Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 1, No. 4, August 17, 2004
Welcome to the fourth e-newsletter from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan. You were sent a copy of the newsletter because our records show that you requested to be on the mailing list. If you wish to unsubscribe, click here.
We assume that many of you are busy with summer vacation schedules and back-to-school activities -- as we on the CAC are as well. So unless there is something urgent to report between now and September 10th, our next issue of the CAC E-Newsletter will be Friday, September 10, 2004. Please note that all prior CAC e-newsletters are available on the CAC website by clicking on "Electronic Newsletter." We urge you to also visit the Settlement Facility website (www.dcsettlement.com) and CAC website (www.tortcomm.org) on a regular basis to download or view relevant documents and read updates and new information.
1. Informational Meetings in September 2004. Please mark your calendar to attend one of the following informational meetings scheduled in September 2004. The meetings are sponsored by the Settlement Facility and the Claimants' Advisory Committee and will address issues related to both settlement and litigation.
||Chicago Hyatt Regency Hotel
||151 East Wacker Drive
||Wednesday, Sept. 8, 2004
||Houston Community College Bldg.
||3100 Main Street
||Wednesday, Sept. 15, 2004
||9-12 p.m. and 1-4 p.m.
||Orlando Marriott Downtown
||400 West Livingston Street
||Tuesday, Sept. 21, 2004
||Sheraton Newark Airport Hotel
||128 Frontage Road
||Thursday, Sept. 23, 2004
||The Fairmont Hotel
||1717 North Akard Street
||Tuesday, Sept. 28, 2004
||Alexis Park Resort
||375 East Harmon Avenue
||Thursday, Sept. 30, 2004
* RSVP required for Houston sessions. Please email Claims Assistance at email@example.com or call 1-866-874-6099 to notify a representative which Houston meeting you will attend.
2. Tissue Expander and Tolling Plan Interpretation Update. The CAC filed responses to Dow Corning's motions regarding whether tissue expanders implanted in the breast are eligible as breast implants and whether the tolling language in Disease Option 2 applies to the "24 month/5 year" criteria. The responses are available on the CAC website under "Other Downloads." The Court has set a hearing for September 9th on both motions.
3. Product ID Issues. The CAC submitted a letter to U.S. District Judge Clemon (the MDL 926 Judge) and U.S. District Judge Hood regarding whether the MDL Claims Office should apply the 50% multiple manufacturer reduction to various types of implants designated as Dow Corning by the co-defendants in the Revised Settlement Program, such as Cronin and "silastic" (all small letters). We are hopeful that the CAC can work with the various courts and relevant parties to successfully resolve this issue soon. We will continue to update this issue as facts develop. You can read a copy of the CAC's letter submitted on this issue on the CAC website under "Other Downloads."
4. Pilot Program for Review of Implants by Dow Corning. The CAC successfully negotiated with Dow Corning to include a process for claimants to send their implants to Dow Corning for review and possible identification. This program is currently being tested to make sure that it is as easy and cost-efficient as possible for claimants to use. The program will allow claimants to send their implant(s) to Dow Corning for the cost of shipping (approximately $30-$60), and Dow Corning will review them at no cost to the claimant to determine if the implant(s) were made by Dow Corning. If it was, then the claimant will have acceptable proof of manufacturer for those implant(s). If Dow Corning determines that the implant(s) were not manufactured by it, then the implant(s) will be returned to the claimant along with identifying information, if any, that was found during the implant review. The program is available to claimants with any type of eligible Dow Corning implant(s); it is not limited to breast implants. For more information about this program, please contact the Claims Assistance Program at firstname.lastname@example.org or call 866-874-6099.
5. Late Claimants and Notice of Intent Claimants Update. There appears to be a lot of confusion over whether someone is a timely filed claimant, a "Late Claimant" or a "Notice of Intent Claimant." Claimants who are uncertain about their status should contact their attorney, if represented, or the Claims Assistance Program at email@example.com.
Timely Filed Claimants. If you filed a Proof of Claim form with Daticon by November 30, 1999 and subsequently received a postcard from them with a claim number assigned, then you are a timely filed claimant. Timely filed claimants do not need to file anything else to have a claim filed in the bankruptcy court. You may proceed with completing your Participation and claim forms.
Late Claimants. If you did NOT file a Proof of Claim form but you submitted a motion, letter or Notice of Intent form to the bankruptcy court by November 30, 1999, then you were classified as a "Late Claimant." Late Claimants are NOT eligible for any settlement benefits and cannot file suit against Dow Corning or any of the Released Parties; however, when the bankruptcy court issued its Order on November 30, 1999 confirming (approving) the Amended Joint Plan of Reorganization, the court stated that Late Claimants could become timely filed claimants if they completed and returned a Proof of Claim form by a certain date. The U.S. District Court set that date as August 12, 2004. How do you know if you were classified as a Late Claimant? Dow Corning collected the names of claimants (and attorneys where applicable) who filed a motion, letter or Notice of Intent form (but no Proof of Claim form) by November 30, 1999 and, in May 2004 sent each of these persons a notice and Proof of Claim form that instructed them that they should complete the Proof of Claim form and return it by August 12, 2004. There were approximately 4,335 Late Claimants who were sent a Notice from Dow Corning.
