WaPo confirms: As lawyer, Elizabeth Warren worked to limit Dow Chemical’s liability to breast implant victims

WaPo confirms: As lawyer, Elizabeth Warren worked to limit Dow Chemical’s liability to breast implant victims

Timing is everything in politics, and Elizabeth Warren received a huge break when a devastating Washington Post investigation of Warren’s legal practice when she was a law professor was published on Monday, July 15, 2019. That was the day after Trump’s tweets telling four congresswomen “go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how….”

The investigation confirmed and expanded on Legal Insurrection’s reporting from 2012 that in her private legal practice Warren worked against breast implant victims, not for them as she claimed. It was part of a pattern of Warren representing major corporations against the people Warren claims to care about, before she launched her political career.

Those Trump tweets sparked a week-long (and still ongoing) media feeding frenzy in which the WaPo report about Warren received little attention. The WaPo report should have been massive news, particularly with the second Democrat debate coming up this week. It should have been the subject of other news coverage about Warren’s private legal practice, and other Democrat presidential candidates should have been talking about how it works against Warren much as Joe Biden’s past is used against him.

But it passed with barely a mention in other news outlets and competing campaigns, as the prolonged news cycle was consumed by focus on Trump’s fight with “The Squad.”

WaPo Reporter Favored By Warren Campaign In The Past

The WaPo investigation was by Annie Linskey, who used to work at the Boston Globe and has covered the Warren campaign for years. By all appearances, Linskey was on good terms with team Warren, and the campaign clearly shared information it deemed helpful with Linskey in the past.

Linskey conducted the Globe investigation, including documents provided by Warren, that Warren repeatedly cites claiming that Warren did not “get ahead” by claiming to be Native American. (I disagree with that conclusion, for the reasons I discussed.)

That headline was later made more favorable to Warren, presumably by the editors:

*Interesting* change of headline by @BostonGlobe from "it's complicated" about Elizabeth Warren to definitive No re whether her claim to be minority helped her pic.twitter.com/QzEJtxZWPH

— Legal Insurrection (@LegInsurrection) September 3, 2018

Linskey also was the Globe reporter through whom Warren rolled out her DNA test:

The point of all this is that Linskey is someone with whom the Warren campaign has been willing to share information, and who the campaign has cited with favor.

Linskey cannot in any way be construed as hostile to Warren, so the findings of the latest investigation cannot be attacked by Warren and her supporters as a smear by a “right-wing extremist.”

In 2012, Legal Insurrection Reported On Warren’s Legal Practice Representing Large Corporations, Including Dow Chemical

Linskey investigated Warren’s private legal practice while Warren was a Harvard Law School professor. That’s a topic I wrote about extensively during Warren’s 2012 Senate campaign, including Warren’s work for Dow Chemical Company with regard to breast implant litigation at its subsidiary, Dow Corning.

See this summary page at ElizabethWarrenWiki.org, Legal Representation of Major Corporations, and these posts here from October and early November 2012:

• Elizabeth Warren issues incomplete list of cases
• Elizabeth Warren represented large utility seeking to liquidate rural electric cooperative
• Elizabeth Warren’s implausible Dow Chemical claim
• Elizabeth Warren held asbestos workers hostage to inter-corporate fight
• Documenting another Elizabeth Warren fib — Fairchild Aircraft case

Linskey started investigating Warren’s legal practice at least several months ago, maybe earlier, and her investigation sparked the Warren campaign to preemptively release a list of 50 matters (some cases, some expert or consultant appearances). I wrote about this case list release, and suggested that Elizabeth Warren tries to get ahead of her law practice problems with pre-holiday weekend info dump:

Elizabeth Warren posted on her campaign website a list of 56 cases on which she worked while employed as a law professor. In some of the cases she acted as legal counsel in a litigation, in others she gave legal advice outside of a court litigation, and in others she was retained as an expert.

