3M Earplug Lawsuit Update

This page provides the latest news and updates on the 3M earplug lawsuits and the settlement in 2024.  We continue to update this page to provide information to victims, but you can find even more quality information from other plaintiffs in the over 10,000 comments below.  We are not handling new 3M earplug lawsuits.

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3M Earplug Lawsuit News

December 2, 2024: The 3M earplugs MDL held steady in November with no new cases added, maintaining the total at 148,528 pending cases.  This number is not longer of any import. We keep following it because we have for so many years.

November 27, 2024:  3M has asked Judge Rodgers to allow the release of settlement details from the $6 billion settlement agreement to a London arbitration tribunal. This tribunal is evaluating whether AIG Europe improperly refused to cover its share of the settlement under a $160 million insurance policy.

October 7, 2024: The Combat Arms Earplugs Settlement Program has reached an agreement affecting 110,149 claimants who used TRICARE benefits to treat their injuries. The agreement simplifies the resolution of liens that TRICARE might have claimed against settlement awards, ensuring a more streamlined and equitable process for affected military personnel and their families.

Previously, TRICARE liens were handled on a case-by-case basis which slows everything down.. Now, each participating TRICARE beneficiary must pay $49 from their settlement award to satisfy all TRICARE claims. An additional $5 administrative fee will be applied, making the total deduction $54 per claimant.

Should the government have just stepped up and waived the liens instead of nickel and diming veterans for these relative small settlements.  Or course.  But is good to get this resolved.  It is the first global resolution of its kind between the Department of Justice,  Defense Health Agency, and a large group of plaintiffs in a mass tort settlement.

October 1, 2024: After shedding over 20,000 cases in August, the 3M earplug MDL only dropped 29 additional cases in September. There are now 224,418 pending cases.

September 28, 2024:  3M has been denied an immediate appeal by the Delaware Superior Court in a dispute with insurers over coverage for personal injury litigation related to their combat earplugs. Judge Sheldon K. Rennie ruled that the companies’ request didn’t meet the standard for an interlocutory appeal, meaning it did not raise a new legal question or offer a more efficient path to resolve the case.

September 18, 2024: Monday is the deadline deadline to withdraw Extraordinary Injury Fund claims for MSA I Claimants.

September 17, 2024: The Plaintiffs’ Leadership in the 3M Combat Arms Earplug litigation is seeking confirmation of a 9% holdback assessment on all plaintiffs’ recoveries and the establishment of protocols for distributing common benefit attorneys’ fees.

The background is, as most of your know from the grumbling in the comments below, that earlier court orders had authorized this 9% holdback from all gross recoveries in the litigation to compensate the attorneys who contributed significant work for the common benefit of all plaintiffs. The plaintiffs’ leadership now argues that, given the global settlement reached between the plaintiffs and 3M, the time is right to finalize how these attorneys’ fees will be allocated and distributed.

The motion requests two main actions:

1. Confirmation of the 9% Holdback: The plaintiffs are asking the Court to confirm that the 9% holdback on all recoveries remains in place and applies to the global settlement.
2. Establishment of a Process for Fee Allocation: The plaintiffs request that Special Master David R. Herndon be tasked with overseeing and managing the allocation of these common benefit fees among the attorneys who worked for the benefit of all claimants in the case.

Yesterday, Judge Rodgers referred the matter to Special Master David R. Herndon, who will prepare a report and recommendation on the motion.  After the report is filed, counsel will have 14 days to raise any objections. The judge will then conduct a full review of the report and any objections raised.

September 4, 2024: Plaintiffs’ lawyers are asking the court to issue an order requiring the Washington Division of Child Support (DCS) to explain why it should not be prohibited from interfering with the administration of a settlement related to the 3M Combat Arms Earplugs litigation.

The motion highlights concerns over DCS’s broad administrative subpoena seeking personal information of all Washington State claimants, which the plaintiffs argue is overly intrusive and lacks a legal basis. The plaintiffs emphasize that DCS’s actions could unnecessarily expose sensitive personal data and impose undue administrative costs, disrupting the settlement process. They contend that such actions violate both the court’s protective orders and the principles of fair legal process by demanding information without a clear connection to enforceable child support liens.

The plaintiffs urge the court to protect the settlement and its claimants from what they view as an unwarranted and burdensome overreach by DCS.

September 3, 2024: The MDL dropped another 20,000 cases bringing the total number of pending cases down to 224,417.

September 2, 2024: Lawsuit loans slow down settlement.  Some people had no choice and I get that.  But, boy, I hate them. Judge Rodgers ordered for primary counsel to secure payoff amounts within 30 days and provide this information to the Settlement Administrator.

August 18, 2024:  Case Management Order No. 94 addresses the collection of application fees for the Extraordinary Injury Fund (EIF) Program, which has been a point of discussion in the comments below. Here’s a summary of the key points:

1. Application Deadlines Passed: The deadlines for applying to the EIF Program have passed for both MSA I and III Participating Claimants.
2. Inquiries about Fee Deductions: The Qualified Settlement Fund (QSF) Co-Administrator, Randall Sansom, has been getting questions from plaintiffs’ attorneys about whether the EIF application fees can be deducted from Claimants’ net awards outside of the EIF Program. This is to ensure that if an EIF application is denied, the fees can still be recouped—either by reimbursing the plaintiffs if they receive an award or paying the QSF if not.
3. Authorization for Deductions: Primary counsel is authorized to deduct the EIF application fees from a Claimant’s net award in other settlement programs (Wave, Expedited, or Deferred Payment Programs). If the EIF application results in an award, the withheld fees must be paid to the Claimant within 30 days of final notice from the Settlement Administrator. Conversely, if the EIF application does not result in an award, the withheld fees must be paid to the QSF within the same timeframe.
4. Obligations for Law Firms: Law firms that have already collected application fees from Claimants are still bound by the same rules. They must manage these fees in accordance with the outcome of the EIF application—either refunding them to the Claimants or forwarding them to the QSF, depending on whether the application is successful.

