case study

Coverage For Pharmaceutical Company’s Product Liability And Mass Tort Litigation

We served as insurance counsel to a Fortune 500 medical products company with significant product liability and mass tort exposure related to artificial heart valves, hip and knee replacements, and pharmaceutical products.  We resolved all outstanding insurance coverage issues related to these claims under a multi-billion-dollar insurance portfolio.

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Multi-Million Insurance Recovery for Receiver Against Chinese Company

We recovered millions of dollars on behalf of the receiver for a defunct China-based media company through international mediation and arbitration of insurance disputes and claims against the company’s former professionals.

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$80 Million Fund for Sexual Abuse Claims Against Catholic Diocese

As insurance counsel to a class of claimants suing a Catholic diocese for negligent supervision of employees who had engaged in sexual abuse, we negotiated a settlement with the Diocese’s insurers to create a settlement fund and appropriate distribution procedures for class members.

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$24 Million to Settle Ponzi Scheme Case Without Litigation

We utilized a combination of insurance collections and payments from an indemnifying former corporate parent to fund the settlement of claims asserted by a receiver and a putative class of investors arising from one of the largest Ponzi schemes in United States history.

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Wellington Agreement

One of our lawyers was the primary negotiator and drafter of an insurance treaty (the “Wellington Agreement”) among 35 policyholders and 15 groups of insurers, resolving disputes relating to over $15 billion in coverage for asbestos-related claims.  This treaty shaped the response of insurers to one of the largest mass-tort crises in American history, created the first mass-tort multi-defendant claims-resolution facility and incorporated a cutting-edge use of ADR over the succeeding decades.

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Oil-Spill Liability Fund Settlement

Our lawyers negotiated a substantial settlement of a claim against a statutory oil-spill compensation fund in connection with one of the world’s largest oil spills in U.S. waters.

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Representation of Public University in ADA Investigation

We represented a public university in connection with an investigation commenced by the USDOJ into the accessibility of the university’s campus to persons with disabilities.  This work involved negotiations with DOJ over alleged accessibility violations as well as development of a plan for remedying alleged violations.

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Pioneered Asbestos Prepackaged Bankruptcy Cases

We designed, negotiated, and implemented a prepackaged plan of reorganization under which the client contributed its insurance rights and proceeds to a trust to pay asbestos claims and the client’s asbestos-related bodily injury liabilities were discharged.  We settled more than a quarter of a billion dollars of insurance coverage to fund the trust, and subsequently settled the remaining coverage that had been transferred to the trust.  Our client emerged from the reorganization case free of asbestos liabilities and today is a successful and growing company.

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“All Sums” Decision In Illinois

Our attorneys were retained to represent a policyholder in an Illinois asbestos bodily injury coverage case that had been pending more than five years.  We persuaded the trial court to overturn its previous orders from before our representation and hold that an insurer was obligated to pay “all sums” for claims triggering its policy – that is, the insurer was obligated to pay our client’s liability in full, subject only to any applicable policy limits.  The decision is particularly notable because it reverses a prior trend in Illinois that limited each excess insurer’s obligation to a prorated share of the claim.

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Prepackaged Bankruptcy with Over $500 Million in Insurance Assets

In connection with our representation of a small installation contractor, we recommended, developed, and oversaw a prepackaged bankruptcy strategy, as well as pursuit of non-products coverage after most products coverage was exhausted.  Our strategy resulted in insurance recovery in excess of $500 million and approval of a favorable Chapter 11 plan of reorganization.

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Corporate Restructuring and Insurance Funding to Guarantee Company Survival

We represented a small, closely-held insulation and roofing contracting company that was facing bankruptcy as a result of its asbestos-related liabilities.  In helping to ensure the company's continued survival, we undertook a multi-faceted approach whereby we (a) obtained millions of dollars in insurance proceeds to pay asbestos-related claims from solvent and insolvent insurers, and (b) provided strategic advice to the company regarding a restructuring that preserved its access to insurance coverage.

