Reviewed by Matthew J. Goldstein, Esq.

We are excited to announce that Wallace Miller attorney Matthew J. Goldstein has been named chair of the Chicago Bar Association (CBA) Class Action Committee for the 2024-2025 year. Matt will host his first meeting as chair on November 6, 2024 at the Wallace Miller offices.

The Chicago Bar Association’s committees form the core of its legal, educational, and advocacy work. During his yearlong tenure, Matt will help bring together Chicago-area attorneys to discuss the latest in class action procedures, share strategies and best practices, advance legal education, and connect with esteemed professionals in the field.

What is the Chicago Bar Association?

Currently celebrating its 150th year, the Chicago Bar Association is one of the oldest and most active bar associations in the U.S. The CBA has more than 17,000 members including lawyers, judges, law students, and professionals from Cook County and Illinois as well as representatives of law firms from across the country.

Bar associations are location-based groups of lawyers founded to improve the administration of justice, provide legal education to lawyers and to the general public, and connect legal professionals with their colleagues. As one of the most respected bar associations in the country, the CBA makes a major impact on the practice and knowledge of law in Illinois and beyond.

The Chicago Bar Association offers a variety of programming, including:

• Sponsoring education programs to expand public knowledge of the legal and constitutional system.
• Partnering with the Chicago Bar Foundation and Lawyers Lend-A-Hand to provide high-quality, affordable legal services.
• Working to make the bar more racially and ethnically reflective of the city of Chicago.
• Providing continuing legal education (CLE) programs, as well as facilities and services for members.
• Mentoring law students and young lawyers through the Young Lawyers Section.
• Providing public legal services like the monthly Law at the Library events, which offer free, virtual legal advice in partnership with the Chicago Public Library and Evanston Public Library.

The CBA’s Practice Area Committees offer education and insight in specific legal areas, from employee benefits to antitrust law. In September 2024, the CBA tapped attorney Matthew J. Goldstein to serve as the chair of the Class Action Committee for a one-year term.

Matthew J. Goldstein appointed chair of the CBA’s Class Action Committee

Matthew J. Goldstein fights tirelessly for his clients and to change the law for the better. His practice focuses on class action litigation and consumer protection law and he has represented clients in a range of complex disputes in state and federal courts, including a recent appeal before the U.S. Court of Appeals for the Seventh Circuit. Matthew is admitted to practice in Illinois, before the Court of Appeals for the Seventh Circuit, and in United States District Court for the Northern, Central, and Southern Districts of Illinois, Northern and Southern Districts of Indiana, Eastern District of Missouri, Western District of Wisconsin, and Southern District of Texas.

Matthew believes in the power of class actions to make a positive difference, both for individual clients and for the justice system as a whole. “Litigation like we do here, going after these companies, is one way to hold these bad actors accountable and keep them in check,” Matt says.

As the chair of the Class Action Committee for the 2024-2025 year, Matt will help build engagement between lawyers and those outside of the legal field. He will organize the CBA’s class action programming and its continuing education for members and continue to develop the association’s role within the justice system.

The role of the Chicago Bar Association Class Action Committee

Of the 17,000 members of the CBA, 5,000 belong to one or more of the 100-plus committees organized by the association. The work of these committees is at the core of the CBA’s mission of engagement, education, and communication.

The Class Action Committee connects lawyers working on class action lawsuits, improves education in the field, and advances policies that benefit clients and the legal system at large. As chair, Matt will work to build engagement, organize meaningful speakers on relevant topics, communicate with members, and encourage and represent diversity.

This is an exciting position at one of the foremost bar associations in the country, and we hope you’ll join us in congratulating Matt on his appointment. We look forward to continuing to connect with clients and the legal community over the course of his tenure with the CBA.

Learn more about Matthew J. Goldstein and listen to his interview with WGN’s Let’s Get Legal.

Looking for legal advice? Check out the resources available at the Chicago Bar Association website or contact Wallace Miller at (312) 261-6193 to discuss your situation free of charge.

What is “discovery” in a civil lawsuit?

Discovery takes place during the pre-trial process—the phase between when the plaintiff’s case is filed against the defendant and when the trial begins. In a civil lawsuit, the plaintiffs file their case because they believe the defendant has harmed them physically, financially, or otherwise. Civil cases are typically resolved through financial compensation and have a lower burden of proof than criminal cases. 

At its most basic, discovery is the formal process both sides go through to gather information about the case before a trial. Plaintiffs and defendants collect and exchange information and documents through a variety of discovery methods to flesh out their understanding of the case. 

Certain relevant information may be solely within the possession of the defendant and, therefore, unavailable to a plaintiff at the time their case is filed. As such, discovery is crucial to building a case. While discovery rules vary by jurisdiction, the process generally calls for the production of information about “any non-privileged matter that is relevant to any party’s claim or defense.” 

What is the purpose of discovery in a civil trial?

During this process, both sides of a litigation obtain discovery information before a trial and submit that evidence to a judge. But why does discovery matter? 

Discovery is permitted to help attorneys and judges: 

Set up a level playing field. While shock evidence may be common in TV crime dramas, real courts try their best to avoid surprises. Before the trial, both sides should know what evidence is going to be presented, so that they’re fully prepared with a response. Discovery helps prevent anyone from withholding evidence or witnesses from the court and seeks to ensure that both sides have the same information to work from. If both sides are fully equipped with the facts, they are better able to argue more specific legal issues in court. 

Establish the scope of the case. Attorneys will narrow down what a case is about and identify relevant facts, which can keep the process from dragging on. 

Resolve disputes. Discovery is a chance to learn more about your opponent’s case, which can help both parties decide whether they want to continue to trial or negotiate a settlement. 

Analyze applicable legal issues. Based on the facts uncovered during the discovery phase of litigation, attorneys on both sides will conduct in-depth research into the legal issues in question to help them argue their case. 

Streamline the trial. Trials are time-consuming. By establishing the facts of the case before entering the courtroom, plaintiffs and defendants can keep things moving during the trial phase. 

File motions. Motions are written submissions to the court asking the judge to rule on some aspect of the case. They can help attorneys get access to the information they need, narrow the focus of the case, or even dismiss the case entirely. 

Tools of the discovery process

Plaintiffs and defendants have a number of tools they can use to obtain information during discovery: 

Interrogatories

Interrogatories are written requests sent by one party to another asking for answers to specific case-related questions. While each state has individual rules, the number of questions is usually limited. Typically, interrogatories are used to obtain basic information, such as details on people, corporations, facts, witnesses, document locations, and records. The recipient is required to answer in writing and under oath. 

Depositions

Depositions are out-of-court testimony from a witness, taken under oath. They can help plaintiffs and defendants vet a potential trial witness and give counsel the chance to build their case around the testimony. 

Depositions can be written in certain circumstances, but they are almost always taken orally. Oral depositions are usually attended by the witness providing the deposition, attorneys from all parties, and the person administering the oaths and recording the testimony. All parties have a chance to question the witness in oral examination, and lawyers are not permitted to coach their clients. 

In most jurisdictions, information from an oral deposition is not directly admissible at trial, with three exceptions: if the witness admits something that goes against their interest; if the witness’s testimony at trial contradicts what they said in the deposition; or if the witness is unavailable at the trial. 

Requests for admission

In a request for admission, one party will ask the other party to admit or deny a fact—such as the truth of a statement—under oath. A discovery request typically consists of multiple statements that can be admitted or denied and is used to authenticate information and establish basic facts of the case. 

The information provided is binding, but requests for admission are typically not about proving guilt or liability. Instead, it helps the defendants and plaintiffs agree on certain basic facts (for example, their business addresses) so that they don’t need to be established during the trial. 

