Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54398 Filed 01/21/21 Page 1 of 72
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`
`
`In re Flint Water Cases.
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`________________________________/
`
`This Order Relates To:
`
`ALL CASES
`
`
`Judith E. Levy
`United States District Judge
`
`
`
`
`
`________________________________/
`
`OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO
`ESTABLISH SETTLEMENT CLAIMS PROCEDURES AND
`ALLOCATION AND FOR PRELIMINARY APPROVAL OF CLASS
`SETTLEMENT COMPONENTS [1318] AND GRANTING
`PLAINTIFFS’ MOTION FOR AN ORDER ADOPTING THE
`PROPOSED MOTION FOR APPROVAL OF WRONGFUL DEATH
`SETTLEMENT [1334]
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`Before the Court is Plaintiffs’ motion to establish settlement claims
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`procedures and allocation and for preliminary approval of class
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`settlement components (ECF No. 1318) and Individual Plaintiffs’ motion
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`for an order adopting the proposed motion for approval of wrongful death
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`settlement. (ECF No. 1334).
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`Plaintiffs are thousands of children, adults, property owners, and
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`business owners who allege they were exposed to lead, legionella, and
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`other contaminants from the City of Flint’s municipal water supply. The
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`In re Flint Water Cases.
`
`________________________________/
`
`This Order Relates To:
`
`ALL CASES
`
`
`Judith E. Levy
`United States District Judge
`
`
`
`
`
`________________________________/
`
`OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO
`ESTABLISH SETTLEMENT CLAIMS PROCEDURES AND
`ALLOCATION AND FOR PRELIMINARY APPROVAL OF CLASS
`SETTLEMENT COMPONENTS [1318] AND GRANTING
`PLAINTIFFS’ MOTION FOR AN ORDER ADOPTING THE
`PROPOSED MOTION FOR APPROVAL OF WRONGFUL DEATH
`SETTLEMENT [1334]
`
`Before the Court is Plaintiffs’ motion to establish settlement claims
`
`
`
`procedures and allocation and for preliminary approval of class
`
`settlement components (ECF No. 1318) and Individual Plaintiffs’ motion
`
`for an order adopting the proposed motion for approval of wrongful death
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`settlement. (ECF No. 1334).
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`Plaintiffs are thousands of children, adults, property owners, and
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`business owners who allege they were exposed to lead, legionella, and
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`other contaminants from the City of Flint’s municipal water supply. The
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`
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54399 Filed 01/21/21 Page 2 of 72
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`events that resulted in this large-scale municipal water contamination
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`are now known as the Flint Water Crisis. In their lawsuits, both the
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`putative class members and Individual Plaintiffs allege that Defendants
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`caused, prolonged, concealed, ignored, or downplayed the risks of
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`Plaintiffs’ exposure to the City’s water, which injured Plaintiffs and
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`damaged their property and commercial interests.
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`The settlement before the Court is a partial settlement and
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`therefore does not represent the end of the Flint Water Crisis litigation.
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`It would allow recovery of monetary awards for persons (children and
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`adults) exposed to Flint water during a specified exposure period, along
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`with property owners, renters, and business owners. Specifically, the
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`settlement provides the opportunity for monetary awards for every
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`person exposed while a minor child; every adult exposed with a resultant
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`injury; every residential property owner, renter, or person responsible for
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`paying Flint water bills; and certain business owners impacted during
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`the relevant time period.
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`The proposed settlement creates a comprehensive settlement
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`program that will address all individually represented persons and all
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`2
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54400 Filed 01/21/21 Page 3 of 72
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`Minors1 (both represented and unrepresented). It also provides a ‘class
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`action’ resolution for those adults who have not hired their own lawyer.
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`The compensation process and timeline are the same for every person—
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`and the amount of money that a claimant will receive is based on
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`objective factors such as age, exposure to the water, test results, specific
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`identified injuries, property ownership or lease, payment of water bills,
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`and commercial losses. Significantly, the compensation will be the same
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`for similarly situated individuals and entities—regardless of whether
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`they are represented, unrepresented, or are a member of the ‘class.’