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Hundreds of Millions in Coverage to Secure Exit Financing

We represented a debtor in a mass-tort-related bankruptcy case that faced significant time pressure to reach confirmation to comply with its DIP (debtor-in-possession) lender’s requirement to maintain favorable financing.  Within three weeks, our lawyers negotiated a resolution of every insurer objection related to three separate liability streams on terms satisfactory to the debtor and consented to by the committee representing bodily injury claimants and a representative for future claimants, thus enabling the DIP financing to proceed.

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Settlement of Post-Bankruptcy Insurance Claims

We represented an asbestos trust in litigation in state court against two insurers that had refused to settle during the bankruptcy proceedings that led to the formation of the trust.  Following years of vigorous litigation, both insurers settled on terms favorable to our clients.

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Prepackaged Bankruptcy with No Insurer Objections

We represented an ad hoc committee of asbestos plaintiffs to negotiate hundreds of millions of dollars of insurance settlements and a pre-negotiated plan of reorganization that incorporated those settlements.  This allowed the debtor to confirm a bankruptcy plan without insurer objections and our clients to access a trust with hundreds of millions of dollars available to pay their claims.

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Successful Fraudulent Transfer Claim on Behalf of Floor Tile Manufacturer

Our lawyers successfully brought a fraudulent transfer lawsuit on behalf of a bankrupt asbestos defendant against a Canadian company that we alleged stripped all the assets out of our client to avoid paying asbestos-related bodily injury claims.

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Represented Tort Creditors' Committee in Major Automotive Bankruptcy

We represented the tort creditors' committee in an automotive manufacturing bankruptcy, advising and negotiating with the U.S.-based debtors and their international parent to obtain the full value of international insurance.

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Resolution and Funding of Dental Malpractice and Fraud Claims

On behalf of a bankruptcy committee representing thousands of children injured by dental malpractice, we developed a unique trust structure that permitted claims to be valued in the tort system, but also maintained the trust’s ability to maximize insurer funding and streamline the administration of claims after values had been established.

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U.S. And U.K. Insolvency Proceedings

We represented a U.S. policyholder that had a U.K. subsidiary with significant tort liability in both the U.S. and the U.K.  This entity, which had purchased a policy with an aggregate limit of nearly a billion dollars covering both itself and its U.S. subsidiaries, sought protection of both U.S. and U.K. insolvency laws and cases proceeded in both countries.  During the course of the parallel proceedings, our lawyers were crucial in resolving numerous novel bankruptcy and insurance issues necessary to preserve and recover proceeds from this policy.

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Resolution of International Medical Implant Claims in Bankruptcy Case

We led settlement negotiations that resolved class action cases asserting thousands of medical implant claims against a U.S. company in bankruptcy.  These settlements, which were incorporated into the overall reorganization plan, resolved the vast majority of the international claims in the U.S. reorganization case.

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Successful Mass Tort Bankruptcy and Coverage Case

We represented an asbestos trust in litigation in state court against two insurers that had refused to settle during the bankruptcy proceedings that led to the formation of the trust.  Issues included whether the trust's predecessor could assign insurance rights to the trust and the reasonableness of the settlement that resulted in the creation of the trust.  Following years of vigorous litigation, both insurers settled on terms favorable to our clients.

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Groundbreaking “Pass Through” Settlement

After securing more than $100 million for a mass-tort-claimants’ committee, we negotiated a first-of-its-kind settlement that permitted the resulting trust to retain its disputed claim against a recalcitrant insurer, without delaying confirmation.

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Swift Resolution of Insurer Objections to Secure Exit Financing

Our debtor client faced three separate liability streams, over one dozen insurer objections, and significant time pressure to reach confirmation in order to maintain favorable financing.  Our lawyers negotiated resolution with every insurer-objector within three weeks, garnered support of all tort claimant representatives and facilitated our client emerging successfully from bankruptcy.

