TINA COX, CHARLES HOMER CLOAR, MARY H. CLOAR, ) Civil Action No. 18,844 MELODY ALFORD, COUNTRY VILLAGE MOBILE HOME PARK, ) and PHYLLIS BIRMINGHAM on behalf of themselves ) NOTICE OF CLASS ACTION all other persons similarly situated, ) AND PROPOSED SETTLEMENT PLAINTIFFS, ) ) v. ) ) SHELL OIL COMPANY, D/B/A SHELL CHEMICAL COMPANY, ) and HOECHST CELANESE CORPORATION, ) DEFENDANTS. )
THIS NOTICE MAY AFFECT YOUR RIGHTS.
PLEASE READ IT CAREFULLY
THIS NOTICE ANSWERS THESE IMPORTANT QUESTIONS:
1. Why should I read this Notice?
2. What is the lawsuit about?
3. What is polybutylene plumbing?
4. Who is in the Settlement Class?
5. What are the terms of the proposed Settlement?
6. Do I need to do anything in order to participate in the Class and Settlement?
7. How do I make a Claim?
8. Who represents the Settlement Class?
9. How can I exclude myself from the Settlement?
10. What is the Settlement approval procedure?
11. Where do I get additional information?
Your rights may be affected by the proceedings in the lawsuit known as Cox, et al. v. Shell Oil Company, d/b/a Shell Chemical Company, and Hoechst Celanese Corporation, Civil Action No. 18,844, pending before Judge Michael Maloan, in the Chancery Court for Obion County, at Union City, Tennessee ("the Court"). This notice is given pursuant to Rule 23 of the Tennessee Rules of Civil Procedure and the order of the Chancery Court of Obion County, Tennessee.
The purpose of this Notice is to inform you (1) that there is now pending in this Court an action brought as a class action on behalf of owners and past owners of structures (including houses, commercial properties and mobile homes) and other improvements to real property with a certain type of plumbing; and (2) that there has been a settlement of this action ("Settlement"), pursuant to a written agreement among the parties ("Settlement Agreement"), which has been preliminarily approved by the Court. Although nothing in this Notice alters or is intended to alter the terms of the Settlement Agreement, the Notice sets forth essential information concerning the Settlement and your potential rights under that Settlement.
Plaintiffs Tina M. Cox, Charles Homer Cloar, Mary H. Cloar, Melody Alford, Country Village Mobile Home Park and Phyllis Birmingham on behalf of themselves and all persons similarly situated, brought the above-referenced class action alleging that, among other things, Shell Oil Company ("Shell") and Hoechst Celanese Corporation ("Celanese") ("Defendants") supplied raw materials used by other entities in the manufacture of polybutylene plumbing. Plaintiffs further allege that this plumbing is defective. The action seeks monetary relief including the cost of plumbing system replacement and the cost of repair of property damage associated with any leaks. The Defendants deny any liability relating to polybutylene plumbing, and further deny that any Plaintiff or Class Member is entitled to damages or any other relief from the Defendants. The Court has not made any rulings on the merits of Plaintiffs' claims or of the defenses of Shell and Celanese.
Polybutylene plumbing inside a structure ("PB In-House Plumbing") is a potable water supply system containing polybutylene ("PB") pipe and either acetal (plastic) or metal insert fittings (such as tees, and elbows). PB pipe is a non-rigid, sometimes curved, usually gray (or possibly silver or black) plastic pipe. When used in the underground service from the water company to a structure (a "Yard Service Line"), PB pipe is blue, gray or black. PB pipe is not used for drains, waste or vent piping. Also PB pipe is not PVC or CPVC, which is a rigid white or off-white plastic pipe. "PB Plumbing" refers to both PB In-House Plumbing and Yard Service Line. "PB Plumbing" does not include yard sprinkler systems, irrigation systems, fire sprinkler systems, sewer lines, faucets or fixtures.
Insert fittings are used to join pieces of polybutylene pipe. The insert fitting is inserted into the pipe and clamped with a metal (aluminum or copper) crimp ring over the outside of the pipe. Metal insert fittings are either copper or brass. Acetal insert fittings are hard gray or white plastic. They are not black. Insert fittings are not grabber, flare or compression fittings which are often threaded and use a plastic or metal nut to secure the seal.
