CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Dow Corning Bankruptcy Settlement
Volume 12, No. 1, February 10, 2015
Contact the CAC at: email@example.com or
phone: (419) 394-0717
fax: (419) 394-1748
Sybil Niden Goldrich
Ernest Hornsby, Esq
Dianna Pendleton-Dominguez, Esq.
This is the 119th e-newsletter (Vol. 12, No. 1) 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 or to reply to this newsletter, send an email to: firstname.lastname@example.org. Please do not hit "Reply" to this email address. To contact the CAC, use the email address: email@example.com or firstname.lastname@example.org. You can also contact the CAC directly at 419-394-0717.
STATUS OF PREMIUM PAYMENTS
First, the good news. The SF-DCT has completed issuing approximately 95-98% of partial Premium Payments to eligible Dow Corning breast implant claimants. In January, they issued $11.44 million in partial Premium Payments, for a total of $98,445,984 issued to 44,451 claimants in the past year.
Unfortunately, just as the SF-DCT was about to issue its February 2015 directive to complete the remaining partial Premium Payments, the Court of Appeals for the 6th Circuit issued a ruling on January 27, 2015 reversing the District Court's approval of partial Premium Payments and sending the issue back to Judge Hood for further proceedings. As a result, the SF-DCT stopped issuing all further partial Premium Payments to claimants including checks returned for re-issuance. This means that:
1) no further partial Premium Payments will be issued, so if you did not receive a check you will not receive a check until the District Court and possibly the Court of Appeals authorizes it;
2) if you have returned a check to the SF-DCT for any reason (i.e., to request that the check be made payable to the claimant's estate, to resolve a lien dispute, to issue to a new name/address), the SF-DCT will not, at this time, re-issue the check;
3) if your check is lost in the mail, you should notify the SF-DCT of this, but they will not re-issue a new check to you;
We recommend at this point that claimants immediately cash their partial Premium Payment checks that they have received. The SF-DCT will honor existing checks that were issued.
The CAC believes that the ruling is in error. The Tort Claimants' Committee carefully negotiated the terms of the Settlement Plan with Dow Corning to include precise language about what standard would be used to evaluate whether Premium Payments should be authorized ("reasonable assurance"), and, if so, what standard of review the Court of Appeals would apply to the District Court's ruling ("abuse of discretion standard"). The Court of Appeals has disregarded the language in the Plan and has inserted a standard, urged by Dow Corning, requiring "virtual assurance" instead of "reasonable assurance." In addition, they have decided to review the District Court's decision "de novo" which means "new" instead of deferring to the District Court's evaluation of the evidence ("abuse of discretion" standard).
The CAC is filing a petition for rehearing today before the Court of Appeals concerning these two issues. We do not know if the Court of Appeals will accept the request. We will post any updates on our website and in future newsletters. We have posted a copy of the Court of Appeals ruling and our Petition for Rehearing on our website at www.tortcomm.org.
We realize this is very upsetting news. We are deeply troubled and disappointed by the Court of Appeals decision and by Dow Corning's continued appeals and litigation over terms of the settlement agreement. We view this matter with the utmost urgency and importance, and we will not stop our efforts until every single claimant that is eligible for a Premium Payment has received it. We do not believe the Plan intended that claimants would receive their Premium Payment at the end of the Plan in 2019. We have carefully monitored the funding to make sure funds would be available to make all future Base Payments, and we believe that the calculations of the neutral expert who reviews this issue for the Finance Committee supports our position and that of the Finance Committee. We will continue to urge authorization of the 50% partial Premium Payment to the small group of claimants caught in the middle by the Court of Appeals ruling, and to urge the Court to approve 100% Premium Payments to all approved claimants as soon as possible.
ONTARIO COURT APPROVES NEGOTIATED RESOLUTION OF DISPUTE INVOLVING CLAIMANTS IN THE ONTARIO SUBCLASS (CLASS 6B) AND SETTLEMENT FACILITY (CLASS 6.1)
We reported several months ago about a dispute involving claimants who submitted a claim to the SF-DCT and were processed and, in many cases, had their claim approved and payment issued as a member of either Class 5 or 6.1. At some point, the claimants were identified as also potentially being a member of the subclass that was proceeding separately in Ontario, Canada (class 6B). Since a claimant can only be a member of one class in this settlement, their claims were placed on hold until the matter was resolved. After much discussion, the CAC, Dow Corning, and Ontario Class Counsel reached a resolution of the matter. On February 5, 2015, the Ontario Court entered an Agreed Order. Affected claimants will be individually notified and will be given specific instructions on how they should proceed.
Please keep in mind that this affects only a small number of claimants. If your SID number is not listed below, then you can disregard this section about the Ontario settlement.
1) SCHEDULE A: There are 11 claimants who are in this situation: the claimant is either a U.S. citizen or was implanted in the U.S. They will be allowed to opt-out of the Ontario class within 30 days and then proceed with their claim in the SF-DCT. Affected SID #s: 0608747, 0957519, 1093017, 1107330, 1320215, 1462182, 6175376, 6181211, 6324261, 6207309, and 2735880. (We are not printing claimant names because of privacy concerns.)
