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Dow breast implant case spotlights Elizabeth Warren’s work helping big corporations navigate bankruptcies

Elizabeth Warren pitched herself as a consumer advocate during her campaign against Sen. Scott Brown (R-Mass.) in 2012. (Michael Dwyer/AP)

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.”

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.

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.

At issue are two decades when Warren enhanced her income as a law professor by consulting on various legal issues and representing clients. Some seem to fit her present-day brand: She worked on behalf of asbestos victims and represented the environmental lawyer whose story became the basis of the 1998 film “A Civil Action.”

But in about a dozen cases, Warren used her expertise to help major companies or their lawyers navigate corporate bankruptcies. In many cases, she was hired to argue motions, swooping in to offer her analysis and persuade a judge with her knowledge of bankruptcy law.

These include her work on behalf of plane manufacturer Fairchild Aircraft after a crash that killed four people, including NASCAR star Alan Kulwicki. Warren argued that Fairchild should be shielded from liability because the plane that went down was made by a company that had gone bankrupt. (She lost.)

In another case, Warren represented Southwestern Electric Power Company, a firm that relied on Warren when its bid to buy power plants from a bankrupt energy co-op was jeopardized by allegations of vote buying. (She won.)

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The work supplemented her salary from Harvard University, which was about $185,000 a year in the mid-1990s, employment records show. Warren has not released tax returns from the 1990s, when she did much of the corporate work. But court records show she was paid as much as $675 an hour, which was at or below market rate for her level of expertise.

From 2008 to 2010, a period for which Warren has released tax returns, her outside work brought in an average of about $200,000 a year. That included royalties from books and enabled Warren and her husband, Bruce Mann, to bring in nearly $1 million in each of those years.

In total, Warren worked on roughly 60 outside cases starting in the 1980s, according to her campaign and a Washington Post review of records. It’s common for law professors — particularly those who have expertise that intersects with large companies — to do outside corporate work, though some have raised concerns about the practice.

Warren declined an interview request. Her campaign in May released a 4,000-plus-word document listing cases and summaries of outside work after The Post and other news organizations requested them. Warren previously had released a shorter list, with just 13 cases, when she ran for the Senate in 2012.

Orthman, the Warren campaign spokeswoman, said Warren’s roles focused on fairness.

“Her scholarship and her expertise is around rules to make sure when a company goes bankrupt, the resolution of that bankruptcy is maximally beneficial for everybody involved,” Orthman said. “This includes making sure that the most people possible who have been harmed by the company get paid, and also allowing the company to survive where possible.”

Bankruptcy expert

Warren had a lot to offer financially troubled companies: In the 1990s, when she did much of her corporate work, Warren was an expert on bankruptcy who taught law at the University of Pennsylvania and Harvard. In 1995, she became a consultant on the National Bankruptcy Review Commission, a congressionally mandated panel that recommended changes to bankruptcy laws. That role enabled her to provide corporate America a clear sense of where the law was changing.

Warren’s decision to work for Dow Chemical stands out because the litigation involved tens of thousands of women claiming that the company’s breast implants had harmed them. Dow Chemical didn’t respond to repeated requests for comment.

In the early 1990s, thousands of women began suing after breast implants filled with silicone gel ruptured. Removing all the silicone was difficult or impossible; doctors testified that the leaked silicone was linked to autoimmune diseases.

Dow Corning was the leading maker of implants but stopped manufacturing them in 1992. The company, a privately held firm, was owned equally by the publicly traded companies Dow Chemical and Corning.

In May 1995, Dow Corning filed for bankruptcy, a move that froze the litigation against it and halted payments to women. The company then established the $2.3 billion fund for the women’s claims.

From the start, Dow Chemical was optimistic it would continue to thrive. The company noted in its December 1995 annual report that there was only a “remote” chance that the lawsuits would “materially” impact its financial position. Though the company made payments, Dow Corning disputed that the silicone from ruptured implants caused health problems.

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.”

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Orthman said that Warren’s involvement was limited to working “on a few occasions in the late 1990s” when “Dow and the tort claimants were on the same side trying to resolve and defend the agreement.” She declined to provide the exact dates of Warren’s work.

In a 1998 article in the Harvard Law Bulletin, Warren described the benefits of Chapter 11 bankruptcy for Dow Corning and other parties.

“Epidemiological studies have not linked its [Dow Corning’s] breast implants with the alleged injury, connective tissue disease, but the company has faced a torrent of lawsuits nonetheless,” Warren wrote. “The company vigorously defended itself and was willing to litigate the issue of causation, but as the cases multiplied the company agreed to pay $2 billion to settle the claims.”

She noted that Dow Corning was spending $3 million a week in legal fees when it filed for bankruptcy in May 1995, including 91 trials scheduled for the following six months.

“Chapter 11 offered the possibility of sharply reducing the number of lawsuits — and the number of lawyers — needed to determine if Dow Corning was responsible for any injuries,” Warren wrote. “If Dow Corning were liable, the money saved on attorneys’ fees would fund significant repayments.”

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.

Richard Hazleton, who was chief executive of Dow Corning from 1993 to 2000, said Dow Chemical had two primary goals during that period: ensure that Dow Corning emerged from bankruptcy as an “economically healthy and viable company,” and wall off Dow Chemical, the deep-pocketed parent, from liability.

“The overall strategy was to ensure the liability, such as it was, was confined to Dow Corning,” Hazleton said. He said he did not know what Warren’s role was.

Warren’s work for Dow Chemical has caused her trouble in the past.

When she released the 13 cases during her 2012 campaign, the list didn’t include it.

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.”

Warren initially declined to answer questions about the case in 2012, saying she was bound by attorney-client privilege, according to local news accounts. Her 2012 Senate campaign then offered some additional detail, saying Warren was consulted after Dow Corning went bankrupt.

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.”

Two decades after Warren consulted on the case, the matter is ongoing.

The agreement with Dow Corning gave women 15 years to make claims. The deadline for the last claims passed in June.

Elise Viebeck and Alice Crites contributed to this report.