On June 13, 1995, the Court certified a nationwide plaintiff class. Thereafter, the parties reached their Settlement, and on July 31, 1995, the Court granted preliminary approval of the Settlement Agreement. The benefits of the Settlement Agreement are summarized in Section 5 of this Notice. The Settlement Class is currently composed of those who meet the following criteria:
You may be a part of this Class if you: (1) own real property or structures in the United States in which there was installed between January 1, 1978 and July 31, 1995, polybutylene plumbing with acetal insert or metal insert fittings or a polybutylene Yard Service Line; (2) own or previously owned such real property or structures and have already incurred any cost or expense, by reason of leakage from, or from failure, repair, or removal of, all or any portion of such polybutylene plumbing or Yard Service Line which was installed between January 1, 1978 and July 31, 1995; or (3) will own such real property or structures during the term of entitlement to relief under the Settlement Agreement.
The Class definition excludes: (1) All persons who, in accordance with the terms of the Settlement Agreement, execute a timely request for exclusion from the Settlement Class; (2) the Defendants; the Released Manufacturers; the parent and subsidiary, affiliate and controlled entity of any of them; and the officers and directors of each of them; and (3) all parties to Geno Cioe, et al. v. Shell Oil Company, et al., Case No. 662214, and Robert L. Williams, et al. v. Shell Oil Company, et al., Case No. 658403, and related combined actions (Cases Nos. 640245, 654709, 656787, 661372, 665521 and 665527) in the Superior Court of the State of California in and for the County of San Diego, and all members of the certified classes in such lawsuits.
The Settlement does not settle or release any claims for bodily injury, wrongful death, or associated emotional distress and mental anguish. The Settlement provides a program to Eligible Claimants for polybutylene plumbing replacements, and payment for repair costs and/or damage to tangible personal property caused by qualifying leaks.
On July 31, 1995, the Court granted preliminary approval to the Settlement Agreement subject to final approval following the Hearing described in Section 10 below.
The essential terms of the proposed settlement are as follows:
A. The Settlement Fund
The Settlement Agreement requires the Defendants to commit $850 million to a Settlement Fund. Up to $75 million of the Settlement Fund will be allocated to pay for past expenses incurred as a direct result of qualified leaks in PB Plumbing. If you make such a claim but the $75 million is inadequate to pay fully all such past expenses, you will have the right either to receive a pro rata portion of the $75 million or to exclude yourself from this portion of the Settlement, although you will still be governed by the Settlement for all other purposes, including claims for replacement for your PB Plumbing. The balance of the Settlement Fund will be allocated to pay for replacement of PB Plumbing, and payment for future expenses and damages to tangible property, related to qualified leaks, to which Class Members may be entitled under the Settlement Agreement and for administrative expenses. If the Settlement Fund is exhausted before all Class Members have received the relief to which they are entitled under the Settlement, the Defendants may (a) provide additional funds for the continuation of the Settlement or (b) provide no additional funds, in which case Class Members who would still be entitled to relief under the Settlement may pursue their unpaid claims against the Defendants.
B. Eligible Claimants
All Class Members who are Eligible Claimants may participate in the recovery program established by the Settlement Agreement. Several factors determine whether a Class Member is an Eligible Claimant: (1) the date of installation of the Class Member's PB Plumbing System; (2) the nature and cause of any leak in the PB Plumbing; (3) the date on which any leak occurred; (4) the type of "Unit"1/ in which the leak occurred; and (5) whether the Class Member has been a party to a prior settlement, judgment or release relating to the Class Member's PB Plumbing.
You may be an Eligible Claimant under the Settlement Agreement and entitled to relief if you are a Class Member and (1) you have had one or more past Qualifying Leaks or Qualifying Yard Service Leaks and incurred, by reason of such leakage, any cost or expense or damage to tangible property from the repair or removal of all or any portion of your PB Plumbing; or (2) you have one or more future Qualifying Leaks or Qualifying Yard Service Leaks (a) by August 21, 1996; (b) within 10 years after the date of installation of the PB In-House Plumbing for a Type II Unit and all Yard Service Lines; (c) within 16 years after the date of installation ( but not later than March 10, 2007) for any PB In-House Plumbing containing metal insert fittings, when installed in a Type I Unit that is a single-family residence (e.g., a house, duplex, triplex, quadruplex, condominium, or townhouse); or (d) within 13 years after the date of installation of the PB In-House Plumbing for all other Type I Units.