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`This motion is Plaintiffs’ first step towards resolving their claims
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`against the “Settling Defendants”: the State of Michigan and its
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`1 “Minor” is defined in the Master Settlement Agreement (the “MSA”) as “any
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`Claimant participating in the Settlement program that will be less than eighteen (18)
`years of age at the time an election is made by a Next Friend from the options on how
`a Monetary Award should be distributed as set forth in Paragraph 21.28 [of the
`MSA].” (ECF No. 1319-1, PageID.40340.) Notably, there are some individuals who
`were legal minors at the time of exposure, but either have already turned eighteen
`before registering (and therefore register as adults), or are legal minors at the time
`of registration, but will turn eighteen before the time that they elect the form by
`which to receive a monetary award. Those persons are no longer “Minors” at the
`election time and, under the MSA, control their own claim. The Court will distinguish
`between “Minors” under the MSA and legal “minors” with appropriate capitalization
`in this Opinion.
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`3
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54401 Filed 01/21/21 Page 4 of 72
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`individual officials;2 the City of Flint, three Emergency Managers, and
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`several City employees;3 the “McLaren Defendants,” which are McLaren
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`Health Care Corporation, McLaren Regional Medical Center, and
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`McLaren Flint Hospital; and Rowe Professional Services Company
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`(“Rowe”). It does not resolve all of the Flint Water Cases, and the first
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`round of bellwether trials against the non-settling Defendants are
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`currently set for June 4, 2021.4
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`2 These are collectively referred to as the “State Defendants” and include: the
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`State of Michigan, the Michigan Department of Environmental Quality (now the
`Michigan Department of Environment, Great Lakes, and Energy), the Michigan
`Department of Health and Human Services, the Michigan Department of Treasury,
`former Governor Richard D. Snyder, current Governor Gretchen Whitmer, the Flint
`Receivership Transition Advisory Board, Liane Shekter Smith, Daniel Wyant,
`Stephen Busch, Kevin Clinton, Patrick Cook, Linda Dykema, Michael Prysby,
`Bradley Wurfel, Eden Wells, Nick Lyon, Dennis Muchmore, Nancy Peeler, Robert
`Scott, Adam Rosenthal, and Andy Dillon.
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`3 These are collectively referred to as the “City Defendants” and include the
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`City of Flint, Darnell Earley, Howard Croft, Michael Glasgow, Gerald Ambrose,
`Edward Kurtz, Michael Brown, Dayne Walling, and Daugherty Johnson.
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`4 The Settling Defendants do not include private engineering firm Defendants
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`Veolia Water North America Operating Services, LLC; Veolia North America, LLC;
`Veolia North America, Inc.; Veolia Environment, S.A.; Lockwood Andrews &
`Newnam, P.C.; Lockwood Andrews & Newnam, Inc.; Leo A. Daly Company; United
`States of America; and United States Environmental Protection Agency and their
`affiliates. Accordingly, even if the proposed settlement receives final approval, the
`litigation against these Defendants continues.
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`4
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54402 Filed 01/21/21 Page 5 of 72
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`The Court’s role at the preliminary approval stage is circumscribed.
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`The Court may not rewrite the settlement but may only reject it or grant
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`it preliminary approval. Generally, a settlement between an adult
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`plaintiff and a defendant does not require court approval. But because
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`this settlement presents a hybrid structure that includes a class
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`component for unrepresented adults—and involves a substantial number
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`of potential claims of Minors—preliminary approval of certain aspects of
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`the proposed settlement is both appropriate and necessary.
