Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69537 Filed 11/10/21 Page 1 of 178
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`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 FINAL APPROVAL OF A
`PARTIAL SETTLEMENT, GRANTING CERTIFICATION OF A
`SETTLEMENT CLASS, GRANTING APPOINTMENT OF
`SETTLEMENT CLASS COUNSEL [1794], DENYING
`OBJECTIONS, AND ADOPTING THE REPORT AND
`RECOMMENDATION [2006]
`
`Before the Court is a motion for final approval of a partial
`
`
`
`settlement that provides compensation to tens of thousands of people who
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`were impacted by exposure to lead, legionella, and other contaminants
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`from the City of Flint’s municipal water supply system during the events
`
`now known as the Flint Water Crisis. The settlement resolves thousands
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`of claims pending in this Court, the Genesee County Circuit Court, and
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`the State of Michigan Court of Claims. The settlement involves both class
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`action and non-class action lawsuits. The portion of the $626.25 million
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69538 Filed 11/10/21 Page 2 of 178
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`settlement to be paid by the State of Michigan is one of the largest
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`settlements in the State’s history.1
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`
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`The settlement reached here is a remarkable achievement for many
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`reasons, not the least of which is that it sets forth a comprehensive
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`compensation program and timeline that is consistent for every
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`qualifying participant, regardless of whether they are members of a class
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`or are non-class individuals represented by their own counsel. For the
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`reasons set forth below, the objections to the settlement are denied, and
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`final approval of the settlement is granted. Plaintiffs’ motion for attorney
`
`fees will be addressed in a separate opinion and order.
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`
`
`
`
`
`1 See, e.g., Michigan S. Fiscal Agency, FY 2018-19 Status of Lawsuits Involving
`
`the State of Michigan, 4 (July 2020),
`https://www.senate.michigan.gov/sfa/publications/lawsuit/lawsuit_mostrecent.pdf
`[https://perma.cc/W3ZQ-X7RK] (showing, at Table 3, that the maximum settlement
`amount for all combined lawsuits against the State over a ten-year period did not
`exceed $76,308,820).
`
`
`
`2
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69539 Filed 11/10/21 Page 3 of 178
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`Table of Contents
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`I. BACKGROUND ................................................................................... 6
`A. The Negotiation Process ............................................................... 10
`B. The Amended Settlement Agreement (“ASA”) ............................. 16
`C. Registration Forms and Objections Received by the March 29,
`2021 Deadline ....................................................................................... 27
`D. Fairness Hearing .......................................................................... 32
`E. Other Matters Post-Fairness Hearing ......................................... 36
`II.
`LEGAL STANDARD ..................................................................... 37
`III. DISCUSSION ............................................................................... 44
`A. Non-Class Portion of the Settlement ........................................... 44
`B. Class Plaintiffs’ Portion of the Settlement ................................... 59
`1.
`Likelihood of Success on the Merits .......................................... 60
`2. Class Representatives and Class Counsel Representation ...... 64
`3. Arm’s Length Negotiations and No Evidence of Collusion or
`Fraud .................................................................................................. 65
`4. Adequate Relief ......................................................................... 66
`5. Whether Class Members Are Treated Equitably Relative to
`Each Other ......................................................................................... 70
`6.
`The Amount of Discovery Conducted ........................................ 72
`7. Opinions of Class Counsel and Class Representatives and
`Reaction of Absent Class Members ................................................... 73
`8.
`Public Interest ........................................................................... 76
`9.
`Incentive Awards ....................................................................... 76
`C. Notice to the Class and Due Process ............................................ 78
`D. Certification of the Settlement Class ........................................... 81
`E. Appointment of Co-Lead Class Counsel and the Executive
`Committee as Class Counsel for Settlement Purposes ....................... 95
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`F. Report and Recommendation on Late Registrants ...................... 96
`IV. OBJECTIONS ............................................................................... 96
`A. Objections Based On Compensation Grid .................................... 98
`1. Objections Related to Bone Lead Level Testing ....................... 98
`a. Objections to the Use of the Thermo Fisher Manufactured
`Hand-Held XRF Device on Humans .......................................... 101
`b. Objections Regarding The Napoli Program’s Regulatory
`Compliance and Legality ............................................................ 119
`c. Objections to XRF Bone Lead Level Testing Because It Has
`No Medical Purpose .................................................................... 124
`d. Objections Arguing that the Napoli Program Constitutes an
`Undisclosed Research Project ..................................................... 127
`e. Objections Claiming that Bone Lead Level Testing is the
`“Main Method” of Recovery Under the ASA .............................. 130
`f. Objections Asserting That Bone Lead Level Testing At Mt.