August 5, 2024: The total paid to victims is now $1,381,237,619. There are updates from plaintiffs in the comments reporting on where they are in the process.

July 25, 2024: The total amount paid out to victims has risen to $1.2 billion in the last month.

July 16, 2024: 3M paid out $500 million yesterday. The total funding so far is $1.6 billion.  About $700 million of that has found its way to victims.

July 9, 2024: As of last week, $815,889,097 of the $6 billion settlement had been paid. So we are about 14% of the way.

July 4, 2024: BrownGreer has reported on the implementation of the “ledgering process.” This process addresses the fees and expenses of primary counsel, distinguishing between those participating in the ledgering process (ledgering firms) and those who opted out (non-ledgering firms). Judge Rodgers was not thrilled with what she saw.

The judge emphasized the necessity for the settlement program to comply with the settlement and all court orders, ensuring that participating claimants receive timely and uniform payments. She particularly scrutinized compliance with the “50% rule”—which many in the comments below claim has not been followed—mandating that plaintiffs receive at least 50% of their gross settlement after deducting the 9% common benefit fee assessment.

The order directs all firms to adhere to the 50% Rule and mandates non-ledgering firms to pay victims within 60 days of receiving settlement funds, reporting any delays to BrownGreer. The court also provided an option for non-ledgering firms to admit defeat and transition to the ledgering process.

July 3, 2024: 3M has been fighting with insurance companies to pay more of the earplug settlement.  It just secured $120 million from several insurers to contribute to a $6 billion global personal injury settlement with service members who used the companies’ combat earplugs and is looking to collect more against five other insurers in a Delaware state court to recover more than $370 million in legal defense costs.

3M and Aearo are also arbitrating some insurance coverage disputes and are in ongoing discussions with other insurers to resolve their contractual obligations without further litigation or arbitration, as stated in the filing on Monday.

I’m just passing this information along for interest. None of this will impact the timing of your settlement.

July 1, 2024: In the 3M Combat Arms Earplug Products Liability Litigation, the number of active cases slightly decreased from 247,640 in June 2024 to 237,907 in July 2024. Some dismissals last month made up a portion of this. I’m not sure if some settlements are included in this number.

I’m not sure why I’m still updating this number. Probably because I have been doing it for five years. It is like a Pavlovian reflex at this point.

June 6, 2024: Judge Rogers put out an order today advising that she is not sanctioning any of the law firms who failed to timely comply with CMO $91.

June 5, 2024: Going back to the post from June 3rd, we are starting to see law firms responding to Judge Rodger’s order.  The first firm responding said that the sheer number of notices and communications related to the litigation made it difficult for the undersigned to monitor all correspondence effectively. So, consequently, they were unaware of receiving a Copy of the Claimant Ledger and the deadline for its submission.  I’m sure Judge Rogers will find this answer annoying, wondering why they agreed to participate in the litigation if they cannot handle the volume of communications so overwhelming they cannot read it all.  But I doubt she has the stomach to impose any meaningful sanction either (and I don’t think she should).

Another firm said the delay was due to a misunderstanding among personnel at their law firm. They promptly rectified the error once discovered and apologized for the oversight, stating it was unintentional and not indicative of deliberate non-compliance. Basically, they said they were sorry, it had not happened before, and it would not happen again. I don’t see any punishment coming out of this either (again, nor should there be).

What will happen to law firms if they do not respond at all? I’d have to go back and look at the deadline to respond, but I remember it was a short deadline. That would be interesting and would test Judge Rodgers’ mercy.

June 4, 2024: On May 1, 2024, Judge Rodgers ordered two law firms to demonstrate whether their clients’ Settlement Program Releases complied with the terms of MSA I and CMO 58 and, if not, to explain why sanctions should not be imposed for submitting fraudulent Releases. The counsels admitted to signing the Releases on behalf of their clients but provided various reasons why the Releases were not fraudulent.

3M responded that 14 of the 16 Releases were rectified by one counsel submitting new “wet signed” signatures accompanied by government-issued photo IDs, rendering the issue of the enforceability of these Releases moot. On Friday, Judge Rodgers agreed and chose not to impose sanctions. However, the judge emphasized that without the corrected “wet signatures,” the releases signed by counsel would not have been accepted, disqualifying the claimants from the Settlement Program and subjecting their cases to dismissal. Notably, out of the 252,943 claimants in the Settlement Program, only these two firms improperly signed releases for their clients, unlike the other 337 firms that complied correctly. This improper action, had it been widespread, could have jeopardized the entire settlement.

June 3, 2024: The number of pending cases in the 3M earplugs MDL did not change at all over the last 30 days. As of May 1^st, there were 247,640 pending cases and as of today there are still 247,640 cases.

May 28, 2024: Judge Rodgers CMO No. 91, mandating 73 non-ledgering Primary Counsel firms to submit detailed information on their attorney’s fees and expenses related to each plaintiff in the settlement to the BrownGreer by May 24, 2024.

This is the judge’s order, so everyone hops to it. Yet six firms failed to meet the deadline. The judge has ordered these firms to provide the required information by 1:00 p.m. CT tomorrow and to show cause within seven days why they should not face sanctions for non-compliance.

The excuses will be interesting.

May 21, 2024: 3M and lawyers for service members have jointly requested the Eleventh Circuit to dismiss the company’s appeals of two trial court orders. This move follows progress toward finalizing a $6 billion settlement, rendering the need for appellate review unnecessary. Prior appeals included disputes over Judge Rodgers’ rulings, such as prohibiting 3M from using certain arguments in bankruptcy court and sanctioning the company for attempting to shift blame to its Aearo unit.