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Recovery of More Than $2 Billion in Bulk Vitamins Price-Fixing Litigation

One of our Firm’s partners represented a client group of more than 125 large purchasers of bulk vitamins in a variety of industries in litigation against a global price-fixing cartel of vitamin manufacturers.  This representation resulted in recoveries of over $2 billion for the client group.

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Defense of Public University in Civil Rights Actions

We successfully defended a public university in numerous employee lawsuits alleging that the university had violated the employees’ civil rights in employment-related decisions.  This work included representation before trial and appellate courts at the state and federal levels.

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Representation of Major Purchasers of Polyurethane Chemicals in Price-Fixing Litigation

All but one defendant settled pre-trial, and the case was tried against the remaining defendant which settled five weeks into trial in New Jersey federal court.  Total client recoveries were approximately $500 million.

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Multi-Million Dollar Recovery Following Two Appeals in Attorneys’ Fee Dispute

We won two appeals to the Fourth Circuit in a multi-million-dollar case in which a former client contended that their law firm, which they had discharged following a successful jury trial that resulted in an eight-figure verdict for the client, was entitled to only a fraction of its hourly fees in a quantum meruit (that is, the amount that is merited) fee claim.

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Major Recovery from Manufacturers of Corrugated Materials

Our lawyers represented some of the leading household-brand consumer products companies and other large purchasers of corrugated material against linerboard manufacturers accused of participating in a conspiracy to restrict supply and increase prices of linerboard and corrugated products. While the client group was only 25% of the entire class of plaintiffs, total client recoveries of approximately $200 million were almost the same as total class recoveries.

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Successful Anti-trust Action Against Agribusiness Giant

One of our Firm’s partners successfully represented major food producers who purchased citric acid in a price-fixing antitrust action against a global cartel of chemical manufacturers.

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Representation of Employer in Fair Labor Standard Act Litigation

In a matter of first impression before the United State District Court for Delaware, we successfully eliminated a plaintiff’s entitlement to damages in a wage-and-hour lawsuit, establishing that the plaintiff was judicially estopped because he had made inconsistent representations in a contemporaneous bankruptcy proceeding.  While the ruling permitted the bankruptcy trustee to recover in the plaintiff’s stead, it capped the maximum damages the trustee could recover at less than one percent of the plaintiff’s demand.

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Excess-of-Loss Policy

As counsel to a major asbestos defendant that was undervalued and unattractive as a potential acquisition because of the uncertainty surrounding its future asbestos liability, we drafted and helped negotiate an excess-of-loss policy providing an additional $800 million of coverage over a predetermined future liability.  Because this policy reassured the market that the company’s asbestos liabilities were contained, the company became a more attractive investment candidate and it subsequently was acquired.

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Insurance Due Diligence for M&A Activity

We have regularly represented private equity and public companies in connection with their mergers and acquisition activity.  As part of the acquisition team, we develop strategy related to all aspects of potential liabilities, insurance, and risk management, with particular focus on product liability and directors and officers exposures.  Our strategic approach involves a broad review of corporate structure and alternative risk transfer mechanisms.

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Policy Negotiation and Placement

Our attorneys have provided advice to companies, including one of the world’s leading real estate owners, developers, fund managers, and operators, in negotiating the terms of errors & omissions and directors & officers insurance coverage.  Our work in this area has included assessing risk profiles, drafting policy language, and negotiating coverage terms with insurance brokers and insurers.

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Hundreds of Millions Recovered for Securities Class Actions Claims

We negotiated recovery of hundreds of millions of dollars in directors and officers insurance proceeds to fund settlements of securities class action claims asserted against a Fortune 500 company.  In doing so, we overcame insurer objections that the underlying securities settlements were not covered, should be related to earlier claims and paid by other policies, and were excluded based on their alleged connection to one of the largest corporate plea agreements in U.S. history.