Requests for production of documents

This is the most common way to gain access to documents during discovery. One party will ask the other for copies or originals of certain documents or other physical evidence related to the case. Where disputes arise, the parties can ask the court to compel the other side to provide the requested materials, as long as they are related to the case and not privileged. 

In complex, multi-plaintiff litigations, the defendants’ document productions can be extremely large—requiring the plaintiffs’ attorneys to sift through tens of thousands if not millions of documents to find what they’re looking for. 

What information is available through discovery requests?

Any information related to the lawsuit can be obtained through discovery, unless it’s “privileged,” or legally protected. This information can include documents, business information, reports of conversations, witness details, and much more. 

However, several categories of information are protected from discovery. These include: 

• The attorney’s work product, or work prepared by a lawyer for litigation. 

• Confidential conversations between people with a privileged relationship—such as spouses, lawyers and clients, patients and doctors, and religious advisors and their advisees. 

Additionally, the court may prevent the parties from having to produce certain sensitive or private information, including: 

• Private matters that aren’t directly related to the case—for example, religion or sexual orientation. The implementation of this protection is controversial, however, and varies by state. 

• The private information of people who aren’t directly involved with the lawsuit, such as coworkers or family members. 

Depending on the subject of the litigation, the judge might enter a protective order to keep sensitive information that is produced to the parties in the litigation from being shared with non-parties or filed on the public record.

The role of an attorney in discovery

Discovery is one of the single most important aspects of the litigation process. It defines the terms of the case and sets both sides up for success—or failure. A good attorney will have a thorough and nuanced grasp of the full discovery process and will work together with the defendant and the court to make sure your case is on the best possible footing going into trial. 

A good plaintiff’s attorney will also be your advocate—which may include advising you to take a settlement before the trial process begins. Depending on the information gathered during discovery, both sides may agree that a settlement payout is a more effective remedy for the harm caused. 

Questions about what discovery means for your lawsuit? Reach out to our legal team at (312) 261-6193. With over 75 years of collective experience in personal injury, class action, and mass tort law, Wallace Miller attorneys are experts in the legal process from filing to resolution.

Waiting years for your case to resolve can be frustrating. Many mass tort, class action, and personal injury cases are time-consuming and can last years. Especially when you’ve already been waiting to seek justice, it can be difficult to deal with the delay. 

While the circumstances of specific cases have a large impact on their timeline, the overall litigation process is a lengthy one. Factors that generally impact the duration of the case included how complicated the legal issues are, the schedule of the court overseeing the litigation, and negotiations with the defendants’ lawyers. 

From discussing your potential case over the phone to making sure we get your compensation, the legal team at Wallace Miller is always working hard to move your case forward. We are committed to keeping our clients apprised of our progress through consistent updates and communication. If you have questions about your lawsuit, reach out directly to the paralegal on your case or call our main office at (312) 261-6193. 

What is civil litigation?

In a civil case, the plaintiffs allege that actions taken by the defendant harmed them financially, physically, or otherwise. The plaintiff is generally asking for a monetary award as compensation for their injuries or damages. Civil lawsuits include class actions, mass torts, personal injury lawsuits, and more. 

Civil cases can’t send the defendant to jail, and have a lower burden of proof than criminal cases. Rather than proving the crime beyond a reasonable doubt, in civil court, the plaintiff must provide a preponderance of evidence (meaning the allegation is more likely true than false) that the defendant is at fault. (Read more about plaintiff litigation and civil cases here.) 

Elements of a lawsuit

On its most basic level, a lawsuit consists of a plaintiff, who files a complaint claiming harm done by the defendant. That action launches the official court case. The plaintiff might ask for damages (monetary compensation), an injunction (for the defendant to stop or start doing something), or a declaratory judgment (a legal statement of the plaintiff’s rights). The final judgment is made by a judge or jury and may result in legal consequences. 

At any point in the litigation process, the parties can choose to resolve their dispute between themselves in a settlement. Trials are slow and expensive for everyone involved, and so judges often encourage the plaintiffs and defendants to reach a settlement. This can be faster, saves time and money, and may give both parties more control over the outcome (if the case goes to court, both sides are bound to abide by the judge’s decision). 

For these reasons, more than 90% of all legal cases end in settlement. However, it is your Constitutional right in the U.S. to request a jury trial (or waive your right to a jury and be heard by a judge). 

Stages of a litigation

Each court will have a different system of rules, which are further detailed by the judge overseeing the case. However, any given civil lawsuit will generally fall into the same overall process. 

The case timeline is partially determined by the judge. They will set the deadlines and timeframes for each stage of the litigation. Counsel on both sides will often request extensions to deadlines in order to gather more information, and it is up to the judge how much additional time is granted. 

At any point in the litigation process, the plaintiffs and defendants may choose to settle. Settlements are much more common than a case proceeding all the way to court. 

Before filing a suit

Several steps are taken by the plaintiffs and defendants before a lawsuit is filed. Both sides will gather preliminary information on the potential case and may attempt to negotiate a resolution. Plaintiffs’ attorneys may request medical records from plaintiffs’ medical providers in order to validate that they have a claim. 

This is a highly flexible phase of the litigation, as both parties gather information, and can take several months to complete. 

Filing a complaint

In an official pleading, one party (the plaintiff) files a complaint, and the other party (the defendant) files a response. The complaint from the plaintiff’s attorney will describe the damages and/or injury sustained, explain the alleged defendant responsibility, demonstrate why the specific court in which the plea is filed has jurisdiction, list the laws violated, and ask the court to resolve the issue. 

The defendant response usually takes the form of an “answer,” consisting of responses to the complaint’s assertions, or a “motion to dismiss,” which argues that the specified law wasn’t violated or the complaint has other fundamental problems (such as issues with the statute of limitations). If a motion to dismiss is granted to all claims, the case is over–although sometimes the plaintiff is permitted to file an amended complaint. 

This process typically takes a few months, but can run longer. Timelines for how long the plaintiff has to serve the complaint, and how long the defendant has to answer, will vary by state and court. If the litigation goes forward, the court will schedule a conference to establish a general timeline of discovery. 

Discovery and the pretrial process

During the discovery phase, both sides gather and exchange information and learn about the strengths and weaknesses of the case. They are legally required to provide information to each other with the goal of preventing any potential surprises at the trial. 

Information gathered may include records and documents, answers to written questions, statements from relevant parties, expert examinations, and depositions. Both sides will gather witnesses and file motions with the court attempting to narrow the issues at trial or resolve the case entirely. This stage often involves settlement discussions, as both sides attempt to come to an agreement before the trial. 

The discovery stage is time-consuming. In complex cases, both sides must sift through thousands—sometimes millions—of documents, determining what information they need, what information they don’t have, and what additional questions they want to ask. Often the deadlines will be extended in order to investigate unsolved questions or locate additional resources. 

Your day in court

Should the case make it to trial–rather than going into settlement negotiations between plaintiffs and defendants–the case will be heard by a judge and, in some cases, a jury. The evidence will be presented and witnesses brought by both sides will be examined. After deliberation, the judge and/or jury will decide the case and enter the judgment. 

In a jury trial, the jury generally determines both whether the defendant is responsible and how much the defendant should pay. The plaintiffs can also opt for a “bench” trial, or a trial in which there is no jury and the judge makes all case decisions. 

After the trial

After the trial, parties will file any post-trial motions and the settlement–if any–will be distributed to plaintiffs. Depending on state and local laws, both sides may have the option to appeal the case to a higher court. 

Other elements that can delay trials

While many of the delays in the litigation timeline are part of the process, others are due to efforts by one party to slow down the lawsuit in an effort to avoid paying. One of the most egregious examples of this is defendants in mass tort cases trying to push litigation into the bankruptcy court system through the so-called “Texas Two-Step.” 