Soon after that information dump, the Washington Post ran a story about it, indicating WaPo had been looking into Warren’s legal caseload, While teaching, Elizabeth Warren worked on more than 50 legal matters, charging as much as $675 an hour:

Sen. Elizabeth Warren worked on more than 50 legal matters during her career as a professor at Ivy League law schools, charging as much as $675 an hour to advise a variety of clients, including people with asbestos disease and a corporation facing possible liability over ruptured breast implants.

Warren’s presidential campaign released a list of 56 cases on her website Wednesday night, revealing a far higher number of cases than Warren (D-Mass.) had previously disclosed and lending detail to an aspect of her career that she rarely discusses in public. The Washington Post had requested a detailed accounting of her outside work and was conducting a review of her work from public records.

When she first ran for the Senate in 2012, Warren came under pressure from her Republican opponent and the news media to discuss her legal work. At the time, she released a list of 13 cases without saying whether it represented a full accounting; at least one other case came to light during the race.

This WaPo coverage has worked to Warren’s great advantage, with her backers on social media — including Alexandria Ocasio-Cortez and Hillary communications person Charlotte Clymer – portraying this as an issue either of a lawyer getting paid for her expertise, so no big deal, or the hourly rate being questioned only because Warren’s a woman. The $675 is the perfect distraction for Warren from more serious issues.

The more serious issues, I wrote, were investigations into Warren’s legal practice, including her representation of major corporations against the ‘little’ guys and gals, which is contrary to Warren’s political narrative:

The Warren info dump appears to be a direct response to WaPo asking for information about her cases. This is a classic Warren campaign tactic, only release what you think helps you (like the 13 cases in 2012), and then do a preemptive release of more information when you think negative information will come out.

But I’m not sure that’s all that’s concerning the Warren campaign. I know for a fact that another major newspaper has been conducting an investigation into Warren’s legal practice, an investigation that appears to be much more granular and exhaustive than WaPo. Warren must know about that looming investigation, and this information dump just before a holiday weekend was a way of creating a narrative favorable to Warren before the potentially bad news dropped….

First, Warren represented corporate America against the ‘little guys and gals’. Warren represented that her legal work for large corporations was to help individuals. I demonstrated based on court records that in several key cases Warren has misrepresented the nature of her legal work, that in fact she was working against consumers and individuals….

This is not a narrative favorable to Warren. She made hundreds of thousands of dollars, likely millions, representing the corporate America she routinely demonized once she became a politician. There was nothing inherently wrong with her legal work representing corporate America, there is something wrong with presenting it as something it wasn’t. It’s a question of transparency and honesty, much like her multi-year struggle to explain why she falsely claimed to be Native American for employment purposes.

Dow Chemical Representation Was Not Initially Disclosed By Warren

One thing I have learned in covering Warren’s 2012 campaign, particularly as to her Native American problem, is that she discloses only what she thinks people already know. When people learn more, she acts preemptively to get ahead of bad news.

So it was when, on the eve of a debate Warren with Scott Brown in 2012, she released a list of 13 cases on which she had worked. That list was a reaction to Brown hammering Warren’s representation of Travelers Insurance in a case that ended up shafting asbestos workers. In the course of my research, I discovered the Dow Chemical representation, and many other cases, which were not on Warren’s list.

Linskey’s investigation went even deeper than my 2012 investigation, and a big focus was the work Warren did for Dow Chemical, which Linskey acknowledged was first reported by me:

That work surfaced when the blog Legal Insurrection posted a court document from an unrelated case in which Warren said she’d served in an “advisory capacity” to Dow Chemical “in the early days of the Dow Corning bankruptcy.”

In my 2012 reports, I noted, among other things, Elizabeth Warren’s implausible Dow Chemical claim:

Dow Chemical was disclosed, however, on a sworn statement Warren filed in a 2002 bankruptcy case where she was being hired as legal counsel for one of the Committees of the bankruptcy estate, and revealed on this blog.  The description Warren gave in that 2002 sworn statement was:

I served in an advisory capacity to Dow Chemical, the parent company of Dow Coming, in the early days of the Dow Coming bankruptcy

I examined the likely role of Warren in protecting parent company Dow Chemical from claims against Dow Corning by breast implant claimants.