May 18, 2024: Judge Rodgers reports that he Settlement Program has disbursed $701,023,225.35 to 45,105 Participating Claimants after deducting the 9% Common Benefit Fees holdback from their gross awards. Payments still need to be processed for 207,854 Participating Claimants across the Expedited and Deferred Payment Programs, as well as the Extraordinary Injury Fund program.

May 1, 2024: The 3M earplugs MDL continue to contract as the settlement process progresses. Over the last 30 days, another 23,478 cases were dismissed from the 3M MDL. That brings the total number of pending cases down to 247,640, and it marks the biggest monthly decrease since the litigation began.

In other news, a new directive has been issued by Judge Rodgers regarding third-party litigation funding in the ongoing CAE litigation.  Case Management Order No. 61 required lawyers to disclose any third-party funding agreements. The judge is now expanding the requirements under this framework.

According to the latest order, all plaintiffs’ lawyers who have disclosed third-party litigation funding sources must now ensure that these funders contact the BrownGreer PLC, within fourteen days. The purpose of this contact is to determine whether these third-party funders wish to receive payment directly from BrownGreer as part of the distribution of the plaintiff’s award.

Furthermore, the Court has mandated that victims’ lawyers must reconfirm their compliance with the initial disclosure requirements set forth in CMO 61. If any new information has surfaced since the original disclosure, it must be supplemented accordingly. This update is required to be completed within the next fourteen days.

April 28, 2024: Approximately 40,000 3M earmuffs have been recalled in the U.S. and Canada due to potential design flaws that may… expose wearers to loud noises, posing a risk of hearing damage. The recall of the 3M Peltor Series Earmuffs was announced by the Consumer Product Safety Commission (CPSC)) last week, highlighting that defects could undermine the earmuffs’ noise-canceling capabilities.

April 18, 2024: Judge Rodgers issued Case Management Order No. 88 yesterday regarding the submission process for claims related to the settlement.  The order, outlined by Settlement Administrator BrownGreer, introduces a “Bulk Submission” process that allows Primary Counsel to submit data and documents for multiple claimants simultaneously. This process is designed for submissions related to the Extraordinary Injury Fund (EIF) Award Applications and the Deferred Payment Program (DPP) Supplementations.

The order specifies that Primary Counsel must adhere to detailed instructions provided by BrownGreer, which were distributed on April 15, 2024. Deadlines are set for these bulk submissions to ensure efficiency and are earlier than those for individual submissions to avoid logistical issues. Specific deadlines include April 22, 2024, for MSA III Wave Claimants and July 23, 2024, for MSA I Claimants for both EIF applications and DPP supplementations.

April 1, 2024: As settlement payments are starting to be sent out, the 3M class action MDL is finally starting to shrink. Over the last month, the MDL dropped around 5,000 cases, bringing the current total of pending cases down to 271,118.

March 28, 2024: Are you in the mood to be annoyed? Bloomberg reported today that Kevin Rhodes, the Chief Legal Affairs Officer at 3M, earned over $6.7 million in total compensation last year. His compensation for 2023 included nearly $1.7 million in cash, a base salary of $887,400, and over $3.8 million in stock awards, according to 3M’s statement.

Under Rhodes’ leadership, 3M navigated through legal challenge after legal challenge. Arguably, it did a poor job in the earplug and PFAS lawsuits, and the stock has gone nowhere but down. Maybe Rhodes is a fine lawyer—I have no idea. But making your lawyer one of your five highest paid employees when litigation is dragging your firm’s stock lower and lower—well, it might be a reason why 3M shareholders are so disgruntled.

March 26, 2024: At this point, no one should be surprised that 3M has announced that the $6 billion settlement to compensate service members who suffered hearing loss has achieved over 99% participation from those who used its combat earplugs, meeting the requisite threshold to finalize the agreement. The company had the option to withdraw from the settlement if participation fell below 98%.

March 22, 2024: Judge Rogers issued Case Management Order No. 86 yesterday.  This order outlines the notice of award determination and payment process for claimants. Why is this necessary? Some claimants remain unclear about the payment process because… it is unclear.

The order explains the steps necessary for a claim to reach the payment stage, including the First In, First Out (FIFO) ranking of expedited payment program claimants, review of claim materials to determine correct awards, issuance of initial notices of award determination, and the process for reconsideration requests. The order also addresses the calculation of point-based awards for certain claimants and how payments are made, including the distinction between claimants represented by “In-Ledgering” and “Non-Ledgering” primary counsel.

The court identifies several impediments to payouts, such as claimants’ election of expedited or deferred payment program, FIFO ranking, and issues with healthcare liens. Additionally, the order provides guidance on how claimants and primary counsel can obtain information on claim processing and payment status through various resources provided by BrownGreer.

The order emphasizes the court’s intention to ensure that claimants and their counsel are well-informed about the processes affecting their claims and payments, aiming to reduce confusion and ensure that claimants do not need to contact the court for information on the progress of their claims.

This summary is not the path to understanding this.  You should read the order.

March 9, 2024: Some opt-outs have changed their mind.  They initially opted out of a settlement during the registration period but have now expressed their intention to participate. To facilitate the correction of any errors in their opt-out or dismissal decisions, the deadlines outlined in CMO 57 are extended for those listed by the court for 30 days (from the court’s order on March 5).

Also, any status conferences scheduled for the litigation plaintiffs are canceled. These individuals have a 10-day window, following notification by the Settlement Administrator to their Primary Counsel or themselves if representing themselves, to complete and return the registration packet. This is Judge Rogers giving plaintiffs one more chance to change their minds.