You are not an Eligible Claimant under the Settlement Agreement if, with respect to PB Plumbing, you have previously entered into any other settlement agreement, are covered by a settlement agreement with the Defendants, signed a release in favor of the Defendants, been part of a trial and subject to a judgment rendered in such trial, or by the operation of accord and satisfaction.
To be a Qualifying Leak or Qualifying Yard Service Leak,2/ the leak must occur within the time periods set forth above and must be the result of a failure in the PB In-House Plumbing or Yard Service Line which results in an unwanted discharge of water, but excludes (1) a leak experienced in the first year of any applicable warranty period; (2) a leak unrelated to the ordinary use of the PB Plumbing; (3) a leak that may be repaired without cutting the wall in or at a valve or a riser or an adapter to a fixture; (4) a leak in an ice-maker line; or (5) a leak in a water meter or any part of the PB Plumbing which you do not own.
If a leak occurs within any of these time periods in a Unit not owned by a Class Member, and which causes damage to tangible property in the Class Member's Unit, or to the Unit itself, the Class Member may be an Eligible Claimant with respect to such damage.
C. Recovery Program
Eligible Claimants will be entitled to receive payment for their previously unreimbursed and documented costs of repairing Qualifying Leaks or Qualifying Yard Service Leaks in their Units and physical damage to their tangible property resulting from these Leaks, except to the extent that such damage results from their failure to make reasonable efforts to mitigate. Class Members are not entitled to receive payment for repairs or other work the member did not pay for or for repairs, other work or property damage to the extent such cost or loss was reimbursed by insurance carriers or other persons.
In addition to receiving payment for repairs and damages as described above, an Eligible Claimant may be entitled to receive a replumb or Yard Service Line replacement (depending on whether the Qualifying Leak(s) have been in the PB In-House Plumbing or Yard Service Line), at no cost to the Claimant, under the following circumstances:
(1) If a Qualifying Leak or a Qualifying Yard Service Leak occurs, respectively, in the Unit's PB In-House Plumbing or Yard Service Line on or after August 21, 1995; or (2) If two or more Qualifying Leaks or Yard Service Leaks occurred, respectively, in the Unit's PB In-House Plumbing or Yard Service Line before August 21, 1995. A Qualifying Yard Service Leak does not apply towards eligibility for a replumb. A Qualifying Leak in the PB In-House Plumbing does not apply towards eligibility for a Yard Service Line replacement.
Replumbs and Yard Service Line replacements shall consist of replacing the PB In-House Plumbing or Yard Service Line with a non-polybutylene system of the Claimant's choice. All Qualifying Leaks or Qualifying Yard Service Leaks must occur within the time frames specified under the definition of "Eligible Claimant," in Section 5B, above.
D. Deadlines for Claims
All claims for reimbursement of expenses, damage to tangible property, or replumbs or Yard Service Line replacements resulting from Qualifying Leaks or Qualifying Yard Service Leaks occurring before August 21, 1995, must be filed no later than August 21, 1996. All claims for reimbursement of expenses, damage to tangible property, or replumbs and Yard Service Line replacements resulting from Qualifying Leaks or Qualifying Yard Service Leaks that occur after August 21, 1995, must be made by the following deadlines:
(1) for Qualifying Leaks or Qualifying Yard Service Leaks occurring between August 21, 1995 and August 21, 1996, claims must be postmarked on or before November 19, 1996;
(2) for Qualifying Leaks occurring after August 21, 1996, in Type II Units and all Qualifying Yard Service Leaks, the claim must be filed within 11 years of the Date of Installation of the PB In-House Plumbing or Yard Service Line;
(3) for Qualifying Leaks occurring after August 21, 1996, in Type I Units that are single-family residences (e.g., a house, duplex, triplex, quadruplex, condominium, or townhouse) with metal insert fittings, the claim must be filed within 17 years of the Date of Installation of the PB In-House Plumbing (but not later than September 10, 2007);
(4) for Qualifying Leaks occurring after August 21, 1996, in all other Type I Units, the claim must be filed within 14 years of the Date of Installation of the PB In-House Plumbing.
A blue postcard titled Request For Claim Form is enclosed for your use in order to commence the claim process. Claim forms will be mailed to those who have requested them after Court approval of the claim form and claim process, which has not yet occurred.
E. Allocation And Priority
Except with respect to the $75 million that is allocated for past expenses as described in Section 5.A., the Settlement Fund shall be allocated to Eligible Claimants in the order received. Once 80% of the Settlement Fund has been expended, replumbs and Yard Service Line replacements shall take priority over cash payments to Eligible Claimants.