In the Texas Two-Step, a profitable company facing litigation from consumers shifts their legal liability to a subsidiary, and then declares bankruptcy on behalf of that subsidiary. Because of a loophole in U.S. bankruptcy law, this automatically pauses all lawsuits against the parent company. The claims may be shifted into bankruptcy court, which usually results in lower payouts for plaintiffs. And even if the bankruptcy petition is rejected (as recently occurred with lawsuits against 3M and Johnson & Johnson), the Two-Step can drag the process out by several years. 

Read more about the Texas Two-Step and what Wallace Miller is doing to advocate for your case here. 

Why do class actions take so long?

While class action lawsuits generally follow the standard process of civil lawsuits, they include several additional elements that can increase the length of the litigation.  

During case filing & coordination

After the initial case filing, class actions often go through the processes of consolidation and appointing leadership. This usually occurs in situations where multiple potential class action lawsuits are filed relating to the same issue or conduct.  In those situations, the cases may be grouped together in one district to be investigated more efficiently. If multiple law firms have filed class action cases on behalf of their individual clients, the court is asked to decide which of those attorneys will be appointed to lead the consolidated cases as Lead Counsel, Co-Lead Counsel, or via Leadership Committee. This process may take months to complete. 

After the cases are consolidated and leadership is decided, the plaintiffs’ leadership counsel will often file a consolidated complaint on behalf of the whole group (or “class”). The defendants typically then file a motion to dismiss the consolidated claims, which can take another six months or more to decide. 

During discovery

Discovery in class action cases encompasses not only traditional liability discovery–investigation into the alleged wrong committed by the defendants and gathering the necessary evidence to win the case–but also class discovery. Class discovery involves obtaining the necessary information to show that a class action is appropriate in this circumstance. There are a number of qualifications that must be demonstrated, including: 

• There are enough people for a class action; 
• The members of the class share common questions of fact; and 

• The class interests will be protected. 

Class certification

Class action cases involve an additional, and sometimes lengthy, stage that other types of cases do not: class certification.  In order for a case to proceed as a class action—as opposed to an individual action—plaintiffs must ask the court to “certify” the class.  That process always includes the filing of a motion by the plaintiff, and sometimes also includes the submission of expert testimony on issues relating to the class and its members.  Unless class certification is done as a part of an agreed settlement, the opposing party will oppose certification and likely seek to strike the plaintiff’s experts. The court will then rule on whether the class can be certified before the litigation can move on. 

During settlement

In a single event case, like a car crash or a medical malpractice suit, the client typically receives their compensation relatively quickly. In class actions, however, the settlement process is more complicated. After the settlement negotiations have concluded, the parties will first seek preliminary approval of the settlement. If the court grants that approval, the next step is to notify the eligible class members that they can participate. Those individuals then have a set period of time (often 30 days) in which they can choose to participate (either by doing nothing or submitting a claim, depending on the settlement type), opt out, or object to the settlement. 

After the notice and claims period, the parties will move for a final approval of the settlement. Before granting final approval, the court will ensure that the settlement is in the best interests of the class and deal with any objections by class members. Only after the court issues a final approval order will the settlement administrator begin distributing money to the class participants. This process alone can take months or even years and can be further delayed if objectors seek to appeal the final approval decision. 

Why do mass torts take so long?

In mass tort cases, every plaintiff’s individual story, injuries, and medical history must be investigated. As a result, they typically take longer than single personal injury cases. 

Discovery is generally the most time-consuming component of mass tort litigation. This stage includes both general liability discovery (interviewing corporate employees, finding experts on the product in question, and so on) and case-specific discovery (investigating the details of a plaintiff’s individual injury, medical treatment, and case circumstances). 

Most mass tort cases will also have a few early bellwether trials to help both the defendants and the plaintiffs’ attorneys determine how the litigation is likely to go. If the plaintiffs win most bellwethers, the defendants will likely settle for higher amounts. If the defendants win, they will often still settle, but for a lower amount. 

The size of a mass tort can also impact its litigation timeline. For consumer products such as Roundup or talcum powder, there are potentially tens of thousands of cases, each of which will need to be investigated individually. Finally, during the settlement process, it takes time to negotiate with health insurers and resolve medical liens. 

What are the steps in a personal injury lawsuit?

Single event personal injury cases move more quickly than mass torts or class actions, typically taking between 18 months and two years. In cases like these, which include lawsuits over car accidents, medical malpractice, and workplace bias, the discovery process takes up the largest share of time. Personal injury lawyers will exchange written and oral discovery, interview witnesses and experts, and file motions before the case moves on to trial. 

Personal injury settlements often pay out more quickly as well, because compensation only needs to go out to one plaintiff (rather than hundreds or thousands as in mass torts and class actions). Issues such as plaintiff bankruptcy, dealing with the insurance company, or medical liens may delay the resolution, but the client is usually entitled to their compensation immediately after the settlement. 

Contact Wallace Miller

Whether your litigation takes months or years, the legal team at Wallace Miller has your back. We understand how difficult it can be to wait for justice on your case–and we’ll do everything we can within the system to move your lawsuit forward. From filing suit to resolution, we’ll make sure you know what’s happening every step of the way. 

Questions about your lawsuit? Reach out directly to the paralegal on your case or call our litigation specialists at (312) 261-6193. 

Table Of Contents

The purpose of bankruptcy is to give individuals and businesses in debt a “fresh start” while protecting the rights of the people to whom they owe money. However, some companies use the bankruptcy courts to avoid taking full responsibility for litigations. 

The bankruptcy code (set out by title 11 of the United States Code) is incredibly complicated and some aspects of the process are controversial. If you are a plaintiff in a case and the defendant has just declared bankruptcy, we’ll help you understand what it means for your case. 

December 2024 defendant bankruptcy update

A bill intended to crack down on defendants’ attempts to dodge legal liability through the bankruptcy system has been reintroduced in the Senate. 

The Nondebtor Release Prohibition Act (NRPA) of 2024 was brought forward in early December by Massachusetts Senator Elizabeth Warren, Illinois Senator Dick Durbin, and Connecticut Senator Richard Blumenthal. First introduced in 2021, the bill would: 

• Allow courts to dismiss bankruptcies if the bankrupt party was formed through a so-called Texas two-step (a maneuver in which a parent company spins off a smaller company to hold its liability and then declares bankruptcy on behalf of that company). See below for more details on how the Texas two-step works. 

• Limit how long litigations can be paused for defendant bankruptcy. Currently, when bankruptcies are filed, all litigation and collection efforts are paused not only for the company filing bankruptcy, but also for its affiliates—including its parent companies. 

• Codify the Supreme Court’s June 2024 ban on non-consensual third-party releases. The bill would require debtors to provide clear information and obtain individuals’ active sign-off on these releases (rather than, for example, counting their failure to object or return a ballot as consent). 

For years, the Texas two-step has been used by defendants like Johnson & Johnson and 3M to dodge liability and avoid negotiating with the people their products have harmed. The NRPA represents an encouraging step towards a legal system in which individuals can hold wealthy corporations accountable without years of delay tactics preventing the fair administration of justice. 

Bankruptcy code basics

What is bankruptcy?

Bankruptcy is a legal process that may take place when a person or business can’t pay off their debts. Through filing in a bankruptcy court, the debtor (the person in debt) either liquidates their assets or creates a repayment plan. 

While there are many types of bankruptcy, businesses have the option to file through either Chapter 7 or Chapter 11 of the U.S. Bankruptcy Code. In a Chapter 7 bankruptcy, also called a liquidation bankruptcy, the debtor’s property is sold in order to pay off their debts. In a Chapter 11 or reorganization bankruptcy, the debtor proposes a plan to the bankruptcy court to reorganize the business, often through a partnership or acquisition, and repay debts over time. 