When the Brown campaign picked up a similar theme, Warren defended by claiming all she did was help set up a trust fund for breast implant claimants, in other words, she was looking out for the women not the big chemical company paying her….

The timing, however, makes clear that Warren’s story is completely implausible.

For years, including in the “early days of the Dow Corning bankruptcy,” to use Warren’s terminology, Dow Chemical fought vigorously to evade any legal responsibility for the breast implant liabilities….

There are multiple problems with Warren’s narrative that she was trying to help the women:

First, the notion that Warren was representing anyone other than her client is preposterous.  As an attorney, she had a duty of loyalty to Dow Chemical.  If she explored possible ways in which Dow Chemical could extricate itself through settlement, her services were on behalf of and for the benefit of Dow Chemical, not the women.

Second, Warren did not represent Dow Corning, the entity which eventually set up the trust.  Again, there may have been strategizing in the early days about how and whether Dow Chemical, the parent corporation, might have to contribute, but there was no resolution in the early days.

Third, during the time Warren was providing legal advice to Dow Chemical, Dow Chemical was fighting liability.   As the Dow Corning bankruptcy case wound down, one of the most controversial provisions involved the release of Dow Chemical from liability as part of the Dow Corning reorganization plan which set up the trust.  (Analysis here, summary here, Plan here)  It also appears that Dow Chemical did not make any payments beyond its equity stake in Dow Corning and its insurance coverage to the trust (I’m still confirming this last point).

In short, in the early days of the Dow Corning breast implant litigation Elizabeth Warren was providing legal advice to Dow Chemical, which was denying liability and fighting breast implant claims for many years to come. Warren was not a legal adviser to Dow Corning, the entity which years later set up and funded a trust for implant claimants.

Absent specific additional disclosures by Warren, there is no plausible reason to believe that Warren was looking out for the interests of breast implant claimants at the time she was providing legal services to Dow Chemical.

WaPo Investigation Is Devastating to Warren’s Narrative

Linskey’s investigation report is titled Dow breast implant case spotlights Elizabeth Warren’s work helping big corporations navigate bankruptcies, and it should be devastating for a presidential candidate who holds herself out as looking out for the poor, for women, and fighting big corporations who allegedly abuse them (emphasis added):

When Dow Corning faced thousands of lawsuits in the 1990s from women saying they had become sick from the company’s silicone gel breast implants, its parent firm, Dow Chemical, turned to one of the country’s leading experts in corporate bankruptcies: Professor Elizabeth Warren.

Warren, now a Democratic presidential candidate, has never publicly discussed her role in the case. Her campaign said that she was “a consultant to ensure adequate compensation for women who claimed injury” from the implants and that a $2.3 billion fund for the women was started “thanks in part to Elizabeth’s efforts.”

But participants on both sides of the matter say that description mischaracterizes Warren’s work, in which she advised a company intent on limiting payments to the women.

“She was on the wrong side of the table,” said Sybil Goldrich, who co-founded a support group for women with implants and battled the companies for years. Goldrich said Dow Corning and its parent “used every trick in the book” to limit the size of payouts to women. The companies, she added, “were not easy to deal with at all.”

Linskey’s investigation found that Warren was part of the Dow Chemical defense team devising the strategy to limit company liability:

A person familiar with Warren’s role who spoke on the condition of anonymity to describe litigation strategy said the future senator was part of a Dow defense team that had containing the company’s liability as a goal.

Linskey noted how this presents a potential political problem for Warren:

Warren, a Democratic senator from Massachusetts and former Ivy League law professor, is building a White House campaign on her long-standing image as an advocate for consumers and a fierce critic of corporations. While Warren has won praise for a policy-driven platform offering a coherent critique of unchecked capitalism, she has yet to fully explain how her years of private consulting and legal work, sometimes on behalf of major corporations involved in bankruptcy cases, comport with her recent statements while campaigning.

“You know, those big corporations, they don’t have any loyalty to America,” Warren said during an MSNBC town hall in June. “They don’t have any loyalty to American workers. They have loyalty to exactly one thing, and that is their own profits.”

Kristen Orthman, a spokeswoman for the Warren campaign, said there’s nothing inconsistent about Warren’s corporate legal work and her campaign message. Bankruptcy is a way to address the interests of competing groups, and Warren advocated balancing those interests in an equitable way, Orthman said. In the Dow case, Warren’s role was limited to a period of time in which the interests of the plaintiffs and the companies were aligned because they faced a common goal of presenting an agreement to the bankruptcy court, Orthman said.

This defense by the Warren campaign echoes what we have heard in the past, that she really was working to help the women. There’s just no evidence of that, and all the evidence — including Warren’s duty of loyalty to her client, Dow Chemical — goes against that.

Perhaps most telling, is that Warren would not sit down for an interview with Linskey, despite Warren and her campaign having provided information to Linskey in the past:

Warren declined an interview request.

Linskey interviewed people involved in the Dow Corning bankruptcy, and it’s pretty clear that Warren was working, as expected, to limit Dow Chemical liability, not to expand payments to women (emphasis added):

But early in the bankruptcy, the lawyers for Dow Corning and Dow Chemical faced a number of technical issues, including some that stumped their army of bankruptcy lawyers. That’s when Dow Chemical turned to Warren. “She was a known bankruptcy expert,” said James Stengel, who was a lawyer for Dow Chemical during the litigation.

Stengel recalled that Warren met with the lawyers two or three times and described her as “nice, cooperative and very smart.”…

After Dow Corning entered bankruptcy, years of haggling ensued, and an agreement was not approved by a court until November 1999. After several appeals, the settlement, which included the fund for victims, went into effect in June 2004.
Signing up

Warren’s campaign pointed out that the vast majority of the women approved the fund. Plaintiffs’ lawyers noted that many women signed on because they were enticed by a promise of extra payments from any money left over in the fund.

But the company has been resistant to making those payments, even though there is money remaining in the fund, said Ernest Hornsby, an Alabama-based attorney for plaintiffs.

He and others on both sides of the case said Warren’s expertise was used by a company fighting in court to limit its liability and payments to the women.

“There weren’t any voices on Dow Corning’s side saying we should pay these woman as much as possible,” Hornsby said. “Nobody ever said, ‘Well, we have a law professor out of Massachusetts who says we ought to pay women more.’ ” Payments were estimated at $2,000 to $20,000 for women with ruptured implants, according to news reports at the time.

After Linskey’s inquiries to the Warren campaign, an attempt was made to spin the story in Warren’s favor, Linskey reported:

Shortly after The Post contacted Warren’s campaign for comment on this story, a lawyer from Warren’s campaign called Gold­rich, the advocate for breast implant victims, to ask her to make a positive statement about the settlement.

“They asked, ‘Could I make a comment about whether the deal was fair? Would I say it was a fair deal? Was it fair?’ ” said Goldrich, recalling her conversation. “I wouldn’t say that.”

Will This Become A Campaign Issue

There was nothing inherently wrong with Warren helping a large chemical company limit its liability to women with defective breast implants. It wasn’t illegal, and big corporations are entitled to defend themselves. But that’s not how Warren spun it, and it’s not how she presents herself as an advocate for consumers and women. It’s a matter of honesty about her career, and how she lined her pockets.

This story has the potential, combined with the other details of Warren’s legal representation of large corporations, to become a campaign issue.

That is, if other Democrats take the gloves off the way Kamala Harris took them off against Joe Biden.

Equally important, it’s part of a pattern of non-transparency by Warren. Her 7-year-long evasiveness over claiming to be Native American is the best example, because it’s easiest for the media and public to understand. Warren’s private legal career, in which she likely made millions, provides more fodder for the political battles ahead.

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