March 1, 2024:  The obligation to submit a Suggestion of Death pursuant to Fed. R. Civ. P. 25(a) is temporarily suspended for plaintiffs who choose to enroll and engage in the Settlement Program. Sadly, some of the plaintiffs in this litigation have passed since filing a claim. A suggestion of death is a legal notice filed with the court to inform it of the death of a party involved in a lawsuit. This filing triggers certain procedural actions, such as substituting the deceased party with their estate or representative who becomes the new plaintiff.

Additionally, the deadline for filing substitution motions within 90 days after a Suggestion of Death is also suspended for these claimants. This ruling does not impact litigation plaintiffs who continue to pursue their claims either because they were eligible for the Settlement Program but opted out or because they were ineligible for it.

January 20, 2024: Judge Rogers ordered that the deadlines set forth in the now infamous CMO #57 for the listed plaintiffs will be extended by 30 days from today.  This extension is granted to allow for the correction of any incorrect opt-out decisions previously made.

Furthermore, if you are a plaintiff on the list who had a status conference scheduled within the MDL, that conference will be canceled. The court may reschedule these conferences at a future date if the necessary changes to the opt-out elections are not completed.

The plaintiffs, who are listed on an Exhibit, are given ten days from the notification by the Settlement Administrator to either their primary lawyers or to themselves if they are representing pro se, to complete and return the registration packet.  Plaintiffs on the list who choose to participate in the Expedited Payment Program must also submit any additional required documents to the firm BrownGreer PLC within the same 10-day window. No supplemental documents will be accepted after this deadline.

You want to read both of the court’s orders (4013 and 4014) for all of the administrative issues. But here are the deadlines for the opt-outs as I read it:

• 30-Day Deadlines (by 2/26/2024):
  • Claimants must meet production requirements detailed in sections V.A.a–c and VII.A of CMO 57.
  • Claimants must comply with preservation notice requirements in sections IV & VII.A of CMO 57.
• 60-Day Deadlines (by 3/25/2024):
  • Claimants are to submit expert reports as outlined in sections V.A.d & VII.A of CMO 57.
  • The latest possible date for a status conference as specified in section VII.C of CMO 57.

Additionally, claimants must serve a Statute of Limitations Affidavit on Defense Counsel within 30 days of this Order, providing specific information related to their use of the CAEv2 and potential litigation.

Other deadlines from CMO 57 not associated with the election date remain unaffected by this Order. However, failure to comply with the Order’s requirements may result in dismissal of a case with prejudice.

I’m posting this because it applies to many who do not have lawyers.  But this is not legal advice. I’m putting this up for… entertainment?  Yeah, that is it.

Seriously, it is late at night and I’m tired.  Don’t trust me.  Read the orders yourself – I will try to post them tomorrow (update: I did above) – and talk to your lawyer if this applies to you.

There is a frustration in the comments that I don’t offer as many updates as I used to do. I understand this.  But I really do not want to answer or address specific questions that should be going on between you and your lawyers. (Read: I don’t want to be saying one thing and your lawyer saying another… even when I am right.)

Again, if you want to talk/vent about these issues, there are many people there for you in the comments section below.

January 30, 2024: There was so much drama around the stock sale part of the settlement. Now, 3M has decided to pay $1 billion in cash, instead of using stock, as part of a $6 billion settlement over claims of defective combat earplugs. This amendment to the settlement was made a month after they received court permission to issue unregistered stock.

The change is finalized and outlined in a court order specifying a schedule for six payments. These payments will start after it’s confirmed that at least 98% of claimants have agreed to participate in the settlement, a threshold 3M expects to exceed by March 25, 2024.

Why is 3M choosing cash payments over stock? No idea. My guess is that it was a huge administrative hassle.

January 26, 2024:  A law firm filed a motion to extend the registration deadline yesterday. The reason for the request is the slow mail at the Mississippi prison where the man is incarcerated (from an armed robbery conviction – he was the driver of the getaway vehicle).

The motion is accompanied by an affidavit from the man’s lawyer addressing the prison’s slow mail.  The affidavit is hazy on why they got so close to the deadline in the first place.

It will be interesting to see how Judge Rodgers rules.  Indeed, being incarcerated makes the process of submitting a claim more challenging. Why not just show a little grace and give this man an opportunity to submit his claim?  That is how I would lean if I were the judge and Judge Rodgers has a history of doing just that in this litigation.  But the court has to balance that inclination with opening the Pandora’s box of the precedent of the deadline not being the deadline in what is a very complicated settlement administratively.

January 15, 2024: Our law firm is getting more calls from 3M earplugs now than we were before the settlement.  Contrary to the narrative, the claims seem as strong.

Our firm is not taking new 3M earplug cases, and we are unaware of any firms that are.

In other news, the last MDL case count is 276,568 cases.

January 8, 2024: Effective January 26, 2024, BrownGreer PLC replaces Archer Systems as Settlement Administrator for the Combat Arms Earplug MDL. BrownGreer assumes all prior responsibilities.

So upon successfully completing the transition process, Archer will be released from any further obligations or responsibilities associated with this settlement.

I have no idea of the backstory here. This is not a good look for Archer.

The settlement seems to be moving forward pretty close to schedule.  The best updates are in the comments section below.

January 3, 2024: Judge Rodgers approved the plan to issue $1 billion in unregistered stock as part of its $6 billion settlement with service members over allegedly defective combat earplugs. The approval was based on the valuation methodology and other considerations supporting the fairness of using unregistered stock for payment.

The stock’s value will be determined using a weighted average method, commonly used by regulators and experienced business professionals, to ascertain fair share value for publicly traded companies. To minimize the risk of stock dilution, as the veterans’ fund sells shares, the stock will be issued in tranches. An investment manager and adviser will be employed to reduce investment risks.

January 2, 2024: The big news, I guess, is that 3M contributed $250 million to the Qualified Settlement Fund. This fund is designated to provide compensation to approximately 25,000 to 30,000 veterans who chose to accept smaller, quicker payments.