All bankruptcy cases must be filed in federal court. Across the U.S., there are 90 bankruptcy courts—one per federal judicial district, with a few exceptions. Each court is state-run and has its own local rules in addition to federal laws. 

What are the requirements to file bankruptcy?

Bankruptcy is generally filed by those unable to pay their debts, whether individuals, businesses, or other debtors. Specifically, Chapter 11 (the most common bankruptcy filed by defendants in mass tort cases) is usually filed by companies who need time to restructure their debt with the goal of eventually becoming financially secure. 

The bankruptcy process itself is expensive, and generally comes with consequences including lowered credit and damage to a business’s reputation. That said, under both Chapter 7 and Chapter 11, almost any business or individual in the U.S. is allowed to file for bankruptcy—regardless of their income or debt amounts. This means that theoretically any corporation can file a bankruptcy petition, even if they are not in financial difficulty. 

What happens after a company files bankruptcy?

As soon as a bankruptcy petition is filed, an automatic stay goes into effect for the debtor. This injunction immediately stops all lawsuits against them, effectively protecting them from litigation until the process is resolved. 

The case will go to bankruptcy court, which will manage the process and determine the validity of the debtors’ claim. If the petition is allowed to go forward, lawsuits against the debtor won’t be heard by juries—instead, they will be handled by the bankruptcy judge. 

Litigation is already a time-consuming process, and whether or not the bankruptcy goes forward, the petition and subsequent court process can extend the timeline by a year or more. The more corporations are able to delay, the more likely it is that plaintiffs will give up on their cases or that relevant evidence will no longer be available. While these delays can be frustrating to plaintiffs, lawyers, and courts, we are committed to seeing your case through regardless of how long the bankruptcy process takes.  

Key terms in the bankruptcy process

Automatic stay: An injunction that goes into effect the moment bankruptcy is filed. It pauses any lawsuits and collection activity against the debtor. 

Bankruptcy petition: The document filed that opens the bankruptcy case. 

Chapter 7 Bankruptcy: Also called a “liquidation” bankruptcy, this type of bankruptcy can be filed by individuals, partnerships, and businesses and involves selling off the debtor’s property to pay off debts. After a business declares Chapter 7, it will cease to exist. 

Chapter 11 Bankruptcy: Also called a “reorganization” bankruptcy, Chapter 11 usually involves a corporation or partnership. In this type of bankruptcy, the debtor proposes and executes a plan to reorganize their business and repay debts over time. As a result, the business can continue to exist and work towards becoming financially successful again. 

Creditor: The individual or business to whom money is owed. 

Debtor: The individual or business who has declared bankruptcy. In cases where a defendant in a litigation files for bankruptcy, the defendant is the debtor. 

Understanding defendant bankruptcy

Why would mass tort defendants declare bankruptcy?

In multidistrict litigation (MDL), the cases of many plaintiffs against the same defendant or group of defendants are consolidated in one court. This enables plaintiffs, defendants, and courts to gather information that applies to all cases, rather than conducting hundreds or hundreds of thousands of cases individually. 

Generally speaking, if a defendant in an MDL is allowed to declare bankruptcy, a trust is set up to pay out any outstanding mass tort claims. Going through bankruptcy trusts almost universally result in much lower compensation amounts for plaintiffs in the litigation. “These bankruptcies are described as a ‘maneuver’ for a reason,” says Arielis Reyes, a paralegal at Wallace Miller. “Big businesses use them to seek resolution in another court, because the settlement amount might be reduced or eliminated.” 

In short, if a company can successfully file bankruptcy while maintaining company operations, it can offload the burden of paying for litigations and preserve its bottom line—at the expense of the plaintiffs who have brought cases against it. Bankruptcy procedures also prevent the lawsuits from being heard by juries, instead resolving them through bankruptcy courts, in which plaintiffs have no choice but to abide by the plan worked out by the committee. Finally, depending on the reorganization plan, declaring bankruptcy may shield the defendant from future legal liability. 

The history of bankruptcy court and MDLs

The case generally regarded as the first to involve a bankruptcy in an MDL process is the 1982 Johns-Manville bankruptcy. The company, which manufactured and distributed asbestos products, was sued by thousands of individuals in the early 80s. In 1982, they filed bankruptcy, which automatically suspended all lawsuits. Contemporary scholarship published by the Notre Dame Law School found that the reorganization plan was “an attempt by a healthy and solvent corporation to declare bankruptcy” in bad faith and called for its dismissal. However, the bankruptcy was allowed to go forward, and a trust fund was created in 1988 to settle current and future asbestos-related claims. 

The trust began with $2.5 billion—not nearly enough money to pay all claimants what they would be owed under a non-bankruptcy settlement. As a result, the trust does not pay claimants the full settlement value, but rather 5.1% of the value at each compensation level. 

Drug maker Purdue Pharma and its owners, the Sackler family, have become notorious in recent years for their links to the ongoing opioid epidemic. Their medication OxyContin has been blamed by experts in public health for helping to start the opioid crisis. More than a thousand lawsuits had been filed against the company by 2019. 

In 2019, the company filed for Chapter 11 to address the claims against them and an automatic stay was placed on litigation. In 2021, a federal bankruptcy court in New York approved a global settlement that included wealthy members of the Sackler family. Through the $6 billion settlement trust, to which the Sacklers pledged to contribute (although not before withdrawing $11 billion from the company), Purdue Pharma and the Sackler family would have been able to resolve current lawsuits and walk away free from future civil claims. In addition, although Purdue Pharma twice pleaded guilty to federal criminal charges, the Sacklers were never charged with any crimes. 

The case drew significant attention both to Purdue Pharma and the practice of using bankruptcy court to resolve mass torts. Experts pointed to the case as evidence of a trend that wealthy individuals and corporations are using loopholes in bankruptcy law to get out of liability. 

After years of contradictory court decisions, the plan was blocked by Supreme Court in August 2023. The petition was deemed to be an abuse of the bankruptcy system, as it could not be used to shield the Sackler family from all future lawsuits. 

In another recent case, the Boy Scouts of America have recently faced thousands of lawsuits by former scouts alleging sexual abuse during their time with the organization. In February 2020, the Boy Scouts filed for bankruptcy protection, claiming that they would not survive as an organization without bankruptcy resolution of the lawsuits, and the U.S. District Court of Delaware approved a $2.46 billion reorganization plan. This plan allowed the organization to keep operating while compensating those who submit claims to the trust. After multiple appeals, the 3rd U.S. Circuit Court of Appeals declined to put the settlement on hold, allowing the resolution through bankruptcy court to continue. The settlement was supported by 86% of claimants, and the BSA successfully exited bankruptcy in April 2023. 

What is the “Texas two-step”?

The “Texas two-step” refers to a legal but controversial method for shifting mass tort liability into the bankruptcy system. Under a divisive merger statute in Texas, a company can create a new subsidiary, then split present and future liabilities from the solvent parent company’s assets and assign them to this company. 

This effectively creates a new business entity which holds all legal liability, while the original parent company (or the other new company created by the division) keeps all its assets. Then, despite the fact that the parent company is still financially stable, the company holding the liabilities declares bankruptcy. This results in an automatic stay of litigation against the subsidiary and the parent corporation, and limits the amount the company will need to pay in compensation to the plaintiffs. It also means that the original company faces none of the consequences of bankruptcy, including damage to their credit rating or reputation. 

