(by way of ilena rose)
Looks like we may get some of our money back! b Subject: Order 13 HEIDI LINDSEY, et al.,) Plaintiff(s); ) -vs.- ) No. CV 94-P-11558-S )DOW CORNING CORPORATION, al., ) Defendant(s). )Order No 13A(Modifying Amount of Common Benefit Fund Assessment) The court, after consulting with the Escrow Agent and with the SpecialMaster appointed to review claims against the "common benefit" fund andafter considering past and potential charges against the common benefit fundinitially established under Order No.13, has determined that futureassessments to support this fund can be reduced from a rate of 6% to a rateof 4% of recoveries obtained by implant recipients through settlement ortrial, and that, consistent with the provisions of paragraph 3(d) of OrderNo. 13 and of paragraph 28(c) of the Notice of the Revised SettlementProgram, there should be a rebate of one-third of the amount of assessmentscollected at the 6% rate. Accordingly, it is ordered as follows:
- With respect to settlement agreements made, or collection ofjudgments entered, after December 31, 1999, the common benefit assessmentunder Order 13 to be withheld and paid to the Escrow Agent shall be reducedto 4% of the gross monetary recovery.
- With respect to future distributions under the Revised SettlementProgram (or under the Individual Settlement Plan administered by the DukePrivate Adjudication Center) the assessment to be paid by the settlingdefendant(s) to the Escrow Agent under paragraph 28(a) of the RSP Noticeshall continue to be 6% of the amount of such distributions. However, only2/3 of any such assessment shall be paid to the Escrow Agent for the commonbenefit fund, and 1/3 of any such assessment shall be added to the amount ofthe distribution to the claimant.
- With respect to contributions to the common benefit fund assessed onthe basis of 6% of the distributions under the Revised Settlement Program(or under the Individual Settlement Plan administered by the Duke PrivateAdjudication Center) through checks issued before January 1, 2000, or 6% ofthe gross monetary recovery under settlement agreements made (or collectionof judgments entered) before January 1, 2000, the Escrow Agent willdistribute to the implant recipient or her attorney a refund check equal to2% of the RSP/ISP distribution or of the gross monetary recovery.
- Expenses in administering the refund program (e.g., costs ofpreparing and mailing checks) will be charged against the common benefitfund.
- With respect to refunds based on assessments outside the RevisedSettlement Program and outside the Individual Settlement Plan administeredby the Duke Private Adjudication Center (e.g., private settlements with "optout" implant recipients), the refund check should, if the records of theEscrow Agent reflect that the implant recipient was represented at the timeof the assessment by an attorney who is not deceased and who has not beenshown as no longer in good standing as a member of the bar, be made payableto the attorney (as counsel for the implant recipient), with the followingguidance as to disposition of the proceeds of the check.Order No. 13 provided that, for implant-recipients being represented by anattorney under a contingent fee agreement, the assessment was to be chargedagainst, and paid from, the attorney's share of the recovery. The Orderalso provided that one-half of the assessment could, however, be treated as alitigation expense and, depending on the terms of the fee agreement, becharged against the client's share of the recovery. The proper division ofa refund check as between an attorney and a client respecting a recoveryoutside the terms of the Revised Settlement Program and the IndividualSettlement Program will depend on how the original assessment was treated.If the entire assessment was charged against the attorney's share, then theattorney would be entitled to the full amount of the refund check. If halfof the assessment was treated as a litigation expense and charged againstthe client's share, then the proceeds of the refund check should be dividedequally between the attorney and the client. Attorneys are, of course, notprecluded from waiving any claim to the common benefit refund check and fromsending the check, appropriately endorsed, to the client, and this sameaction should be taken if the entire assessment was charged against theclient's share of the recovery.
(c) With respect to refunds based on assessments under the RevisedSettlement Program (or on payments made under the Individual SettlementPlan), the refund check should IF the Claims Office do not show that the claimant is represented by an attorney be made payable to the implant recipient and should be mailed to the lastaddress for such claimant according to records of the Claims Office. Largerrefund checks for an RSP/ISP claimant who is represented by an attorney ingood standing should be made payable jointly to the claimant and theattorney, with the guidelines for attorneys' fees and expenses establishedunder the RSP applying to the division of the proceeds of the check.
(d) The Escrow Agent is authorized to designate an appropriatealternative payee with respect to any check that cannot be negotiated inview of the death or disability of the initial payee or that may be subject toattorney or lien disputes. The Escrow Agent may also require that therefund checks be negotiated within a specified period (e.g., 90 days afterissuance).
(e) No refunds will be due with respect to distributions under theForeign Settlement Program inasmuch as the common benefit assessment forsuch distributions was set at 4%. Nor will there be refunds due with respect todistributions under the Mentor, Bioplasty, and Inamed/CUI/McGhan settlementsinasmuch as, given the small amounts payable to individual implantrecipients, no common benefit contribution was assessed with respect to suchdistributions.
4. The court does not anticipate that, other than as set forth in thisorder, there will be any additional reductions in the common benefitassessment rate or any additional individual refunds or rebates of amountspaid or to be paid into the common benefit fund.
5. A copy of this order shall be docketed and filed in CV92-P-10000-Sand CV 94-P-11558-S. This the 28th day of December, 1999. /s/ Sam C. Pointer, Jr. Judge Sam C. Pointer, Jr.Service List: Plaintiffs Liaison Counsel Defendants Liaison CounselPost on webpage