2) SCHEDULE A-1: There are 7 claimants who are in this situation: If a claimant is a Resident Alien of the U.S., they will also be allowed to opt-out of the Ontario class within 30 days and then proceed with their claim in the SF-DCT. Affected SID #s: 1089988, 1126050, 1126062, 2787689, 6450249, 6451460, and 2152971.
3) SCHEDULE A-2: There are 12 claimants who are in this situation: the claimants have not demonstrated that they are Resident Aliens or citizens of the U.S. and did not have their implantation in the U.S. They will be allowed to submit proof that they are resident aliens or citizens of the U.S. and, if they do, they will be allowed to opt-out of the Ontario class and proceed with their claim in the SF-DCT. If they do not submit such proof, their claims will be eligible as late claimants in the Ontario Settlement Plan. Affected SID #s: 0618598, 1013856, 1049438, 1079072, 1356354, 2737898, 6165823, 6246471, 6448974, 1096294, 1322049, and 1049429.
4) SCHEDULE B: There are 11 claimants who are in this situation: These claimants meet the definition for the Ontario subclass 6B and their claims will be paid, to the extent eligible, as late claimants in the Ontario Settlement Plan. Affected SID #s: 1032060, 1066959, 1073958, 1134173, 3001461, 3002765, 3053903, 3235857, 3255459, 3264242, and 6479609.
5) SCHEDULE C-1: There are 7 claimants who are in this situation: These claimants appear to be in the Ontario subclass based on implantation in Ontario, but they may have a principal geographical nexus to a province in Canada other than Ontario. The parties agreed that these claimants are not barred from submitting claims to other facilities, including the SF-DCT. Affected SID #s: 1000185, 1232230, 1364481, 3002678, 3053430, 3271773, and 6450371.
6) SCHEDULE C-2: There are 8 claimants who are in this situation: the claimants were identified as potentially having a connection to Ontario but after further review, they were not implanted in Ontario and were not resident in Ontario in 1993. They are not in the Ontario settlement so the Ontario court has no jurisdiction over their claims. Affected SID #s: 1049383, 1118869, 1301550, 1307709, 3218651, 3246281, 6069742, and 1096119.
7) SCHEDULE C-3: There are 12 claimants who are in this situation: the claimants have presented claimants that have been rejected or appear not to qualify for any type of settlement payment. The parties agree that no further action is required for these claimants. Affected SID #s: 945654, 1095881, 1125752, 1265771, 1278611, 1795743, 2791034, 3017937, 3047190, 3101253, 3252018, and 3269199.
8) SCHEDULE C-4: There are 4 claimants who are in this situation: two of the claimants appear to be member of the British Columbia Non-Resident subclass who opted into the British Columbia settlement. They are barred from submitting claims to the SF-DCT and Ontario. The other 2 claimants appear to be members of the British Columbia Resident subclass. The parties agree that these claimants cannot assert claims in the Ontario settlement plan because the Ontario court does not have jurisdiction over these claimants. Affected SID #s: 2771092, 3090931, 3121757, and 3025519.
If your SID number is listed above, you should contact the Ontario Claims Administrator's office at the number provided in your letter, Ontario Class Counsel, and/or the SF-DCT (for those on Schedule A, A-1, and A-2) at email@example.com.
Please read the letter from the Ontario Claims Administrator carefully. You MUST comply with a very short deadline to opt-out of the Ontario class if you wish to proceed with your claim in the SF-DCT. The letter from the Ontario Claims Administrator contains the correct information and form to use. We urge all affected claimants to take action immediately if you have a deadline. Don't wait until the last minute to fill out your form or return your papers. Once the deadline passes, the Ontario court has authorized the Ontario settlement to distribute its remaining funds and then the fund will be permanently closed.
PLEASE KEEP YOUR ADDRESS AND CONTACT INFORMATION CURRENT WITH THE SF-DCT.
Please remember to keep your contact information current with the SF-DCT, including any information about probate, attorney representation, and address / phone number / email address. Thousands and thousands of checks and award letters are returned to the SF-DCT every year because a claimant has moved and failed to update her new address with the SF-DCT.
There are many other claimants who have an approved claim for payment, but the SF-DCT cannot locate them. If you move, make sure you notify the SF-DCT. Their contact information is:
SF-DCT or by email: firstname.lastname@example.org
P.O. Box 52429 or by phone: 1-866-874-6099
Houston, TX 77052-2429
Please mark your calendar with the following claim submission deadlines. Please note that these deadlines mean that your claim forms and materials must be received by the SF-DCT by the posted deadline. Please mail all forms early enough so that they are received by the deadline listed below.
Type of Deadline
June 3, 2019
Disease or Expedited Release Claim submission deadline for all claims in Classes 5, 6.1 and 6.2 (this deadline does NOT apply to Late Claimants)
If you would like to read prior CAC e-newsletters, they are available on the CAC website by clicking on "Electronic Newsletter." We urge you to visit the CAC website (www.tortcomm.org) on a regular basis to download or view relevant documents and read updates and new information. To contact the CAC, send an email to: email@example.com or send a letter to the Post Office Box address for the CAC at:
Claimants' Advisory Committee
P.O. Box 665
St. Marys, Ohio 45885
Phone Number: (419) 394-0717
Fax Number: (419) 394-1748
NOTICE: This document is copyrighted. You are not authorized to post it on any website without express, prior written permission of the Claimants' Advisory Committee.