The use of bankruptcy court by wealthy corporations to avoid paying out their legal damages to people harmed by their products is highly controversial. Politicians, legal experts, lawyers, judges, and other advocates have been critical of the tactic and several high-profile petitions have recently been rejected. However, the maneuver remains legal and commonly utilized as an “escape hatch” in mass tort litigation. 

Case: 3M combat earplugs

3M is a Fortune 500 company that made $34.2 billion in net sales in 2022. Since 2018, hundreds of thousands of veterans have brought claims against the company alleging that the combat earplugs they produced with their subsidiary Aearo Technologies were defective, leading to hearing damage and tinnitus. 

After nearly four years of litigation, 3M abruptly declared bankruptcy on behalf of Aearo in 2022 and attempted to shift all liability to the subsidiary company. 3M has claimed it did so in response to a multidistrict litigation system “broken beyond repair,” alleging that many of the plaintiff claims hadn’t been vetted for legitimacy. However, plaintiffs’ lawyers have pointed out that 3M had no issue with the process until a majority of the initial jury trials were decided in favor of the plaintiffs, with more than $260 million awarded in damages. 

In June 2023, federal judge Jeffrey J. Graham of the U.S. Bankruptcy Court for the Southern District of Indiana denied the company’s request for bankruptcy and ruled that plaintiffs’ cases should be allowed to proceed. Two months later, in late August 2023, 3M announced that they had agreed to a settlement of just over $6 billion, pending acceptance by plaintiffs. “It’s good news,” says Wallace Miller partner Timothy Jackson. “This was a case with a bankruptcy, and now it’s settling. So bankruptcy doesn’t mean the end of the road by any stretch.” 

“It’s been a beautiful result in the 3M case,” Jessica Wieczorkiewicz, the litigation lead attorney at Wallace Miller, adds. “But we still lost that whole year.” 

Real-world impact: How 3M’s attempted bankruptcy impacts veterans

When Daniel, a veteran who served from 1988 to 2018, first heard about the lawsuit against 3M, he initially thought it was a scam. But as he read more about the case’s details, he realized how similar the allegations were to his situation. During his fourth deployment in 2008-2009, he says, “I remember using the 3M earplugs, I remember them being issued to us. We were given a tutorial on how to use them.” During that deployment, he was consistently exposed to loud noise, including machine gun fire—and after he returned home, he noticed his tinnitus for the first time. “And then I noticed how it got worse,” he says, “how my hearing loss actually seemed to increase.” 

There’s a trend in the military, Daniel says, of soldiers not always seeking the medical care they need when they need it. “I was worried that was going to be me as well,” he says. “Did I go to the doctor when I started noticing my tinnitus? Did I go when I started getting more significant hearing loss, or was I just being a soldier? We always suck it up—we think, ‘This is going to get better, this is just part of the job.’ At the end of the day it hurts a lot of people.” 

While it was initially challenging to track down his medical records, the military’s thorough documentation ended up paying off. Daniel was able to find the records of his doctor visits and provide the information needed to support his case. After that, the lawsuit was successfully filed and proceeded along the usual timeline. According to our attorneys, Daniel and plaintiffs like him would have typically already had a trial if not for 3M’s bid for bankruptcy. Instead, the process stalled. In the end, it caused almost a year of delay in the case. 

Daniel is prepared to be patient. “If the process takes a while, as long as it’s done right and 3M is held accountable, I’m okay with it,” he says. But that doesn’t mean the corporation’s bankruptcy gambit doesn’t bother him. The most frustrating part, he says, is “the fact that they’re trying not to take responsibility for the flawed product that they put out there. If they know that they caused these damages to a lot of people’s hearing, they need to take accountability and do what needs to be done.” 

A potential financial award in his case could help with quality of life and medical bills. But ultimately that isn’t what matters most to Daniel. “The hearing loss I suffer and the tinnitus I deal with… It’s 24/7. It doesn’t go away. And of course it bothers me some, but I’m not doing this for the financial gain,” he says. “You can’t really compensate me, unless you can take my tinnitus away. I’m going through this more out of trying to get justice or do what’s right.” 

“I’m going to deal with this for the rest of my life,” Daniel adds. “But to try to file bankruptcy just to get out of taking responsibility for the damages your product caused… It’s discouraging.” 

With the rejection of 3M’s tactics in this case, and in several other recent high-profile cases, some legal professionals hope that judges will crack down on these strategies. Big cases like these set a legal precedent. And, in the end, one of the goals of these lawsuits is to incentivize corporations to create safer products, products that consumers can trust. “When I was using the earplugs, I was doing the right thing to protect my ears,” Daniel says. “You want to continue to use products that are put out for their intended purposes. And hopefully they do what they’re supposed to, and they protect us in the right way—but we just don’t know what we don’t know.” 

The veteran is also familiar with the harm caused by opioid painkillers and the lawsuits that have been filed as a result. Doctors in the military would often prescribe opioids for pain management before it was proven how addictive they could be. Opioid addiction has become a widespread problem among veterans, and the role of opioid manufacturers and distributors in the epidemic has been the subject of multiple lawsuits. 

In cases like these, Daniel says, the money that he or others receive matters less than preventing it from happening again. “Maybe other companies in the future, they see these cases and realize, ‘You know what? We could cut corners this year. But if we do that, how are we impacting the lives of the people that are using their products?'” he says. “And hopefully these companies say, ‘Hey, it’s not worth the risk. Because we don’t want a lawsuit, so let’s do the right thing and let’s make a quality product for our consumers.'” 

3M’s initial settlement offer—presented after their request for bankruptcy was rejected by a federal judge—is currently under negotiation. While he’s looking forward to the end of the process, Daniel says, “one of the biggest things for me is that I hope it’ll be publicized across all media. Just to let everyone know that they—it’s hard to say took accountability for it, since they’ve been trying to dodge it left and right—but that at least the soldiers who suffered from using the earplugs, at least they got compensated in some way.” 

Daniel urges other veterans and service members impacted by the earplugs to do their own due diligence in terms of finding the records they need for a case. “Work with a good law firm that’s going to do their part,” he says, “and it’ll be worth it in the end, even if it’s just to keep the company accountable.” 

Case: Johnson & Johnson baby powder

Pharmaceutical company Johnson & Johnson (J&J) is the defendant in more than ten thousand claims consolidated in the U.S. District Court for the District of New Jersey. Plaintiffs claim that the company’s talc products, including their baby powder, contained asbestos and may have caused cancer. 

In October 2021, J&J established a subsidiary called LTL Management LLC to hold the liability for the talc lawsuits. Two days later, the company filed for protection from litigation under Chapter 11 bankruptcy in a classic Texas two-step. In January 2023, the Second Circuit court dismissed the bankruptcy filing, finding that LTL was not in legitimate financial distress. The case was formally dismissed in April 2023; hours later, J&J refiled for bankruptcy with a higher trust amount. 

The Chapter 11 case was again dismissed as of July 2023, with New Jersey bankruptcy judge Michael B. Kaplan once again arguing that it did not meet the standards for financial distress. The judge wrote: “Simply put, the debtor does not meet the more exacting gateway requirement implemented by the Circuit with respect to ‘good faith’ under 11 U.S.C. §1112(b), which would allow LTL to take advantage of the tools available under the Bankruptcy Code to resolve its present and future talc liabilities.” While these bankruptcy attempts have failed, they have delayed the litigation process by more than two years. 

The J&J bankruptcy attempts are a particularly egregious example of corporations attempting to avoid mass tort liability through bankruptcy court. The company is one of the wealthiest in the world, with more than $25 billion in cash reserves; in the first quarter of 2023, it paid out $2.9 billion in dividends to shareholders.  

Their bankruptcy petitions have attracted widespread attention, with politicians including Senators Dick Durbin and Elizabeth Warren speaking out against the company’s maneuvers and calling on Congress to close the Texas two-step loophole. 