F. Releases And Assignment
In exchange for the ability to participate in the Settlement, Class Members agree to release, all claims against the Defendants relating to any defects or alleged defects in PB Plumbing, other than claims for bodily injury, wrongful death, or associated emotional distress and mental anguish.
Section 15 of the Settlement Agreement provides that Class Members also assign to the Defendants certain claims the Class Members may have against certain entities, relating to any defects of PB Plumbing, including all claims against E.I duPont deNemours & Co.
G. Attorney Fees And Costs
In addition to the Settlement Fund, Defendants have agreed to pay the reasonable fees and expenses of Class Counsel, in such amount as may be approved by the Court pursuant to Class Counsel's application for award and reimbursement, and to pay each single Representative Plaintiff or Representative Plaintiff married couple $3000 in recognition of their efforts on behalf of the Settlement Class, subject to Court approval. The attorney fee and costs application shall be in the combined amount of $45 million.
NO. IF YOU WANT TO REMAIN A MEMBER OF THE CLASS AND PARTICIPATE IN THE SETTLEMENT DESCRIBED HEREIN, YOU NEED DO NOTHING AT THIS TIME.
If you remain a member of this Class, then:
(1) The Plaintiffs and Class Counsel listed in this Notice will act as your representatives and counsel for the presentation of the charges against the Defendants. If you desire, you may also appear by your own attorney, at your own expense.
(2) You may make a claim to recovery from the Settlement Fund, and you may participate in the benefits of the Settlement. If the Settlement is not approved you will be bound by that result also.
If you believe you are an Eligible Claimant, as defined in Section 5.B, in order to share in the Settlement Fund, you must make your claims by the applicable deadlines described in Section 5.D, and follow any procedures set by the Court and provide the information requested to support and verify your claim. To start your claims procedure, you should complete, sign and return the enclosed blue post card titled "Request for Claim Form."
A. Class Representatives.
Plaintiffs Tina Cox, Charles Homer Cloar, Mary H. Cloar, Melody Alford, Country Village Mobile Home Park, and Phyllis Birmingham have been designated as Class Representatives by the Court.
B. Class Counsel.
In its June 13, 1995 Order of Nationwide Class Certification, the Court appointed the following Class Counsel: Don Barrett, Esq., Barrett Law Offices, Lexington, Mississippi; Michael D. Hausfeld, Esq. and Gary E. Mason, Esq., Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; and Bruce Conley, Esq. and Damon E. Campbell, Esq., Conley, Campbell, Moss & Smith, Union City, Tennessee. For purposes of prosecuting class claims, representing the Class throughout the settlement approval process and administering any settlement approved by the Court, the following firms have been appointed to serve as additional Class Counsel: Gordon Ball, Esq.; Michael A. Caddell, Esq.; David H. Weinstein, Esq.; Trial Lawyers for Public Justice, P.C.; Lieff, Cabraser, Heimann & Bernstein; Hagens & Berman; Heins Mills & Olson, P.L.C.; Jackson, Taylor & Martino; Patrick Pendley, Esq.; Phillip Feliciano, Esq.; Moore & Brown; Thomas Jessee, Esq.; Carey & Danif, L.L.C.; Levin, Fishbein, Sedran & Berman; Moriarty & Associates, P.C.; Caddell & Conwell, P.C.; Weinstein Kitchenoff Scarlato & Goldman Ltd.; Kohn, Swift & Graf, P.C.; Law Offices of Marc D. Murr, P.C.; Bristow, Hackerman, Wilson & Peterson, P.C.; Law Offices of Dennis C. Burns; and Law Offices of Charles E. Dorr, P.C.
These attorneys represent the interests of the Class, and you will not be charged for their services. You also have the right to hire your own attorney. If you hire your own attorney, you will be responsible for paying that attorney's fee. You also have the right to represent yourself before the Court.
If you do NOT want to remain a Class member and participate in the proposed Settlement, and wish to exclude yourself, that is, to "opt out" of this lawsuit, then you must personally sign and return the enclosed orange Exclusion Request postcard or other personally signed written exclusion request to In re Cox v. Shell, P.O. Box 175, Minneapolis, Minnesota 55440-0175, postmarked by not later than October 20, 1995. Unsigned forms will not be accepted. No one else can sign your Exclusion Request for you. If you send in an exclusion request, you may not also send in a blue Request for Claim Form postcard.