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`For the reasons set forth below, the Court grants preliminary
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`approval of this settlement. This approval will trigger a period of time in
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`which minors, adults, property owners/renters, and commercial entities
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`may decide whether to participate in the settlement. If a qualifying
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`person or entity chooses to register as a participant, they may then
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`formally object to aspects of the settlement and set forth any reasons why
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`it should not be afforded final approval. Participants may also proceed
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`with their litigation against the non-settling Defendants and, if summary
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`judgment is sought and denied, be heard in front of a jury.5
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`5 Those who are members of any class have the additional choice to opt out of
`this settlement entirely and proceed with their individual litigation against the
`Settling Defendants.
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`5
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54403 Filed 01/21/21 Page 6 of 72
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`The Court has heard from some Flint residents who have expressed
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`frustration with aspects of this settlement. Though the Court’s role in
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`responding to these concerns is limited, these impacted individuals may
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`join the settlement and still continue in the political process to seek the
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`justice they have told the Court this settlement does not provide. Those
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`affected will have to decide whether the risks of litigation—and there are
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`many—outweigh the benefit of a certain resolution with the Settling
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`Defendants. The Court is sympathetic to the complexity of these
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`decisions. Indeed, there may be no amount of money that would fully
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`recognize the harm the residents of Flint have experienced, including
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`their anxiety, fear, distrust, and anger over the events of last seven years.
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`Litigation has its benefits, but also its limitations, and the preliminary
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`approval of this settlement does not affect or preclude other avenues of
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`redress. This litigation—however it concludes—need not be the final
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`chapter of this remarkable story.
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`To grant preliminary approval, the Court must determine whether
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`the proposed Master Settlement Agreement (the “MSA”) is within the
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`range of possible final approval. Specifically, at this stage, the Court is to
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`review the procedures related to Minors and Legally Incapacitated
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`6
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54404 Filed 01/21/21 Page 7 of 72
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`Individuals6 (“LIIs”) to determine whether they are fair and in the best
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`interests of Minors and LIIs. And also, the Court must determine
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`whether there is a sufficient basis to conditionally certify a settlement
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`class and subclasses as proposed. The Court must determine whether the
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`proposed settlement class and subclasses fall within the range of possible
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`approval, appear to be fair, and are free of obvious deficiencies.
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`Preliminary approval, therefore, is the first step in the multi-stage
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`settlement process. Before final approval can be granted, claimants will
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`have an opportunity to evaluate whether it is in their best interests to
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`join the settlement. They will also have an opportunity to object to the
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`settlement and to opt out of the settlement (or, if they are not a class
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`member, to simply reject the settlement) and proceed to litigate their
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`claims individually.
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`Plaintiffs in three of the Flint Water Cases filed responses to the
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`motion for approval: the Anderson Plaintiffs7 (ECF No. 1338); Plaintiffs
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`6 A Legally Incapacitated or Incompetent Individual means an individual
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`described in Mich. Comp. Laws §700.1105(a).
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`7 The Anderson Plaintiffs, through their counsel, notified the Court at the
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`December 21, 2020 hearing that the issues raised in their response are resolved
`pending submission of an errata sheet. The errata sheet has been submitted, and it
`addresses and resolves the Anderson Plaintiffs’ specific issue. (ECF No. 1394-7,
`PageID.54248.)
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`7
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54405 Filed 01/21/21 Page 8 of 72
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`Gradine Rogers and the Estate of Odie Brown (ECF No. 1340); and the
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`Chapman Plaintiffs. (ECF No. 1341.) These filings will be addressed
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`below.
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`On December 21, 2020, the Court held a hearing on these motions
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`via video teleconference. The Honorable Christopher M. Murray of the
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`Michigan Court of Claims and the Honorable Joseph J. Farah of Genesee
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`County Circuit Court were in attendance. Also in attendance were the
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`Special Master Deborah E. Greenspan and the Court-appointed
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`Guardian Ad Litem Miriam Z. Wolock.
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`For the reasons set forth below, the Court grants Plaintiffs’
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`motions.