Hear from our attorneys

The attorneys at Wallace Miller have dedicated their careers to representing plaintiffs against large corporations like 3M and Johnson & Johnson. Through mass tort and class action litigation, individuals who otherwise would not be able to stand against these companies have a shot at receiving compensation. 

The bankruptcy attempts by wildly profitable companies break that system. “The deck is already stacked against individual folks,” says Wieczorkiewicz. “This is just another example of big corporations finding loopholes to help themselves.” 

“It’s a really disappointing thing, any time you see the defendant pull this maneuver, because they’re trying to get away from being accountable for what they did,” she adds. “I can’t believe the law allows for it—it’s ridiculous that the tax code has this loophole that allows the defendants to do this when we all know it’s a sham.” 

Even if the bankruptcy bids are rejected, slowing the process is to the defendants’ advantage. “It’s part of their delay, delay, delay strategy, which causes the longest timelines,” Wieczorkiewicz says. “More time before payout is helpful for them. The more you delay, the less salient details are. People forget, or people aren’t able to get their medical records in time, or the statute of limitations passes. It makes people’s cases weaker. The more the defendants delay, the less evidence there is.” 

And if the bankruptcy petition is accepted, the entire litigation will be shifted to the bankruptcy courts and begin a new legal process. Under bankruptcy procedures, the courts determine how best to pay all of the debtor’s creditors from a set pool of money. Depending on where claimants fall in the line of creditors, they often receive a much smaller amount than they would be entitled to under non-bankruptcy courts. 

Still, these defendant bankruptcies are not a get-out-of-jail-free card. “We’re making sure everything that can be done is being done to protect your case,” Jackson says. “We won’t forget about you. The bankruptcy doesn’t mean your case automatically goes away.” And it isn’t only plaintiffs’ lawyers who are opposing the Texas two-step and unethical bankruptcy practices: federal and state judges are increasingly on the plaintiffs’ side, as more and more wealthy companies try to take advantage of the system. 

The most difficult thing to deal with in the litigation process can be the waiting, especially when bankruptcy stretches the timelines even further. But throughout this process, your lawyers are working tirelessly to make sure your case is heard. Ultimately, the wealthy corporations declaring bankruptcy are doing so in order to make the lawsuits against them go away. But Wallace Miller, plaintiffs’ lawyers across the U.S., and the growing number of judges and politicians opposing this tactic aren’t going anywhere. “We’re doing everything under the law to continue to fight for you,” says Jackson. 

What does a defendant bankruptcy mean for me?

How can a company claim bankruptcy when they are financially successful?

As law professor Melissa B. Jacoby writes in the Texas Law Review, there is an attitude in some legal professionals that “injured people might be better off if a financially struggling enterprise survived.” According to this argument, if a company goes under, no one will be paid anything, so it’s better to go into bankruptcy proceedings and receive less. 

While this may be true in situations where defendants are in genuine financial distress, in lawsuit after lawsuit this has been proven not to be the case. In 1982, law experts at Notre Dame emphasized that Johns-Manville was solvent, and in the past few years, billion-dollar companies 3M and Johnson & Johnson have tried to claim bankruptcy on behalf of their subsidiaries for the sole purpose of paying plaintiffs less. These companies are exploiting a loophole in bankruptcy law and effectively taking advantage of the system to avoid their liabilities. 

Writing in the Yale Law Journal, University of Georgia professor Lindsey D. Simon talks about companies that are solvent non-debtors attempting to rig the system. “These ‘bankruptcy grifters’ act as parasites,” she says, “receiving many of the substantive and procedural benefits of a host bankruptcy, but incurring only a fraction of the associated burdens.” 

What does a defendant bankruptcy mean for my lawsuit timeline?

In general, if a defendant in a mass tort litigation files for bankruptcy, it will slow the entire process down. This is because when an entity initially files their petition, they will then also file for a stay. This stay will pause all lawsuits against them and transfer existing proceedings into the bankruptcy court. 

As a result, the MDL judge will generally relinquish oversight of the case to the bankruptcy court. The cases that have been brought against the defendant will need to go through a completely new set of proceedings, as the bankruptcy court must re-review the cases against the defendant. 

In several prominent cases represented by Wallace Miller, including the talc litigation against Johnson & Johnson and the combat earplugs lawsuit against 3M, the defendant tried multiple times to declare bankruptcy. In both cases, the courts ultimately rejected the petitions, but the complicated court proceedings extended the process by years. 

As a plaintiff already involved in a time-consuming and stressful process, it can be frustrating to see further delays as a result of defendant bankruptcy claims. Our legal team does everything we can to battle these claims and hold successful companies accountable as quickly as possible. We believe that you deserve justice through a fair settlement or verdict. 

Will the legal system continue to allow these bankruptcy attempts?

With rulings against large corporations in cases like those regarding Johnson & Johnson and 3M, it seems as though opinion may be turning against the use of bankruptcy by these companies. “In general, courts have been skeptical of at least what Johnson & Johnson has done, the so-called Texas two-step,” says Jackson. But he adds that some states are always going to want to favor corporations legally in order to attract and keep business. 

However, Johnson & Johnson’s petition for bankruptcy has now been dismissed twice. “Big cases set legal precedent,” says Reyes, and this is a precedent that judges will likely cite in the future. And the more judges who rule that the Texas two-step is invalid, the stronger the plaintiff position becomes.  

As a plaintiff, what can I do about it?

There is very little that plaintiffs can do directly if a defendant declares bankruptcy. Legally speaking, the company is within their rights to file a petition, and as long as the loophole in the law that enables the Texas two-step continues to exist, they will continue to do so. 

However, rest assured that even when the defendants are trying to avoid their liability through bankruptcy courts, your lawyers are still fighting for you. The legal team at Wallace Miller works tirelessly to make sure that you receive the compensation you deserve. 

The attempts of large, wealthy corporations like 3M and Johnson & Johnson have brought increased attention to the practice of defendant bankruptcy. Many judges in both the federal and bankruptcy courts have been increasingly opposed to the practice, and this has been reflected in the rejection of petitions from these large corporations. And with judges, politicians, lawyers, and plaintiffs speaking out against this practice, it is possible that legal change is on the way. 

Questions about defendant bankruptcy and what it means for your litigation? Contact Wallace Miller at 312-261-6193 to discuss your case. 

What is litigation?

In legal terms, litigation is resolving disputes via the public court system. Any legal proceeding—whether that is a criminal lawsuit, a civil lawsuit, or a bankruptcy case—is a type of litigation. 

Although often used interchangeably, litigation is not the same as a lawsuit. The term litigation refers to resolving disputes via the legal system, while a lawsuit is the specific legal action brought by a plaintiff against a defendant. For example, in the context of mass torts, each individual plaintiff has their own lawsuit. But each lawsuit is part of a larger litigation about the same alleged defective product or wrongful conduct. 

The U.S. court system is divided into federal and state courts. Federal courts, which include the Supreme Court, the courts of appeals, and the District Courts, oversee cases concerning federal law, disputes between states, constitutionality, bankruptcy, and other country-level concerns. 

While the setup of state courts depends on the state, they generally include a state supreme or high court, a court of appeals, and a variety of trial courts. They oversee suits, including most criminal cases, tort or personal injury cases, family law cases, and cases involving state laws or constitutions. 

In the State of Illinois, most cases begin in the 25 judicial circuits (also known as trial courts) across the state. Appeal cases proceed to the Appellate Court, which is divided into five districts. The Illinois Supreme Court, which consists of seven justices, provides the final judgment on state law. Look up the organization of your state’s court system here. 