By electing to be excluded from the Class (i) you will not share in any recovery that may be paid to Class Members as the result of the Settlement; (ii) you will not be bound by any further orders or judgments entered for or against the Class; and (iii) you may present any claims you have against Defendants by filing your own lawsuit at your own expense, or you may seek to intervene in this lawsuit as an individual plaintiff at your own expense.
The Court will hold a formal Fairness Hearing on November 8, 1995, at the hour of 9:00 a.m., in the Courtroom of Judge Michael Maloan, Chancery Court, Court House, Union City, Obion County, Tennessee. At the Fairness Hearing the Court will consider whether the above-described Settlement should be granted final approval as fair, adequate, and reasonable and in the best interests of the Class as a whole. You may attend this hearing if you wish, but you are not required to do so in order to participate in the Settlement. The Court reserves the right, without further notice to the Class, to adjourn or continue the Fairness Hearing from time to time thereafter, and to approve changes to the Settlement Agreement, as long as such changes do not change the Agreement's essential terms and are agreeable to the settling parties.
If you decide to opt out of the Class (as described in Section 9 above), then you are not entitled to comment on the proposed Settlement or be heard at the Fairness Hearing. If you decide to remain in the Class, and you wish to comment in support of, or in opposition to, the Settlement described in Section 5 of this Notice, you may do so, provided that you submit your comments, in writing, to In re Cox v. Shell, P.O. Box 175, Minneapolis, Minnesota 55440-0175, postmarked not later than October 20, 1995. If you wish to appear at the Fairness Hearing and be heard orally, in support of or in opposition to the Settlement, you may do so if you file with the Clerk of the Court, at the Union City, Tennessee address indicated in Section 11 below, a written notification of your desire to appear personally, indicating (if in opposition to the Settlement) briefly the nature of your objection. Such notice must be postmarked not later than October 20, 1995, and a copy of it must be sent, by the same postmark date, to In re Cox v. Shell, P.O. Box 175, Minneapolis, Minnesota 55440-0175. If you do not comply with the procedure and the deadlines stated herein, you may not be entitled to be heard at the Fairness Hearing or to otherwise contest the approval of the Settlement, or to appeal from any orders or judgments of the Court entered thereon.
The Court's determination on the final approval of the proposed Settlement will be binding on all Class Members (except for those who timely opt out of the Class in the manner described above). If the Court grants approval of the Settlement, the judgment will release and dismiss all Class Members' settled claims. This release and dismissal will bar any further suit by or on behalf of the Class Members on settled claims. Instead, Class Members will obtain the rights accorded them under the Settlement.
If the Settlement is not approved by the Court, the case will remain in Court, and will proceed as active litigation. If there are further actions that are taken in this lawsuit that affect your rights, you will receive notice.
Current information is available by calling 1-800-876-4698. A regularly updated recorded message provides current information. If you decide to remain a member of the Class and you wish to communicate with Class Counsel, you may do so by writing to In re Cox v. Shell, P.O. Box 175, Minneapolis, Minnesota 55440-0175.
The foregoing is only a summary of the circumstances surrounding the litigation, the claims asserted, the settlement proposed, and the matters related thereto. You may seek the advice and guidance of your own private attorney, at your own expense, if you desire. For more detailed information, you may review the pleadings, records, and other papers on file in this litigation, which may be inspected during regular business hours at Clerk & Master, Obion County Chancery Court, Union City, Tennessee 38261. Copies of the complaint, the Settlement Agreement and the papers filed in support of approval of the proposed Settlement are available upon written request to Class Counsel, In re Cox v. Shell, P.O. Box 175, Minneapolis, Minnesota 55440-0175.
Dated: August 24, 1995
Hon. MICHAEL MALOAN
Chancellor
REMINDER:
Important Dates and Deadlines
"Opt Out" Postmark Deadline: October 20, 1995
Comment/Objection Postmark Deadline: October 20, 1995
Fairness Hearing Date: November 8, 1995
Time: 9:00 a.m.
Place: Court House
Union City, Tennessee
2/An otherwise Qualifying Leak or Qualifying Yard Service Leak does not apply towards a "replumb" ("replumb" means replacement of PB In-House Plumbing) or Yard Service Line replacement, respectively, when the leak: