Twofish's Blog

August 19, 2009

Best and the worst – The Sanlu Settlement

Filed under: china — twofish @ 3:16 am

The last article was about the worst of Chinese law.  This article is about something that I think was handled very, very well, which is the aftermath of the Sanlu milk scandal.  This discussion came out of a post on Chinalawblog on Chinese food safety.

In response to a statement that SanLu milk should have gone bankrupt, I mentioned that:

SanLu *did* go bankrupt as a result of the milk scandal. Two of the executives got death sentences. Nineteen other executives got various sentences from five years to life. The basic procedure to settle the civil claims was something very similar to what the US government did to setlle the 9/11 lawsuits. The government and the dairy association brokered a settlement in which people could either accept a cash settlement, or else go to court. Most people want to get on with their lives so they took the settlement.

We can talk about US-style class action lawsuits. One of the problems in these mega-lawsuits is that if you win a huge judgment and then the company goes bankrupt, then most defendants may end up with nothing. The other problem is that while the litigation goes on, the company is under a cloud and cannot rebuild.

What happened with the Sanlu case is far far batter than having a massive class action wind its way through the legal system taking years with no one making money except for the lawyers. The nightmare you want to avoid is what happened with asbestos litigation. The first case was filed in 1966, and it’s *still* going on. Sort of like “Jarndyce and Jarndyce”

Among the problems, what if the companies goes bankrupt during the court proceeding? What happens if the company *threatens* to go bankrupt in order to impose a settlement. And as far as I know, all US litigation has been civil litigation. None of the executives involved in the asbestos case (or in the tobacco cases) have every been personally tried. One problem here is that if you are an executive whose company goes bankrupt, so what? That’s why I think it’s important to have personal liability (i.e. people go to jail).

Also while the US uses “class action lawsuits” to deal with consumer liability issues, “class action lawsuits” are not common in most European countries, all of whom have different ways of dealing with the issue.

As I said above, as far as the actual settlements and consequences, I do think that the Chinese government handled things quite well, and I’d like for people that are critical of the legal aftermath to explain what the Chinese government could have done better. Yes, one could argue that the payouts where low, but as it was, it totally bankrupted the company responsible. If you mandate US-style damage awards, then the whole thing becomes a lottery, in which people that are the first to file or who have particularly good lawyers get the bulk of the money, and everyone else spends years fighting over the scraps that remain. (What happened with asbestos.)

Also if you have a long nasty class action lawsuit, then most of the money ends up with the lawyers (there is an entire industry devoted to asbestos lawsuits). In the mean time, honest dairy farmers and dairy workers who weren’t involved in the scandal are hurt because the company gets pounded into dust.


1 Comment »

  1. These off the cuff pot shots about asbestos cases and the lawyers who handle them are so pervasive that I rarely bother to take them on.

    But since readers of this blog need to know how important asbestos litigation is – and how useful it has been, I’ll point out here Prof. Anita Bernstein’s recent article Asbestos Achievements. It is available on SSRN:

    Hundreds of thousands of workers were sickened by our heedless industrial use of the deadly mineral – whose effects often show up only 10, 20, 30, and 40 years after exposure. The comparison to Dickens Jarndyce v. Jarndyce is utterly inappropriate for this multi-generational, international epidemic.

    – George Conk
    Adjunct Professor of Law
    Senior Fellow – Stein Center for Law & Ethics
    Fordham Law School

    Comment by George Conk — August 22, 2009 @ 4:19 pm

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