Understanding legal terms

Both criminal and civil cases involve a plaintiff (or suing party) and a defendant (or party responding to the complaint). In a civil case, the plaintiff is the person filing the lawsuit, while the defendant is the party against whom the suit is filed. Plaintiffs bring lawsuits in civil court because they believe they have been harmed by the defendant physically, financially, or otherwise. 

Defendants can be business interests, individuals, hospitals, insurance companies, nonprofits, or government organizations. In some cases, many plaintiffs claim that the same defendant or group has harmed them. Cases like these may be filed via a class action lawsuit or consolidated into a mass tort. 

 

Criminal Cases

Criminal cases operate differently from civil cases in several ways. The plaintiff in a criminal case is the State representing the victim (often called “The People” in official documents). At the same time, the defendant is the person or organization being accused of a crime.  

Civil and criminal cases also differ in how they handle the burden of proof, how much evidence is required to prove wrongdoing, and who is responsible for providing it. In a criminal case, the State must prove beyond a reasonable doubt that the defendant committed what they are being accused of. In a civil lawsuit, on the other hand, the plaintiff and the plaintiff’s lawyer must provide a preponderance of evidence—meaning showing that something is more likely true than it is not true—to prove that the defendant is at fault. This usually means it is easier to meet the burden of proof in a civil case. 

Why is the plaintiff important in the law process?

Under our legal system, individuals can seek compensation for damages. These damages may include physical harm, medical expenses, loss of wages, or emotional distress, and lawsuits can also be filed for people who died due to harmful actions.  

Plaintiffs sue for financial compensation, but that’s not all there is to it. Many plaintiffs file claims not only to be compensated for the wrong done against them but also to find answers and prevent the same thing from happening to others. 

At Wallace Miller, we understand that there is more than money at stake in these cases. When someone suffers harm due to fraud or negligence, they often feel ignored, disrespected, or erased. Through the legal process, our attorneys can help plaintiffs pursue justice, achieve some measure of recompense, and prevent the harm from happening again.  

What is a plaintiff’s attorney?

A plaintiff’s attorney, or plaintiff’s lawyer, is simply the individual representing the plaintiff. However, the term is commonly used to refer to an attorney who specializes in representing plaintiffs’ claims against larger interests such as insurance companies, corporations, or hospitals. 

Wallace Miller focuses on this area of the law to make a positive difference in the lives of those who have been wronged. By taking on cases in consumer protection, product liability, employment, environmental and toxic harm, and personal injury, we protect the rights of victims of negligence, fraud, and other wrongdoing. 

The defense attorney or the individual representing the party being sued is on the other side of the lawsuit. The term is also often used for lawyers who specialize in representing defendants. Large companies may have a team of defense attorneys on staff responsible for handling suits brought against them. 

How do plaintiff’s attorneys get paid?

Because they are bringing the suit, plaintiffs and plaintiffs’ attorneys are the active parties in beginning a claim. Depending on the nature of the case, plaintiff lawyers are often paid via a contingency model, meaning they don’t charge their clients anything during the legal process. In these circumstances, the attorneys initially pay out-of-pocket all necessary litigation expenses—including travel expenses for deposition, expert reviews and analyses, testimonies, documentation, records, and court filing fees. Then, if a settlement or verdict is awarded, the attorneys are reimbursed for those expenses and receive a percentage of the award amount as their fee. If a plaintiff doesn’t receive compensation, the attorney doesn’t get paid, and they do not get reimbursed for the expenses they paid out-of-pocket on the case. 

This means that the plaintiff’s attorneys take a financial risk in filing lawsuits. Experienced attorneys are experts at assessing the risk of a given claim and can help the plaintiff understand the situation accurately. Still, there is never a guarantee of a positive case outcome. This system allows average people to access the justice system without paying expensive attorney fees upfront. 

What is the role of a plaintiff lawyer?

In a civil case, the plaintiffs’ lawyers are responsible for representing the plaintiff(s) and fighting for justice on their behalf. Their end goal is to help the plaintiff receive compensation for damages caused by the defendant(s). 

During this process, they research the plaintiffs’ specific situation and the case in general. They build plaintiff files, gather and present convincing evidence, retain expert witnesses, and prepare documents for the court.  

Many cases settle out of court, and in these situations, the lawyer’s goal is to achieve the best compensation possible for their clients. The plaintiff’s lawyer may represent the individual in court if a complaint goes to trial before a judge and jury.  

On a societal level, plaintiffs’ lawyers can also use their skills to hold powerful parties accountable. When the actions of a person, corporation, nonprofit, or government organization cause harm to a large number of people, plaintiffs’ attorneys may represent them in a class action or a mass tort. This not only allows the people harmed to receive some compensation but also discourages these organizations from committing the same harmful actions in the future.  

Wallace Miller: Your plaintiff lawyers

We know that you have many options when considering a legal claim. Our passionate attorneys and professionals have dedicated their careers to pursuing challenging cases and fighting on behalf of consumers, individuals, classes of people, and small businesses against some of the largest companies in the world.  

The attorneys at Wallace Miller have more than 75 years of cumulative experience in the law and have won millions in recovery and settlements. Our firm is nationally recognized, and we are frequently appointed by federal and state courts to serve in leadership positions. Most importantly, we are committed to obtaining justice for each and every one of our clients. 

If you think you may have a claim against a business, corporation, organization, or any other group or would like to discuss your options, reach out to our firm today at (312) 261-6193 or fill out our online questionnaire for a free and confidential assessment in minutes. 

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The settlement process in a mass tort or personal injury case can be complicated. Even after the defendant is ordered to pay damages, several factors can still affect your compensation.

These factors can include medical liens, bankruptcies, and estate issues. At Wallace Miller, we’re committed to making this process as transparent, efficient, and straightforward as possible. In this article, we’ll break down subrogation and medical liens—what they are, how they work, and what they mean for your case.

What is a lien?

A lien is the legal right of a creditor to be repaid for a debt via access to the property or assets of the debtor.

There are many different types of liens, including real estate, judgment, and tax liens. For mass tort and personal injury claims, Wallace Miller works with medical lien agreements related to your lawsuit.

What is a medical lien or hospital lien?

In a personal injury lawsuit where you have been compensated for an injury—for example, if your insurance company paid for some of your medical bills through your insurance plan—the party who initially covered your medical expenses may be legally entitled to recoup their cost from the settlement provided. This is referred to as a medical lien or a claim on your settlement award from an insurance company requesting payment for services rendered by your medical institution.

Your insurance company may have paid for medical treatment, surgery, follow-up hospital care, pain medication, or other medical expenses. If these expenses are linked to your personal injury claim, the insurance company is entitled to a percentage of your compensation.

The more of your treatment that your insurance plan covers, the more likely it is that you will have a lien for a substantial amount. Your insurance provider is more likely to file a lien if they have paid for more of your medical care.

Photograph by Pixabay.

What is the difference between subrogation and a lien?

In a personal injury claim, the term lien refers to a subrogation claim—which means that for most lawsuits dealing with healthcare providers, the two terms can be used interchangeably.

Technically speaking, subrogation is a legal technique in which one party takes on the role of another party. For example, an insurance company can take on the role of the plaintiff or injured party to have a right to the settlement money provided by the defendant for medical services.

Because a lien is the right of a creditor, like an insurance company, to receive money from someone’s property or assets to settle a debt, a subrogation lien or subrogation interest is simply the right of a third party to be reimbursed via a personal injury claim or mass tort settlement for medical expenses incurred by the client.

In establishing and overseeing legal procedures, clarifying the distinctions between subrogations and liens is important. However, for the purposes of personal injury and mass tort cases, it is usually clearer and more efficient to use the term lien to refer to the full subrogation interest negotiation.