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`I. Settlement Negotiations
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`The Flint Water Cases include scores of separate lawsuits pending
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`in the Genesee County Circuit Court and the Michigan Court of Claims,
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`and this Court. The first case—Mays v. Snyder, No. 15-14002 (now
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`consolidated)—was filed on November 13, 2015, and the most recent—
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`Atkins v. City of Flint, No. 20-12005—was filed on July 28, 2020. These
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`cases comprise both putative class action lawsuits and lawsuits brought
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`by thousands of Individual Plaintiffs.
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`8
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54406 Filed 01/21/21 Page 9 of 72
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`In the proposed settlement, the putative class action Plaintiffs and
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`the Individual Plaintiffs have joined together to resolve their claims
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`against the Settling Defendants. If approved and accepted, the proposed
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`settlement would resolve cases against the Settling Defendants in all
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`courts and would further resolve claims of those who have not yet filed a
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`lawsuit. Plaintiffs included a list of cases pending in this Court, the
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`Genesee County Circuit Court, the Michigan Court of Claims, and the
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`U.S. Court of Appeals that would be resolved with respect to the Settling
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`Defendants, should the Plaintiffs who have filed individual cases agree
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`to participate. This list is incorporated into this Order. (Carthan, No. 16-
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`10444, ECF No. 1319-2, PageID.40765–40782 (as amended,8 ECF No.
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`1394-7, PageID.54244–54263).)
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`In January 2018, the Court appointed two mediators pursuant to
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`E.D. Mich. Local Rule 16.4 — former United States Senator Carl Levin
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`and former Wayne County Circuit Court Judge Pamela Harwood — to
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`facilitate settlement discussions. (ECF No. 324, PageID.11687–11693.)
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`In July 2018, under Federal Rule of Civil Procedure 53, the Court
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`8 As discussed regarding the Anderson Plaintiffs, the list was modified by the
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`submission of the errata sheet. (ECF No. 1394-7, PageID.54244–54263.)
`9
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`appointed Deborah E. Greenspan to serve as a Special Master to assist
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`with certain pretrial matters and to manage aspects of the settlement
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`process. (ECF No. 544, PageID.16581–16590.) Also, in September 2019,
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`the Court appointed Subclass Settlement Counsel to represent six
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`subclasses of Plaintiffs in settlement allocation discussions. (ECF No.
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`937, PageID.24430–24433.)
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`Sen. Levin and Ret. Judge Harwood reported to the Court
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`periodically
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`regarding
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`the
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`status of
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`settlement negotiations.
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`Additionally, beginning in September 2018, Special Master Greenspan
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`began collecting data regarding potential claimants across all Flint
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`Water Cases. (ECF No. 519, PageID.15988; ECF No. 563, PageID.17097.)
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`The primary purpose of the data collection was to understand the scope
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`and nature of the claims, to facilitate and inform the parties’ settlement
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`discussions, and to develop a settlement structure. (ECF Nos. 614, 673.)
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`Every forty-five days since December 28, 2018, counsel provided Special
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`Master Greenspan with the Court-ordered data. (ECF No. 673.) Special
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`Master Greenspan has filed three interim reports to the Court regarding
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`the data. (ECF Nos. 772, 949, 1105.) She also collected Time and Expense
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`10
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54408 Filed 01/21/21 Page 11 of 72
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`Common Benefit Data. Data collection is ongoing in light of the proposed
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`settlement. (See ECF No. 1254.)
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`The negotiations on behalf of the Plaintiffs were conducted by Co-
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`Liaison Counsel and Co-Lead Class Counsel appointed by the Court for
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`this purpose, among other responsibilities. The Subclass Settlement
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`Counsel later appointed by the Court participated in negotiations along
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`with Co-Liaison Counsel over how to allocate any settlement funds
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`among the various categories of claimants. These negotiations occurred
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`under the auspices of the Court and the supervision of the Court-
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`appointed Special Master.
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`In August of 2020, Plaintiffs and the State Defendants announced
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`that they had reached an agreement to settle their claims for $600
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`million. In October of 2020, Plaintiffs and the City Defendants
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`preliminarily agreed to a $20,000,000 settlement, which required
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`approval from the Flint City Council on or before December 31, 2020. The
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`Flint City Council voted to join the settlement on December 21, 2020.