December 12, 2023:  Today was the fairness hearing. One veteran, who will join the settlement, expressed apprehension that 3M might file for bankruptcy, potentially affecting a key element of the settlement that involves transferring $1 billion in stock. A former SEC commissioner expressed confidence in the fairness of the stock transfer, noting it was negotiated at arm’s length and that 3M’s status as a widely held public company provided a reliable market value for the stock.

The shares in question would be issued to a settlement fund and could be sold immediately, with provisions to mitigate the risk of stock dilution.

I think it is unlikely Rodgers will disturb this deal.

December 6, 2023:  Judge Rodgers has decided not to revisit the possibility of sanctioning two Dechert LLP attorneys. Judge Rodgers had imposed sanctions of $12,000 against two attorneys for allegedly violating her order on presenting evidence during closing arguments in one of the bellwether trials.

These lawyers bill $12,000 for waking up in the morning.  But they decided to make a federal case out of it, challenging the sanctions in the 11th Circuit. The appeal court overturned the sanction on technical issues – the necessary notice was not provided to the attorneys and the judge did not – even though it would seem obvious in context – formally find there was subjective bad faith by the attorneys.  So the 11th Circuit kicked it back to Judge Rodgers.

But Judge Rodgers decided it was time to leave well enough alone and is dropping the whole thing.

November 28, 2023: The new 2024 VA disability rates will be effective December 1, 2023, and disabled veterans will see a new 3.2% COLA (cost of living) increase in January 2024.

This is good information relevant to many of you. It comes from one of the commenters below.

November 27, 2023: The judge had previously issued orders to create a Combat Arms Earplugs Qualified Settlement Fund (QSF) and a Combat Arms Earplugs Common Benefit Qualified Settlement Fund (CB QSF), appointing ARCHER Systems, LLC and Randall L. Sansom as co-administrators of these funds.

A new order last week has amended these previous Orders, replacing ARCHER with BrownGreer PLC as a co-administrator of the QSFs. CPA Randall L. Sansom will continue in his current role. BrownGreer is now authorized to undertake all necessary activities for managing the QSF and CB QSF, as outlined in the relevant orders. This amendment relieves ARCHER of any future duties or responsibilities related to the QSF and CB QSF.

We do know know the backstory but this is unlikely to matter much.  BrownGreer has already been involved in the litigation.

November 24, 2023:  This is the link to the comments section below.  I think the comments have been helpful to many to get information, offer your take, and vent.

As I have said, we support the 3M earplug settlement.  But we will start deleting pro-settlement comments that do not appear substantive.  We are getting many posts in support of the settlement that… just do not seem real.  Why would someone bother to do this?  Beats me.  But it is annoying because I want people to be able to access real information and opinions.  So if you see some deleted posts from here on, that may be what it is.

November 19, 2023:  The court issued a Deadline Registration Order on Thursday that addresses some critical deadlines related to the Combat Arms Master Settlement Agreement (MSA).

Here are the new deadlines:

• For MSA I (the first part of the agreement), the initial registration date is now January 25, 2024, and the final date is March 25, 2024.
• For MSA III (another part of the agreement), the initial date is December 20, 2023, and the final date is February 20, 2024.

November 18, 2023: 42,647 new cases were added to the 3M earplugs MDL over the last 30 days.

We have been writing these “this many cases have been brought” updates for years.  We should have provided more context when this was originally posted on Friday. The settlement closed out long ago.  This is not a bunch of people jumping into the settlement after the fact. This is just the updated accounting.

November 17, 2023: The Fairness Hearing is scheduled for 10:00 a.m. EST on December 11, 2023.

November 7, 2023:  Judge Rodgers has further streamlined the 3M earplug MDL by dismissing numerous duplicate claims after the October 11 deadline to resolve these issues passed. This action follows her directive that claimants with unresolved duplications would default to representation by the firm that filed the earliest suit, and any additional filings would be dismissed with prejudice. A total of 3,548 unresolved claims were identified, leading to a significant reduction in case numbers, with only the initial filings for each claimant being maintained.

October 30, 2023: Judge Rogers issued an order for two groups of plaintiffs.  One group is being given one last chance to provide accurate email addresses and cell phone numbers by November 3, 2023. If they don’t, their cases will be dismissed due to repeated non-compliance with the Court’s orders

Claimants on a second list had their cases previously dismissed for various reasons. The only action left is to close their PIDs in MDL-Centrality, which the Settlement Data Administrator is directed to do by this order.

These are short lists. Eight plaintiffs are on the first list and 39 are on the second list.

October 17, 2023: Scammers have set their sights on claimants participating in the $6 billion settlement related to allegations of hearing damage caused by 3M combat earplugs.  Judge Rodgers issued a stark warning after discovering that fraudulent actors were impersonating employees of Archer Systems LLC, the company designated to administer the settlement. These imposters have been initiating unsolicited cold calls to claimants, attempting to extract sensitive personal information, including social security numbers and dates of birth. Judge Rodgers unequivocally declared these calls as scams and promptly alerted the Federal Bureau of Investigation to the attempted fraud and identity theft. She emphasized the need for claimants to exercise extreme vigilance in safeguarding their sensitive data from potential scammers.

The order issued by Judge Rodgers advises individuals contacted by scammers to promptly reach out to the plaintiffs’ counsel, who will work to counteract these fraudulent activities and report them to the appropriate authorities.

October 11, 2023: A federal judge warned lawyers representing military veterans and service members about potential penalties for continuing to make repetitive claims and filings. Such actions, the judge emphasized, waste valuable court resources.  If this persists, penalties for “willful and repeated violation” of case management directives will be imposed.  “This stops now,” U.S. Magistrate Judge Hope Cannon demands in her order.

October 10, 2023: The big question is what percentage of people will take the expedited settlement.  Because that will make a big difference in how the money is allocated.  The estimates I have heard range between 70% and 90%.  Reading our comments section below, you would not think this is a realistic prediction. But our comments section is not reflective of the population of plaintiffs.  Our commenters are more interested in the litigation because they generally have better claims.  So we will see how it flushes out.

October 5, 2023: Let’s return to the “When Will I Get Paid under the Expedited Program?” conversation…

The short answer is we do not know.  According to Archer, although the precise payment dates for individual claimants remain uncertain, it’s possible that some expedited payments could be issued as early as December 2023. According to Archer’s report, approximately half of the claimants enrolled in the expedited settlement program are expected to receive their compensation by the conclusion of 2024. Archer estimates that all claimants participating in the expedited payment program will have received their payouts by May 30, 2025.

You would not want to bet your life on any of this. But this is the best estimate.  You have to think/hope that Archer has done this enough to know that you want to underpromise and overdeliver on these estimations.

October 3, 2023: I always told my sisters -jokingly, I think – that if they killed one of our parents, I would not talk to them for at least 20 years.  But, in the meantime, I would help them hide the body. Why? Because what’s done is done.

We recommend the settlement to our clients.  Why?  First, we must recommend the settlement to 100% of all eligible claimants (according to my read of MSA section 8.1.2).

You might want to stop reading now because if you think what comes next has no credibility.  I get that. But I’m not required to put myself out there and give an opinion online.

I do not think opting out is a viable option if your goal is to get as much money as you can from this. Many veterans are looking for a lawyer to come in and take opt-out cases on a contingency and I have yet to hear of a single lawyer willing to do that. No one in the 3,000 comments below has named a law firm that will, and it has been a great source of discussion (and some yeoman efforts by some of the commentators that are very admirable).

It is not unreasonable to be angry about the settlement.  I get it, I really do. Certainly, the numbers cannot be said to be full justice for victims. I’ve said I would rather not have tinnitus than have $1 million.  Whether this settlement should have been agreed to – which you have to understand is a different question – is a debate that has and will continue to rage on in the comments below. There are reasonable people on both sides of this.

But the bigger question is what should you do now for yourself and your family. Because what’s done is done.  We are where we are. I think the settlement is the only path here.

(This is my general opinion and is not, of course, legal advice to you.  Talk to your lawyer about your specific case.)

October 2, 2023: Many of the questions plaintiffs are asking is how the point system works and when payments will be made.

The point system has not been publicized.  But here is what we have gotten for the expedited payment – with likely payouts next year:

• Tinnitus Only:  $5,000. This is for tinnitus where there are no contemporaneous records to corroborate or confirm without compensable hearing loss.
• Recorded Tinnitus:  $10,000.  The tinnitus payment is doubled if there is a diagnosis of tinnitus or the plaintiff sought treatment for symptoms within two years of the last use of earplugs.
• Slight Hearing Loss:  $10,000. This is defined as 15 db Hearing Loss in a least one testing frequency.
• Mild Hearing Loss: $16,000.  Defined as a least 20 db but no more than 35 db Hearing Loss in at least one testing frequency.
• Moderate or Greater Hearing Loss:  $24,000 This is defined as 40db or more hearing loss at least one testing frequency.

If you meet the criteria for multiple categories and opt for the expedited payment program, the values of each category are not combined. Instead, you will receive the higher of the two award amounts. For instance, if you have both documented tinnitus and moderate hearing loss, you will be eligible for $24,000, not $34,000.

For the full evaluation program, the payout schedule will be put out in the future:

October 1, 2025

October 1, 2026

October 1, 2027

October 1, 2028

October 1, 2029

As for which settlement option is best for you, I have opinions about what I think the vast majority of people should do.  But I think that is a discussion you should have with your lawyer.  I believe the lion’s share of people will take the expedited payment option not because it is the best thing for them but because they want money now as opposed to money later.

September 28, 2023: Many people suggest in the comments that they have lawyers willing to tackle the draconian requirements of CMO #57. No one has yet to name a lawyer who has said I’m ready to take opt-out cases for plaintiffs who are not now my clients.

Let’s all be transparent. If you have talked to a lawyer who wants to handle 3M earplug opt-out cases, do everyone a favor and name them in the comments.  If these lawyers are looking for cases, they will be grateful for the free advertising. Otherwise, I fear we are misleading people into thinking there is this pack of lawyers out there ready to jump in if they can only just find them.

I don’t think there is a viable path to a greater recovery by opting out of the settlement.

September 23, 2023:  Judge Rodgers issued CMO #68 out of frustration that the Identification Order Declarations are missing important information, like social security numbers and birth dates. So this violates CMO #60, and the Judge is mad.

The court’s order requires people submitting incomplete or wrong documents and their lawyers to fix the information. They need to do this by Monday, September 25, 2023. If they don’t fix it by then, their claims will be thrown out, apparently without further warning.

September 22, 2023: Judge Rodgers issued CMO #69, which addresses changes in the requirements and deadlines for submitting certain documents related to a legal case. Initially, there were specific rules ( Pretrial Order Nos. 18 and 81 and Case Management Order No. 40) that outlined when and how people involved in the case needed to provide information, including military records and personal details.

But we have the settlement now, so this new order replaces the old rules and deadlines. The critical change is that accurate and complete information must be provided promptly to avoid issues.

Here are the new deadlines:

1. Individuals who had claims on the court’s docket by August 29, 2023, and were subject to a census form deadline at that time must submit accurate and complete census forms through MDL Centrality by Thursday, October 5, 2023.   The court lists the names of all of the 1,736 people this applies, and I’m sure Archer will put this online at some point, but I’m not putting people’s names online.
2. All other eligible claimants must submit accurate and complete census and DD214 forms through MDL Centrality within 14 days after their claim was identified on an Identification Order Declaration but no later than September 26, 2023.

Additionally, a deficiency process is in place for incomplete or incorrect submissions. If your census forms or Plaintiff Fact Sheets have deficiencies, you’ll receive notice and must correct the deficiencies within 14 days.

The tone is harsh. The court points out that the Settlement Data Administrator has the authority to handle these documents and deficiencies. If you fail to meet the requirements and deadlines, your case may be dismissed without a show cause order or any further notice.

September 20, 2023: One source of frustration among veterans is that 3M will not admit responsibility in this settlement.

An admission of guilt was never on the table. Admitting responsibility would open the door for everyone to opt-out and move forward on that admission. Maybe it would be admissible at trial, maybe it would not, but it would be, at a minimum, a sword plaintiffs would hammer 3M with over and over. Admitting guilt would also be harmful to 3 M’s reputation. They have long vigorously denied responsibility – have you ever read what they told shareholders throughout this litigation? – so the optics would be terrible.

And it is not just 3M. You do not see defendants fall on their swords in mass tort settlements.

September 18, 2023: As of this week, the total number of plaintiffs with active cases in the 3M earplug MDL is 242,604. That is 12,000 less than the number of pending cases just three months ago. Why? This actually has nothing to do with the recent settlement deal that won’t start to impact the pending case count for a long time. The recent reduction is attributable to dismissals as part of Judge Rogers’ docket control efforts.

September 13, 2023: I’m still confused by the details and logistics of how this settlement will work. Honestly, I thought it was me. But I keep talking to people “in the know” who have the same questions I have.

We must wait and see how things develop for many of these questions.

September 10, 2023: With much thought, I opened this page for comments a month ago. The best thing we have done here. We are getting so much insight into what people think and real facts about what is happening with your case and what your lawyers are telling you. This helps everyone, and I should have done it five years ago.

September 9, 2023:  The hearing yesterday was noneventful, a point underscored in the comments by the many who attended. There is still not a points system in place. But we also need to know how many people will jump into the first settlement bucket before we know how much money is being spread around.

The one good thing about this deal is there is no clawback provision. In a mass tort settlement, a clawback provision is a contractual mechanism in the settlement agreement that allows the settlement administrator to recover unused funds. In this case, that money would have been returned to 3M.

But in this settlement, the whole $6.05 billion will be distributed, and the money earmarked for people who do not participate or those who take the quicker settlement, all the rest of the money goes to the remaining plaintiffs. That is not how every mass tort settlement works. But until we know the answer to that question, we do not know how much money is in the pool to be distributed using that points system.

Here is a link to the video of the hearing. A very rare video of federal court proceedings.

September 5, 2023: I used to think I was good at making predictions in mass tort cases. I read so many things wrong in this litigation.

I did not think the non-military Minnesota lawsuit would fall into this settlement. I was wrong on that, too.

Judge Rodgers’s new order loops these cases into the settlement per the settlement agreement. Her order modifies Case Management Order No. 62 (ECF No. 3827) by broadening the scope of Minnesota cases eligible for inclusion in the Administrative Docket within the MDL until October 2, 2023. So any Minnesota case filed and/or served by August 29, 2023, can now be added to the MDL’s Administrative Docket.

September 4, 2023:  We have been throwing around this $8,333.33 quick settlement idea, which we derived from doing the math in the settlement agreement. It may be that those quick and easy settlements will come in tiers based on the level of injury, according to what some are speculating. Our source is our comments section below (it may not work on cell phones). When it gets flushed out for certain, we will let you know.

We will remain committed to telling you what we know, when we know it until this thing is finally done. Have a happy Labor Day!

September 1, 2023:  There will be a Case Management Conference on Friday, September 8, 2023, at 9:00 a.m. (CDT) before Judge Rodgers to discuss the 3M earplug settlement program.

August 31, 2023:  Bloomberg had an article yesterday about the possibility of the opt-outs tanking the 3M earplug settlement. This does not appear to be a big concern for most people I have spoken to about the settlement. But you might develop a different take reading the comments to this post.

I think the best claims will see more money than people expect in the comments. First, many quickie settlements will change the average settlement for those who opt-in but submit to the settlement points system.

You are also likely to see many veterans not following through with the necessary paperwork to claim their settlement. The crazy thing – to me, anyway – is that so much of the process – besides the discussion of the decision to opt in – will not be done by the lawyers but by the administrators.

Why does this matter? Many of the plaintiffs in this litigation are not responsive to their lawyers. Will they respond better to an administrator, which may sound like a sales call? I think you will see many victims not participating, which will raise settlement amounts for everyone else. If you add a lot of zeroes to the average, it raises the average for everyone else.

Ultimately, this is America, and we get to make choices, thanks in no small part to the plaintiffs in the litigation. Everyone will have to make individual choices about what they want to do. The key will be working with your lawyer and understanding all the pros and cons. My guess is that when the smoke clears, many veterans – more than 98% and with a lot of bitterness – will determine that participating in the settlement is in their best interests.

In the coming weeks, we should know which way the wind is blowing.

August 30, 2023: Interestingly, veterans groups are on board. The Enlisted Association of the National Guard of the United States represents 5.5 million veterans, and the Military Order of the Purple Heart, which advocates for more than 45,000 wounded vets, are vocally supporting the deal.

Note: This is what Bloomberg is reporting. In the comments below, someone disagreed:

Just spoke to my rep at the Military Order of the Purple Heart (703)-642-5360 , they’re saying that the statement “Military Order of the Purple Heart, which advocates for more than 45,000 wounded vets, are vocally supporting the deal.” is completely incorrect and inaccurate.

August 29, 2023: Earlier this morning, 3M issued a formal press release and submitted a disclosure statement to the Securities and Exchange Commission confirming the general terms of the recent earplugs settlement agreement. 3M will pay a total of $6 billion into a settlement fund, and over the next several years, that fund will be used to pay claims. The SEC filing confirmed that 3 M’s board of directors has formally approved the settlement.

Let’s look at some of the deal terms. I’m doing this quickly so that I may get some of this wrong. Correct me in the comments below if you think I have it wrong. For legal advice, you really need to speak to your own lawyer.

• 3M can walk away at any time if there is not a 98% – 98%! – participation rate. 3M is unlikely to stick to that number. But goodness, it is aggressive.
• For $8,333.33 (before fees and costs), you can probably settle your case as early as this year. 3M wants to pay this money out early because it really wants to bait plaintiffs to take the quick money to reduce the claim count. This is not the average settlement. People in the comments are getting this wrong. It is just for those who want to get out before submitting their records and such.
• There will be a Settlement Administrator whose job is to make sure that any Registered Claimant’s medical debts (“qualified healthcare liens”) are sorted out before they get any money from the settlement. So before anyone with a registered claim gets their settlement money, this Administrator checks that all the medical debts linked to their claim are either already paid or will be paid soon.
• Once you fill out and submit a Registration Form to be part of the settlement, you can’t change your mind or take it back. This means no person who has registered can, for any reason, try to cancel their form, ask to get their Release or official dismissal document back, or leave the settlement unless the Defendants agree. But…if the Defendants decide to back out (or “Walkaway”), the Settlement Administrator will toss all the releases. There are some exceptions: the documents from the Verdicts Settlement and the Waves Settlement (unless the Defendants back out from that too). 3M also can’t back out of the $8,333,33 settlements (nor would they want to do so).
• John Perry is the special master for the settlement.
• The plaintiffs who do not opt into the quick settlement of $8,333.33 but want to settle can go into a not yet disclosed points system process. This is not a part of the settlement but something plaintiffs will set up with the special master.

August 28, 2023: Bloomberg has another article on the 3M earplug settlement this morning that is mostly a rehash of yesterday’s article with more background facts on the litigation.

3M shares are up nearly 5% at last check at 2:00 p.m. today on the news of the “tentative settlement.”

Reuters reports that a “person familiar with the proposal” says 3 M’s board of directors is poised to vote on the settlement proposal.

There is a new Bloomberg article – Bloomberg is the only one really on this – that has this money quote:

“There’s still much unknown about the 3M settlement. Even once a deal is finalized, it will still need to clear a number of legal hurdles, including sufficient buy-in from the plaintiffs. It’s not immediately clear why a majority of plaintiffs would both accept $5.5 billion and allow 3M to pay out the funds under a more generous timeline when Wall Street has broadly coalesced around a $10 billion number — or worse. 3 M’s endeavors in bankruptcy court can’t have endeared it to the other side, and one might ask, if there was a path toward a settlement at roughly half the price analysts were estimating, why did the company even bother with such a contentious maneuver in the first place?”

But, again, we need to see the overall deal before jumping to conclusions.

Our law firm is no longer taking new 3M earplug claims. Will this stop us from updating you on the latest news like we always have? Of course not.

As for the comments below, we are a little confused about whether you can access the comments on a mobile device. But you can certainly see them on a desktop. We cannot answer them all, but we are reading your comments with great interest.

August 27, 2023:  Bloomberg News reports today that 3M Co. is reportedly in the final stages of settling the 3M earplug lawsuits. Forbes also has an article report on Bloomberg’s article.

How Much?

That a settlement is close is not news. We have been telling you this for weeks. What is news is the number:  around $5.5 billion.

Possible Settlement Structure

We think there will be a single-amount settlement offer for plaintiffs who do not have solid claims and just want to accept a low settlement amount and other claims that will be settled with a deep dive into the medical records and the specific injuries. But this is just speculation.

Little More Speculation

One more bit of speculation… everyone seems to be wondering what 3M will do with their case. It may not be on 3M. 3M may offload the responsibility to plaintiffs’ lawyers, which would be a points system (with an appeals process). Again, we have no idea how a 3M earplug settlement would be structured.

Tell Us What You Think

We will tell you more as we learn more. We will keep updating you here long after this settlement is official.

People are already commenting on the settlement news in the comments, so please jump in if you have something you want to say.

August 24, 2023:  We have not mentioned the possible 3M earplug settlement in a while, so here are our latest thoughts.

The conventional wisdom is that these claims will settle sooner rather than later. We have had high hopes of a resolution before that quickly fizzled. But they have never been this high. One canary in the coal mine to watch for – the number of law firms that are no longer taking new cases. This may start happening sooner rather than later.

A settlement could take a lot of different forms, and there is very little information swirling about how a settlement might be structured… or what the average settlement might be. We have tossed around a $50,000 number as a potential mark. That is probably overly optimistic. But weaker cases pull the average down. The bigger question is what will be the average settlement in cases with cases with severe and well-documented injuries.

August 22, 2023: In three orders today, Judge Rodgers dismissed 3M claims where the plaintiffs did not submit the paperwork required to maintain a claim.

August 15, 2023: More dismissals are set for plaintiffs who failed to submit DD214s. Meanwhile, settlement rumors continue to swirl. Are these rumors credible? Who knows?

August 2, 2023: Judge Rogers has given a group of over 350 delinquent plaintiffs in the 3M earplugs MDL yet another chance to keep their cases alive. The group of plaintiffs includes 141 who were facing dismissal based on their failure to submit the required military service documentation and another 240 who failed to submit their plaintiff census forms. Despite the fact that these plaintiffs have been given all sorts of time and extensions, Judge Rogers balked at dismissing their cases. Instead, she issued an Order stating that the plaintiffs on the list will have their cases dismissed if they fail to submit the required documents by August 3, 2023.

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