumer product—are
disrupted only when necessary.
Some may argue any divisional merger 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. For here the
debtor was in no financial distress when it sought Chapter 11
protection. To ignore a parent (and grandparent) safety net
shielding all liability then foreseen would allow tunnel vision
to create a legal blind spot. We will not do so.
We thus reverse the Bankruptcy Court’s order denying
the motions to dismiss and remand this case with the
instruction to dismiss LTL’s Chapter 11 petition. Dismissing
its case annuls the litigation stay ordered by the Court and
makes moot the need to decide that issue.
56