Who can file a lien in a personal injury claim?

Medical liens in personal injury and mass tort cases are filed by medical insurance companies and healthcare providers. Medicare and Medicaid most often bring them, although private insurance companies can also submit a claim. Under federal and state regulations, liens filed by Medicare and Medicaid must be resolved first, followed by any liens from private insurance companies.

Insurance companies are legally entitled to assert a lien on a settlement to compensate for medical costs. The exact stipulations of these liens will depend on the contract established by the private insurance company.

Why does lien resolution take so long?

The lien resolution process is complicated and can take months or years. Institutions like Medicare require communication via hard copy, and negotiations often go back and forth several times. Private insurance companies often conduct lien resolution more quickly, but under federal and state regulations, claims from public health insurance programs like Medicare and Medicaid must be resolved first.

As a result of regulatory rollbacks and the backlog in processing caused by the COVID-19 pandemic, the process timeline has increased significantly in the last several years. Before 2020, the average resolution time for the lien process in mass tort cases was four to six months. As a result of recent changes, mass tort lien negotiation typically takes a year or longer to resolve. The process for single-event personal injury cases can proceed more quickly, with lien negotiations typically taking between a few weeks and a few months.

This time-consuming negotiation can be frustrating as a plaintiff—especially since the settlement money seems to have already been awarded and is now being withheld by attorneys and insurance providers. Although this is not the case, it’s upsetting nonetheless. Unfortunately, lien agreement resolution is mandated by law for programs like Medicare and Medicaid and is often written into private insurance policies. Insurance companies also control negotiation deadlines, so your attorneys have little control over how long it takes.

If you are awarded a settlement in a personal injury claim, your lawyer will work with you to update you on the status of your lien resolution. Lien resolution does not impact attorneys’ fees, and so attorney negotiations in this process occur solely for the client’s benefit. The team at Wallace Miller is committed to providing you with compensation as quickly and efficiently as possible and maximizing your total compensation amount. We will do everything we can to ensure your case progresses in the system.

Why must I pay my health insurance company for my personal injury settlement?

It can feel unfair that insurance providers can “double dip” by charging premiums for health insurance and then filing liens on future compensation. Some states have begun to pass legislation to limit how insurance companies can file liens or at least streamline the negotiation so that plaintiffs do not wait years to receive their settlement money. However, because liens are permitted by federal law, all law firms must go through the resolution process to make sure no liens are owed.

The best thing to do if you are frustrated by the lien timeline is to contact your congressperson or elected representative. They can advocate for the setup of the lien system to be revisited to move more quickly and fairly for plaintiffs.

Overview of lien resolution

The resolution begins after the settlement agreement has been finalized. Depending on the litigation, the court or settlement agreement may designate a neutral third party to oversee the process.

This lien resolution company will identify if any liens have been filed and determine their amounts. After an auditing process, the company will negotiate with the insurance companies to reduce the lien amount as much as possible.

After the settlement proceeds are distributed, they will work with your law firm to determine a payment plan for the agreed-upon lien amount.

Are medical liens on a personal injury settlement negotiable?

Medical liens are often negotiable, and your personal injury lawyer at Wallace Miller and the lien resolution company will conduct an in-depth audit of the liens asserted on your case and challenge any they believe are not valid.

These may include liens that apply to medical care outside of the time frame of the case, care with incorrect or irrelevant billing codes, and services unrelated to the claim in question. Your representatives will negotiate to waive as many liens as possible and reduce those that can’t be waived to maximize the compensation you receive.

Some insurance companies will accept waived liens, while others won’t—every personal injury case is unique and must be conducted individually.

What is a lien holdback?

The law requires that part of your total settlement award be “held back” or reserved to pay any liens that have been filed. This money, usually held by the defendant, is unavailable to anyone, including your law firm, until the lien resolution has concluded. During the resolution process, your law firm will conduct research to find out if any liens have been filed.

The lien resolution process can take months or even years. To get some of your settlement money to you as soon as possible, Wallace Miller and other law firms will often pay your settlement in two installments. In these situations, the first check does not include the money held back to pay any potential liens. Then, after the resolution process has concluded, any liens will be subtracted from the holdback, and the remaining amount will be sent to the plaintiff. If it’s proven that there are no liens on the settlement, the full amount held back will be paid to the plaintiff.

How are mass tort settlements distributed?

Many plaintiffs are familiar with class actions, in which it usually only takes a few months to receive a settlement after a plaintiff provides their payout information. This is possible because, in class action cases, the suit is filed by a “class” of people under one or a few representatives.

In mass tort litigation, on the other hand, each plaintiff brings an individual case against the defendant(s). These may then be grouped together into multidistrict litigations to go through litigation more efficiently, but they remain individual claims.

Money is often distributed to clients via a global settlement for litigations like these. Each plaintiff in a mass tort litigation receives a copy of the settlement documents, including the offer amount and a release. These must be signed and returned to accept the compensation offer.

A certain threshold of returned settlement documents must be reached before defendants issue funding. This threshold is typically between 80 to 95% of releases. This threshold applies to cases at Wallace Miller and to all cases represented by law firms participating in multidistrict litigation nationwide.

The defendants will not start reviewing claims until that threshold is reached. In turn, lien negotiations can’t begin until this stage is completed. This means that mass tort settlements often have a significant wait time even before the lien negotiation begins.

We know that the lien process can be confusing and frustrating, so our team is with you every step of the way. Wallace Miller’s trained settlement coordinators are available to answer your questions and walk you through lien resolution as your case is resolved.

Questions about your settlement? Call Wallace Miller at (312) 261-6193 or fill out our online questionnaire to discuss your case today.

Glossary

Assets

Something of value owned by an individual or organization. This includes physical assets, such as property, or intangible assets, like intellectual property.

Creditor

The organization or individual to whom money is owed.

Defendant

The party being sued in criminal or civil court. In a civil case, the defendant is the party against whom the suit is filed

Insurance company

A company that issues insurance contracts to provide financial protection against potential future hazards.

Lien

The legal right of a creditor to be repaid for a debt via access to the property or assets of the debtor. A medical lien is a claim on your settlement award from an insurance agency or healthcare organization requesting payment for services they have provided.

Lien holdback

An amount held back from your settlement to satisfy any potential liens.

Lien resolution company

The court or settlement agreement designated a neutral third party to oversee the lien resolution process. The lien resolution company will identify, audit, and negotiate any liens filed.

Personal injury lawsuit

A legal dispute is filed when one individual (the plaintiff) suffers harm and claims another individual or organization (the defendant) may be legally responsible for paying damages.

Personal injury lawsuits are civil cases. Examples may include an individual suing for broken bones as a result of a collision with a drunk driver; compensation for cancer caused by a chemical exposure at a factory; or harm suffered due to a dangerous product on the market.

Plaintiff

The suing party in a criminal or civil case. In a civil case, the plaintiff is the person filing the lawsuit. Plaintiffs bring lawsuits in civil court because they believe they have been harmed by the defendant physically, financially, or otherwise.

Release

The legally binding agreement to resolve the dispute between the plaintiff and defendant in litigation. The release must be signed for the plaintiff to obtain their settlement.

Settlement

An agreement is reached by the plaintiff and defendant before a trial, often including financial compensation on the defendant’s part. Settlements differ from verdicts, which are the official decisions a judge or jury makes after trial proceedings.

When a defendant negotiates a settlement with multiple plaintiffs, they may opt to undergo a course of action that applies to all individual claims. This is called a global settlement.

Subrogation

A legal technique in which one party takes on the role and obligations of another party. For example, an insurance company can take on the role of a plaintiff in a personal injury case to have a right to the settlement award paid by the defendant for medical expenses.

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