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`(ECF No. 1357, PageID.42106.) Plaintiffs and the McLaren Defendants
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`also agreed to settle for $20 million, and Plaintiffs and Rowe agreed to
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`settle for $1.25 million.
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`11
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54409 Filed 01/21/21 Page 12 of 72
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`The Court appointed Miriam Z. Wolock on December 9, 2020 as
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`Guardian Ad Litem, for the purpose of advising the Court on the fairness
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`of the processes and procedures for handling claims under the proposed
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`settlement related to Minors and LIIs. (ECF No. 1339, PageID.41798–
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`41800.) Ms. Wolock provided a comprehensive oral report at the hearing
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`held on December 21, 2020.
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`II. Procedural History
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`The Flint Water Cases have a complex procedural history. The
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`cases fall into several broad categories, as discussed above, in both
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`federal and state court, including putative class action cases, individual
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`cases, and legionella cases. The Court has adjudicated scores of motions
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`to dismiss in these cases and issued hundreds of opinions and orders and
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`is therefore very familiar with the factual allegations and the applicable
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`law that governs these cases. Many of its decisions have been appealed
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`both to the United States Court of Appeals for the Sixth Circuit and to
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`the United States Supreme Court. This Court’s decisions have largely
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`been upheld on appeal.
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`12
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`The Court has also managed extensive discovery in these cases.9
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`Over the years, the Court has conducted conferences to adjudicate
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`discovery disputes at least once per month, sometimes more, since 2019
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`and is very familiar with the development of the factual record in this
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`case. As Plaintiffs have summarized in the present motion, discovery in
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`these cases “has been substantial[,] including millions of pages of
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`document production and review, the exchange of substantive written
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`interrogatories, more than eighty depositions, and extensive expert
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`analysis.” (ECF No. 1318, PageID.40267.)
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`In sum, the Flint Water Cases are abundant, complex, and have
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`been intensely litigated. The motion before the Court and the proposed
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`settlement underlying it applies to all of these cases.
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`III. The Proposed Settlement Agreement
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`The MSA presents a complex, detailed, and orderly proposal for
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`resolution of Plaintiffs’ claims against the Settling Defendants. It creates
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`an administrative compensation process and program that offers
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`settlement opportunities to multiple categories of individuals and
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`9 The most recent case management order (“CMO”), the Fifth Amended Case
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`Management Order, was entered on September 8, 2020. (ECF No. 1255.)
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`entities. It sets forth a procedure for individuals to submit claims and to
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`receive monetary awards if they meet the eligibility criteria. Plaintiffs
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`are not required to prove legal liability or causation, though certain adult
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`claimants may need to present a medical record linking their condition
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`to exposure to lead or other contaminants in the water. They need only
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`submit the prescribed documents and forms to receive an award. The
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`settlement claims process protects against unauthorized persons
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`obtaining money from the settlement by setting forth certain proof
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`requirements.
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`The aggregate settlement amount of $641.25 million will be
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`allocated among categories of claims as set forth in the MSA and will also
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`be used to pay fees and expenses. The settlement distribution process
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`requires that similarly situated claimants receive the same monetary
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`award (subject to lawful liens that might be asserted). In this way, the
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`settlement assures ‘horizontal equity’ among claimants. In light of the
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`two-year negotiation process and strong representation of categories of
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`claims by Co-Liaison Counsel on behalf of Individual Plaintiffs and by
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`Subclass Settlement Counsel on behalf of the subclasses, each of whom
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`have provided declarations supporting the allocation and attesting to its
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`14
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`fairness, the allocation among categories of claims is determined to be
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`fair. The Court will revisit this determination at the final approval stage
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`should there be evidence submitted to challenge the current allocation of
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`settlement funds.