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Substantial Recovery from Released Insurers

We recovered more than $10 million for a CEO, CFO, and other officers who had been completely cut out of the company’s court-approved insurance settlement by filing extra-contractual tort claims against more than a dozen insurers, ultimately resulting in multiple settlements.

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Insurance Funding for Historic Shareholder Derivative Claim Settlement

We recovered without litigation $75 million in directors and officers insurance proceeds to fully fund one of the largest shareholder derivative claims in United States history.  Gilbert successfully obtained this recovery despite vehement insurer opposition to the underlying derivative settlement based on their contentions that they had no coverage obligations because the alleged settlement was unreasonable, negotiated without their consent, and not covered under the terms of their policies.

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Unprecedented D&O Insurance Recovery to Compensate Victims of International Securities Fraud

We obtained millions of dollars in directors and officers insurance proceeds through an alternative dispute resolution process on behalf of a receiver for a defunct Chinese company that defrauded U.S. investors.  In this novel case, Gilbert was able to secure insurance proceeds despite multiple prior default judgments finding the policyholder had engaged in a massive securities fraud.

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Claims Against Government, Contractor And Insurers For Cuban Imprisonment

On behalf of Alan Gross, a U.S. citizen imprisoned by the Cuban government for more than 5 years, we filed three lawsuits in two federal courts against the U.S. government, a major government contractor, and contractor's insurers, seeking compensation for his imprisonment. Following intensive negotiations, we achieved a comprehensive settlement for our client on a confidential basis.

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Release of U.S. Prisoners Held Abroad

Following our successful efforts to secure Alan Gross’s release from Cuban prison, we have played a key role in negotiating the release of four other Americans imprisoned abroad.  We negotiated directly with the Cuban government and obtained the release of an American who had served 15 years of a 25-year sentence for attempting to smuggle his family from Cuba to the U.S.  We were materially involved in a U.S.-Iran prisoner swap, which freed our client Amir Hekmati, a former U.S. Marine initially sentenced to death and imprisoned for 5 years in Iran.  We also represented an American imprisoned in Vietnam for participating in a public demonstration.  He was released following our work with the U.S. Embassy in Vietnam, the Vietnamese Embassy in D.C., the U.S. State Department, and Congress.  Most recently, in 2019 Gilbert attorneys helped secure the release of Todd Leininger, a U.S. citizen who had been imprisoned in Venezuela on questionable charges since 2014.

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Eight-Figure Judgments Against Foreign Companies and Governments

Our lawyers obtained a trial verdict and damages award in excess of $25 million against Chinese and Dubai companies for copyright infringement.

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Mechanism to Allow First Imports into the U.S. of Cuban Products in 60 Years

Our lawyers navigated U.S. Treasury and Commerce regulations, negotiated with U.S. distributors and banks, and negotiated agreements with the Cuban government to import Cuban artisanal charcoal into the United States.  The charcoal, produced by private cooperatives in Cuba, is the first Cuban product to be imported and sold in the United States since the Cuban revolution.

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U.K. Schemes of Arrangement

Working with insurance liquidation officials in London, which hosts a massive insurance marketplace covering U.S. and worldwide risks, our lawyers developed new protocols under existing U.K. statutes to ensure that reinsurance assets in insurer liquidation proceedings were recovered efficiently and were then equably distributed to policyholders.  The first such “scheme of arrangement” in 1993 was drafted for five related insurers known collectively as the KWELM companies, which insured more than $5 billion in anticipated claims.  The KWELM scheme of arrangement proved to be very successful and ultimately paid significant percentages of agreed claims up to 90% plus.  The KWELM template also established a creditors committee that included representatives of U.S. policyholders to ensure that U.S. policyholders’ interests were considered.  The scheme of arrangement protocols developed for KWELM formed the basis for a number of similar insurer insolvencies, including some that are still making payments to policyholders to this day.

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Record-Breaking Settlement With State Insurance Guaranty Fund

We prosecuted a claim against a state insurance guaranty fund and settled the case for the largest amount ever paid by that guaranty fund on a single policyholder claim.

