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Veterans and the FACT Act: What’s the truth?

All decent and principled members of Congress wish to honor the service of our nation’s veterans. That is why veterans’ voices really are heard, and really do matter, on Capitol Hill.

For this, I am grateful.

{mosads}But what can members of Congress do when veterans’ voices are in conflict? They must look more deeply into the issue at hand, and they must sharpen their curiosity about the motivations behind counter-intuitive lobbying campaigns.

In the case of opposition to the Furthering Asbestos Claims Transparency (FACT) Act, I find myself in the unusual position of encouraging Congress to take some veterans’ voices with a grain of salt, given the considerable financial incentives of the trial bar – the money behind FACT’s opposition campaign.

Some veterans groups have aligned with the trial bar and positioned themselves against transparency in asbestos trust fund claims. It is a awkward position for those dedicated to the protection and preservation of freedom, as true liberty is not possible under a government-sanctioned cloak of secrecy.

The FACT Act, and its sunshine provisions, is strongly supported by veterans like myself who are dedicated to preserving the rapidly diminishing, congressionally established asbestos trust funds for all service members who have been injured by a substance we now know to be dangerous and even deadly. Veterans hurt by asbestos are significant in numbers, given the military’s extensive use of asbestos during and after World War II.

We support the FACT Act because we know that fraud and abuse – not justice – are driving the asbestos funds’ premature depletion. Secrecy in the asbestos legal system makes it hard to know the full extent of this fraud, but there is ample evidence the funds, which Congress authorized in 1994, are being drained far too quickly. Twenty-three funds have reduced their payments since 2008, and an asbestos victim who files trust claims today may receive less than half as much as he or she would have a decade ago.

Independent experts like the GAO and the RAND Institute for Civil Justice agree that the trusts are susceptible to the type of fraud perpetrated by profit-driven trial attorneys. The lawyers who usher veterans and other victims through the process of accessing awards from asbestos trust funds are like kids in a candy store; it’s almost impossible for them to resist taking an extra lick or bite for themselves.

Indeed, the most aggressive plaintiff’s lawyers don’t even try to resist, but instead spend investors’ money on advertising and telemarketing to find plaintiffs for new lawsuits. Returns on those investments – where victims are treated like commodities – enrich the attorneys and their financial backers.  

Just one example: Houston-based personal injury firm AkinMears, with considerable financial help from hedge funds and litigation finance firms, “invested” more than $25 million in television advertising last year to find new victims to commoditize.

In the case of asbestos trusts, trial attorneys have found a way to take their extra licks and bites by filing multiple claims with different funds on behalf of the same victims.

There is no requirement for the lawyers or the funds to disclose trust claims, so the opportunity for fraud is positioned immediately next to the doorway for justice. Tragically, every dollar that leaves the trust funds through fraud reduces future awards for legitimate claims.

The best way to protect veterans and other asbestos victims from attorneys’ double dipping is the FACT Act’s requirement to disclose information about trust fund claims.

For those with nothing to hide – like the honorable veterans who were harmed by asbestos and deserve compensation – this type of transparency is not feared.

Members of Congress who want to honor the nation’s veterans can do so by protecting the asbestos trust funds from trial lawyer greed. This protection will be achieved through the FACT Act’s critical transparency provisions.

Brieden is a past national commander of The American Legion and a Texas county judge.


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