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`The Court will first discuss the provisions related to Minors and
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`LIIs to determine whether the proposed settlement processes and
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`procedures are fair and in their best interests. Next, the Court will
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`determine whether the class and subclass portion of the settlement
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`appears to be fair, be free of obvious deficiencies, and fall within the
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`range of settlements that can be approved. Third, the Court will address
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`the responses, objections, and correspondence received thus far.
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`A. Minors and LIIs
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`At the preliminary approval stage, the Court must review the MSA
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`to determine whether the processes and procedures related to Minors’
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`and LIIs’ claims are fair and in their best interests. As set forth above,
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`Guardian Ad Litem Miriam Z. Wolock assisted in this review. Ms. Wolock
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`provided an oral report to the Court and the parties at the hearing held
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`on December 21, 2020. For the reasons set forth below, the Court
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`15
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`concludes that the processes and procedures set forth in the MSA are fair
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`and in the best interests of Minors and LIIs.
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`The provisions of the MSA applicable to Minors and LIIs are the
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`following: (1) Article XXI of the MSA (ECF No. 1319-1, PageID.40393–
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`40400 (as amended, ECF No. 1394-2, PageID.54185–54192)); (2) the
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`Registration Form (ECF No. 1319-2, PageID.40757–40763 (as amended,
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`ECF No. 1394-3, PageID.54214–54219)); (3) the Claim Form (ECF No.
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`1319-2, PageID.40740–40745
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`(as amended, ECF No. 1394-5,
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`PageID.54231–54235)); (4) the monetary awards and proofs grid (ECF
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`No. 1319-2, PageID.40789–40831); (5) the Case Management Order (ECF
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`No. 1319-2, PageID.40848–40876 (as amended, ECF No. 1394-9,
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`PageID.54286–54294)); (6) Plaintiffs’ Fact Sheet (ECF No. 1319-2,
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`PageID.40878–40897, 40899); (7) the Release by the Next Friend (ECF
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`No. 1319-2, PageID.41223–41227); and (8) the Non-Participation Notice
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`by Minors or LIIs (ECF No. 1319-2, PageID.41246).
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`1. Genesee County Circuit Court Assignment
`Appointment of Next Friends
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`and
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`First, the MSA provides that the parties will file motions to permit
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`the Genesee County Circuit Court, specifically Judge Farah, to exercise
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`16
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`the power and jurisdiction of the probate court for the purposes of: (1)
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`approving the types of individuals who can act as Next Friends on behalf
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`of Minors and LIIs under the MSA; and (2) appointing a Master Guardian
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`Ad Litem (“Master GAL”) and two Panel Guardians Ad Litem (“Panel
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`GAL”) to supervise submissions by Next Friends on behalf of Minors and
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`LIIs. (ECF No. 1319-1, PageID.40393.) This appointment would provide
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`for consistency in state-court rulings on settlement-related matters.
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`Moreover, Judge Farah, as a result of managing the Genesee County
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`Flint Water docket, is familiar with the unique nature of the claims and
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`parties, including those of Minors and LIIs.
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`The MSA provides parameters for those who may be authorized to
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`act as Next Friends on behalf of Minors and LIIs. (Id.) The MSA defines
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`both the qualifications and proofs required for this role. It incorporates
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`Michigan Court Rule 2.201(E), which sets forth the legal parameters
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`applicable to proceedings involving a minor or incompetent person in
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`Michigan, including that the person acting as Next Friend be “competent
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`and responsible.” Mich. Ct. R. 2.201(E)(1)(b).
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`
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`The MSA contains a proposed Registration Form that participants
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`in the settlement, including Minors and LIIs, must complete within sixty
`17
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54415 Filed 01/21/21 Page 18 of 72
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`days of the entry of an order granting preliminary approval.10 (See ECF
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`No. 1319-1, PageID.40348–40353
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`(as amended, ECF No.1394-2,
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`PageID.54140–54145).) Section 3 of the Registration Form, which is
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`applicable only to Minors and LIIs, identifies the person submitting the
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`form on behalf of a Minor or LII, and requires that the individual provide
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`documents proving their relationship to the claimant. (ECF No. 1319-2,
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`PageID.40759–40761.) The information sought in Section 3 of the
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`Registration Form mirrors the requirements set forth in Michigan Court
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`Rule 2.201. Also, the Claim Form contains similar provisions and
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`checkboxes to the Registration Form. (ECF No. 1319-2, PageID.40740–
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`40745 (as amended, ECF No. 1394-3, PageID.54214–54219).)
`
`
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`Ms. Wolock concluded that the Registration Form has a “clear and
`
`understandable application to act as [N]ext [F]riend and defines a group
`
`of individuals who may serve in this capacity,” and it “tracks all the
`
`requirements under Michigan law.” (ECF No. 1363, PageID.42191.)
`
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`10 As set forth further below, this Order will be effective on January 27, 2021,
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`and, because Sunday March 28, 2021 falls on a weekend, the sixty-day deadline is
`Monday March 29, 2021.
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`
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`18
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54416 Filed 01/21/21 Page 19 of 72
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`
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`After the Registration Form is submitted, the MSA provides that
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`the Claims Administrator must review and approve the qualifications of
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`the Next Friend, within a specified time frame. (ECF No. 1319-1,
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`PageID.40395–40396 (as amended, ECF No. 1394-2, PageID.54187–
`
`54188).) If the Next Friend does not meet the qualifications or has not
`
`submitted the appropriate proofs, the MSA sets forth a reconsideration
`
`and appeals process, which ultimately involves the Special Master
`
`issuing a written decision. (ECF No. 1319-1, PageID.40396 (as amended,
`
`ECF No. 1394-2, PageID.54188); ECF No. 1391-1, PageID.40378 (as
`
`amended, ECF No. 1394-2, PageID.54170).) These protections ensure
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`that only authorized individuals may register and submit claims for
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`Minors and LIIs, and minimize the opportunity for fraudulent claims to
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`be submitted.
`
`
`
`The MSA also provides for protections for Minors and LIIs who do
`
`not have a Next Friend. As Ms. Wolock explained,
`
`And why is this important? Because a particular minor or
`claimant might need a [N]ext [F]riend who doesn’t neatly fall
`into the categories [contained in the Registration Form]. The
`upshot is [ ] that no potential claimant is deprived of an
`appropriate representative in the course of this settlement.
`
`
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`19
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54417 Filed 01/21/21 Page 20 of 72
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`(ECF No. 1363, PageID.42192.)
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`
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`This protection for Minors and LIIs who do not have an appropriate
`
`representative also tracks Michigan Court Rule 2.201(E)(1)(b), which
`
`states, “If a minor or incompetent person does not have a conservator to
`
`represent the person as plaintiff, the court shall appoint a competent and
`
`responsible person to appear as next friend on his or her behalf.”
`
`Accordingly, the MSA fairly protects Minors and LIIs who do not
`
`currently have a parent or court-appointed guardian at this time.
`
`
`
`The MSA also covers situations where there is a dispute over who
`
`will act as Next Friend for a Minor or LII. (ECF No. 1319-1,
`
`PageID.40396 (as amended, ECF No. 1394-2, PageID.54188).) If this
`
`occurs, the MSA provides a clear procedure, involving independent
`
`review and assistance by the Master GAL, and, if not resolved by the
`
`Master GAL, by the Special Master. (Id.)
`
`
`
`Ms. Wolock stated at the December 21, 2020 hearing that this
`
`process and the time frames for resolving such disputes constitute “a fair
`
`and efficient dispute resolution process.” (ECF No. 1363, PageID.42192.)
`
`
`
`Once an appropriate Next Friend is appointed for the Minor or LII,
`
`the Genesee County Circuit Court (or this Court) will supervise the Next
`20
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`
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`
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54418 Filed 01/21/21 Page 21 of 72
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`Friend. (ECF No. 1319-1, PageID.40393–40394 (as amended, ECF No.
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`54185–54186).)
`
`
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`The establishment of jurisdiction over probate proceedings with the
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`Genesee County Circuit Court, the procedures for appointing a Next
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`Friend, and the procedures for resolving any Next Friend-related
`
`disputes are all thorough, clear, and designed to promote consistency. As
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`Ms. Wolock explained, the procedures set forth above for Next Friend
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`appointments help facilitate “an appropriate financial recovery. [The
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`plan is] prompt. It’s cost effective. It’s transparent and the administrative
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`steps really help avoid a protracted and lengthy court proceeding. And so
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`on this basis it’s fair and in the best interest of the minors and [LIIs].”
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`(ECF No. 1363, PageID.42193.)
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`2. Retention of Counsel
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`
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`Another provision in the MSA that protects Minors and LIIs relates
`
`to the retention of counsel. Although Minors and LIIs are not required to
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`retain a lawyer to obtain a monetary award under the settlement, the
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`MSA provides that counsel, including Co-Lead Class and Co-Liaison
`
`Counsel, are authorized to assist Minors and LIIs to advise them of their
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`rights and options under the MSA. (ECF No. 1319-1, PageID.40394–
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`
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`21
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54419 Filed 01/21/21 Page 22 of 72
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`40395 (as amended, ECF No. 1394-2, PageID.54186–54187).) These
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`provisions provide an additional option for Minors and LIIs to have a
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`lawyer to assist them in their claim submission and determination of
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`payment distribution.
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`3. Second Stage Approval Process
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`
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`The MSA contains provisions outlining what is called the “Second
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`Stage Approval Process,” which includes added protections for Minors
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`and LIIs. For example, the Claims Administrator must first certify that
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`the Minor or LII is assigned the settlement category that will result in
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`the highest monetary award possible for that individual. (ECF No. 1319-
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`1, PageID.40396 (as amended, ECF No. 1394-2, PageID.54188).) Ms.
`
`Wolock indicated that this step “clearly benefits this population.” (ECF
`
`No. 1363, PageID.42193.)
`
`
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`The possible settlement categories are set forth in a settlement grid,
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`which contains twenty-one categories devoted to individuals who were
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`minors at the point of first exposure.11 While there are different
`
`
`11 Seven of the twenty-one categories are devoted to Minors ages six and
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`younger at the time of their first exposure, seven are devoted to Minors ages seven
`through eleven at the time of their first exposure, and the remaining seven apply to
`Minors ages twelve through seventeen at the time of their first exposure.
`22
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`
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54420 Filed 01/21/21 Page 23 of 72
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`allocations for recovery in each of the twenty-one categories, the grid
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`provides a settlement for all minors, regardless of whether they have any
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`proof of an injury. (ECF No. 1319-2, PageID.40790–40818.) The grid
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`provides for different settlement values based on objective factors such
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`as the age of the child at first exposure, the evidence of lead exposure,
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`and the evidence of cognitive impairment related to lead exposure.
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`
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`As explained by Special Master Greenspan at the hearing, the grid
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`is set up in a manner such that, “People who were similarly situated
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`would be treated in a similar way.” (ECF No. 1363, PageID.42203.) This
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`promotes fairness, particularly in litigation such as this where there are
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`different levels of exposure and severity of injury. And Ms. Wolock
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`succinctly stated,
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`So the process set forth in the settlement grid or the required
`proof grid, I believe, promotes fairness in as much as it creates
`a very systematic approach for remedial relief based on
`objective criteria that are set forth in the grid. And each grid
`is accompanied by particular proofs that are required to be
`submitted. With the result that minors and LIIs with
`comparable claims are intended to receive comparable
`awards. And I believe that this is a fair and consistent
`approach for similarly situated claimants.
`
`(ECF No. 1363, PageID.42195.)
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`23
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1399, PageID.54421 Filed 01/21/21 Page 24 of 72
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