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Groundbreaking Ruling Against Insolvent Insurer

We secured a $30 million judgment in an insurer liquidation proceeding requiring an insolvent insurer to estimate and pay our client’s future (so-called incurred-but-not-reported, or IBNR) tort claims.

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Reform of Midland Liquidation Process

Our attorneys led a group of policyholder attorneys in seeking changes in procedures to expedite payments in the Midland Insurance Company Liquidation, which were ultimately accepted by New York officials.  Our attorneys, again working cooperatively with other policyholder counsel, successfully litigated the issue of whether restrictive NY law applied to all claims submitted to Midland Liquidators or whether a choice-of-law decision should be made for each policyholder claim.  Agreed claims have been established under this decision and initial payments have been made to policyholders.

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Over $1 Billion in Insurance Payments for Product Liability Claims

We resolved all coverage issues and secured more than $1 billion in insurance for a multinational building materials company with significant mass tort liability.

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Recovered $425 Million from One Insurer on Non-Product Asbestos Claims

Following vigorous litigation and court-ordered mediation, we recovered for an asbestos trust $425 million from a primary insurer with single-million aggregate limits. Our lawyers were among the first to identify and pursue so-called non-products claims under general liability insurance policies, thereby obtaining access for clients to separate and potentially unlimited pools of insurance coverage.

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Massive Insurance Recovery for Tort Defendant

As the settlement team in insurance coverage litigation for a medical device manufacturer, our lawyers recovered more than $1.5 billion in insurance proceeds to pay claims against our client.

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Pioneering Pursuit of Billions of Dollars in Mass Tort "Non-Products" Claims

Through litigation in state and federal courts and arbitration fora, we pioneered the pursuit of so-called “non-products” coverage for mass tort bodily injury claims.  The insurance industry had attempted to restrict its obligations for mass tort bodily injury claims to so-called “products” coverage, which generally is subject to aggregate limits of liability.  In contrast, “non-products” coverage for such claims often is uncapped under the plain language of the insurance policies.  This distinction has resulted in billions of dollars of additional payments by insurers in mass tort bodily injury cases.

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Litigation Resulting in Full Recovery from 19 Insurance Groups without Trial

Our attorneys were insurance counsel to a large manufacturer of air-purifying respirators, heat-protective clothing, and other safety equipment in an action against its insurers for coverage of tort claims alleging personal injury from exposure to asbestos, silica, and coal-mine dust.  Our aggressive litigation and creative settlement approaches allowed us to resolve coverage issued by all 19 separate solvent carrier groups fully and favorably without trial.

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Corporate Restructuring

Our attorneys were insurance and risk management counsel to a public company with significant mass tort liability.  Working with co-counsel, we were instrumental in proposing and implementing a successful corporate restructuring plan that allowed our client to pursue business opportunities more effectively while simultaneously managing its mass tort exposure.

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Insurance Settlement in Residual Value Coverage Dispute

In the midst of a five-week arbitration, we recovered, through settlement, approximately $100 million for an automobile distributor seeking insurance coverage for residual value losses on a large portfolio of leased vehicles.  In the course of the dispute, we secured rulings that our client could pursue its claims directly against the reinsurers, bypassing its own captive insurer; and that our client was not bound by an unfavorable arbitration clause in the captive insurance contract because the clause did not apply to the reinsurers.

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$200 Million Liability Insurance Recovery for Prominent International Law Firm

We recovered more than $200 million through several mediations with our client’s insurers and the underlying plaintiff group, resulting in the resolution of all outstanding claims against our client.

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Major E&O Recovery

As insurance counsel to a post-bankruptcy trustee, we recovered nearly $50 million in E&O insurance coverage.

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Oil-Spill Liability Fund Settlement

Our lawyers negotiated a substantial settlement of a claim against a statutory oil-spill compensation fund in connection with one of the world’s largest oil spills in U.S. waters.