This country’s great wealth and prosperity are built upon the foundation of capitalism. Capitalism is an economic system that allows businesses to compete against one another in a free market system and allows the winners of these competitions to achieve insane profit levels. Despite a lack of barriers to entry, there are certain principles in place that are supposed to regulate the market. The most important of those is that you can’t kill anyone and if you do that there will be consequences.
The tobacco industry was the first industry to have a rude awakening of sorts, concerning issues related to pregnancies. To a lesser extent, they’ve also recently had issues around flavored nicotine cartridges and vape pens because of how they seem to target children in particular. Other examples include the Bayer settlements from adverse effects from Roundup weed killer and the opioid settlements where four companies are contributing a record $26B to victims and their families. One of those four companies, Johnson and Johnson, is facing another potential settlement and has decided to try a different approach this time around.
There are at least 40,000 people who have filed class action lawsuits against Johnson and Johnson, claiming that their talcum baby powder has led to them getting cancer. To their credit, Johnson and Johnson have denied all wrongdoing while simultaneously halting sales and recalling baby powder products. To add insult to injury, the company has utilized a maneuver known as the Texas Two-Step to make it more difficult for anyone who is a part of this lawsuit to receive any compensation.
The Texas Two-Step is a two-step process to avoid any type of financial liability. The first step is to create a shell company, a fake company that only exists on paper, and transfer all of your liabilities to that particular sham entity. The second, and most important, step is to then immediately file bankruptcy and claim that the organization does not have the funds to cover these liabilities or any related lawsuits as a result. The case is now being decided in the U.S. Court of Appeals to determine whether this is legal and was done in good faith, but regardless of the outcome, I think we should expect this case to go all the way to the U.S. Supreme Court. The ruling by the Supreme Court will then set a precedent for all other organizations that may face a potential class action lawsuit.
If the Supreme Court decides that companies can simply push liabilities to shell companies whenever things hit the fan, every organization is going to follow suit immediately. If the Supreme Court decides that this is illegal then that represents another seismic shift in restoring some of the balance to the consumer instead of leaving them at the mercy of this handful of billion-dollar companies. It’s like we’re watching a morality play in real-time, as we’re going to see if Johnson and Johnson will get away with giving thousands of women cancer or if there will be some sort of redemption arc for the victims and accountability for the company. We will find out very soon if certain virtuous lines can’t be crossed or if this is yet another example of the Supreme Court letting all of us citizens down.
Remember, it’s business. Never personal.
Pass this on to a friend (or three) and tell them to sign up here if you enjoy this newsletter.