Notice of Intent Claimants. If you did not file a Proof of Claim form or any other document seeking to file a claim with the bankruptcy court by November 30, 1999, the Plan provides that you may file a "Notice of Intent" form with Daticon on or by 90 days after the Effective Date. (The Notice of Intent form is available on the CAC website under the heading "Other Downloads.") The deadline to file a Notice of Intent form is August 30, 2004. This means that you should plan to mail the Notice of Intent form no later than August 30, 2004, although we urge you to mail it earlier than that. If you have a claim already on file, please do not file another Notice of Intent form, and please do not send the form to the Settlement Facility. The Notice of Intent form should be mailed to Daticon using the address that is on the form.
What happens if you do not file your Notice of Intent form by August 30, 2004? You will not be eligible to participate in the Amended Joint Plan of Reorganization and will be barred from seeking compensation for your claim. Section 2.02(b)(iii) of the Claims Resolution Procedures provides that you may appeal the determination of ineligibility to the bankruptcy court.
6. Settlement Facility Issues and Updates.
Claims Assistance Program. The CAC has received a number of phone calls, emails and other correspondence about experiences of claimants and attorneys with the Claims Assistance Program (CAP). The Claims Assistance Program is part of the Settlement Facility, staffed by employees of that office, and supervised by the Claims Administrator. The Claimants' Advisory Committee does not operate this program; however, as required by Section 7.01(e) of the Claims Resolution Procedures, we are charged with advising and providing input on the program to the Claims Administrator. The CAC takes your comments about your experience with the Claims Assistance Program seriously. To assist us, we ask that when you write with a comment or complaint, you provide your full name and SID (System ID Number) as well as a copy of any document that pertains to the comment / complaint. We are working closely with the Claims Administrator with our common goal of ensuring that claimants and counsel receive prompt and accurate answers to their questions and fairness in the processing of claims as required by the Claims Resolution Procedures. Please direct all comments and concerns you have to us at firstname.lastname@example.org. We are meeting with the Claims Administrator and staff next week to review issues of quality control and will report on this issue on the CAC website and future e-newsletters.
Please note that we cannot answer questions about the status of your individual claim or payment. Please direct all such questions to the Claims Assistance Program at email@example.com.
Plan Interpretation Questions. The CAC has also received a number of inquiries from claimants and attorneys about their Notification of Status letter deficiencies, and issues regarding the fairness and/or consistency of the claim reviews. Some of these involve Plan interpretation questions, such as whether a claimant is barred from withdrawing an Expedited Release claim prior to cashing the Expedited Release payment. We are currently working with the Debtor's Representatives to resolve a number of these issues that have recently arisen and hope to report more on this in future newsletters. In the meantime, if you have questions about your Notification of Status letter result that cannot be answered by reviewing the Claimant Information Guide and Plan Documents, then please contact us at firstname.lastname@example.org. Please include in your email a scanned copy of the Notification of Status letter and any other relevant documents.
Re-Reviews, Error Correction and Appeals. The Settlement Facility has advised us that all requests for an appeal from a deficiency or denial of benefits in a Notification of Status letter first go through an Error Correction review process. This means that the claim is reviewed to determine if an error was made by the Settlement Facility during the first review of the claim. If an error is found, the claimant or her attorney of record will be notified of the error and the new award determination. If an error is not found, then the claim will proceed to an appeal to the Claims Administrator.
7. Litigation Option. For claimants considering rejecting the Settlement Facility to file a lawsuit in court, we point out that you want to wait to make your litigation election until it is closer to the deadline of November 29, 2004. There are ongoing discussions with counsel representing Dow Corning and counsel for some opt-out claimants on revising the Case Management Order. We will report more on this as it becomes available. Of course, make your own decision on whether to opt-out and when you should do so after careful consideration and after consulting with your attorney if you have one.
8. Filing Deadlines. Please mark your calendar with the claim submission deadlines in 2004. Please note that most of these deadlines mean that your claim forms and materials must be received by the appropriate entity by the posted deadline. Please mail all forms early enough so that they are received by the deadline listed below.
||Type of Deadline
|August 30, 2004
||Deadline to file Notice of Intent form with Daticon (Reminder: register with MDL 926 Claims Office at the same time if you have not already done so)
|October 30, 2004
||Deadline for Notice of Intent claimants to return Notice of Intent survey to Settlement Facility
|November 29, 2004
||Deadline to return Participation Form to Settlement Facility if you want to opt-out
9. Deficiency / Cure Deadlines. If you receive a Notification of Status letter from the Settlement Facility stating that you have a deficiency in your claim submission, please note that there are very short deadlines to cure most deficiencies. The deadlines are listed below:
||Deadline to Cure Deficiency
|Proof of Manufacturer
||No deadline but your claim for Explant, Rupture, Medical Condition or Disease will not be reviewed until you first have acceptable proof of an eligible implant
||6 months from date of Notification of Status letter
||6 months from date of Notification of Status letter
(Classes 9, 10.1 and 10.2)
|6 months from date of Notification of Status letter
||1 year from date of Notification of Status letter
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