`Sinai and Purdue University Were Unavailable to Objectors ... 133
`g. Objections Related to the Unavailability for Non-Client Bone
`Lead Level Test Appointments with the Napoli Program ......... 138
`h. Objections Related to the Napoli Program’s Requirement that
`Participants Sign a Liability Release ......................................... 143
`i. Objections Related to the $500 Cost of a Bone Lead Level Test
`with the Napoli Program ............................................................ 145
`j. Arguments Related to Bone Lead Level Testing Submitted
`After the March 29, 2021 Deadline for Filing Objections .......... 146
`2. Objection Related to Blood Lead Level Test Results .............. 148
`3. Objections to Cognitive Deficit Testing Settlement Category
`Requirements ................................................................................... 149
`4. Objection Related to the Miscarriages and Fetal Blood Lead
`Level Test Results Settlement Category ......................................... 154
`5. Objections to the Compensation Grid’s Requirements of Proof of
`Galvanized Steel Service Lines ....................................................... 155
`4
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`6. Objections Related to the Compensation Grid’s Failure to
`Include Additional or Different Categories ..................................... 158
`7. Objections Related to the Overall Allocation of Funds for
`Minors Versus Adults ...................................................................... 160
`8. Objections Related to the $1,000 “Cap” in the Compensation
`Grid for Property Owners and Renters ........................................... 162
`9. Objections Arguing that the Overall Settlement is Unfair,
`Unreasonable, and Inadequate to Homeowners ............................. 163
`B. Objections Related to the ASA’s Requirements for Registration
`and Objections .................................................................................... 165
`1. Arguments that Registration Deadline Was Too Short ......... 165
`2. Objection to Providing the Claims Administrator With PII for
`Registration Purposes ...................................................................... 166
`3. Objection Arguing that, at the Time of Registration,
`Participants Did Not Know the Final Amount of their Monetary
`Award ............................................................................................... 167
`4. Objections that Individual and Class Counsel Who Are Listed
`in Exhibit 17 of the ASA Did Not Represent Individual Objectors At
`the Fairness Hearing ....................................................................... 169
`5. Objections related to Using Zoom to Communicate With their
`Attorneys .......................................................................................... 171
`C. Objections Related to COVID-19 ................................................ 172
`D. Objections to the Notice’s Content ............................................. 173
`E. Objections to Class Representative Payment ............................ 174
`V.
`CONCLUSION ........................................................................... 175
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`5
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`I.
`
` BACKGROUND
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`
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`Plaintiffs are tens of thousands of Minors,2 Adults, individuals and
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`entities who owned or leased residential property, and individuals and
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`entities who owned or operated a business, all of whom allege that they
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`suffered losses and damages resulting from Defendants’ roles in the Flint
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`Water Crisis. The Defendants participating in the settlement (the
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`“Settling Defendants”) are not all of the Defendants involved in the Flint
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`Water litigation, and accordingly, this settlement is only a partial
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`settlement of the Flint Water cases.3
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`
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`The Settling Defendants include: the State of Michigan and its
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`individual officials, which are collectively referred to as the “State
`
`
`2 Unless otherwise defined, capitalized terms in this Opinion and Order, such
`
`as “Minor,” have the same meaning as defined in the Amended Settlement
`Agreement. For reference, Minor is defined in the Amended Settlement Agreement
`as “any 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 Amended Settlement Agreement].” (ECF No. 1394-2, PageID.54132.)
`
`3 The remaining non-settling Defendants are engineering firms that provided
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`services to the City during the Flint Water Crisis. Plaintiffs and these remaining
`Defendants continue to actively litigate, and the first bellwether trial is scheduled to
`begin in February 2022.
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`
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`6
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69543 Filed 11/10/21 Page 7 of 178
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`Defendants”;4 the City of Flint, its City Emergency Managers, and
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`several City employees, collectively referred to as the City Defendants;5
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`McLaren Health Care Corporation, McLaren Regional Medical Center,
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`and McLaren Flint Hospital, collectively referred to as the McLaren
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`Defendants; and Rowe Professional Services Company, referred to as
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`Rowe.
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`
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`The settlement reached between Plaintiffs and the Settling
`
`Defendants is in a document entitled the Amended Settlement
`
`Agreement (“ASA”). (ECF No. 1394-2.) The Court discussed the facts
`
`leading up to and resulting in the settlement in its January 21, 2021
`
`Opinion and Order Granting Plaintiffs’ Motion to Establish Settlement
`
`Claims Procedures and Allocation and for Preliminary Approval of Class
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`Settlement Components. See In re Flint Water Cases, 499 F. Supp. 3d 399
`
`
`4 The State Defendants are: the State of Michigan, Michigan Department of
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`Environmental Quality (now known as Michigan Department of Environment, Great
`Lakes, and Energy), Michigan Department of Health and Human Services, Michigan
`Department of Treasury, former Governor Richard D. Snyder, Governor Gretchen
`Whitmer, the Flint Receivership Transition Advisory Board, Lianne Shekter Smith,
`Daniel Wyant, Stephen Busch, Patrick Cook, Michael Prysby, Bradley Wurfel, Eden
`Wells, Nick Lyon, Nancy Peeler, Robert Scott, Adam Rosenthal, Dennis Muchmore,
`Kevin Clinton, Linda Dykema, and Andy Dillon.
`
`5 The City Defendants are: The City of Flint, Howard Croft, Michael Glasgow,
`
`Dayne Walling, Daugherty Johnson, Gerald Ambrose, Edward Kurtz, Darnell Earley,
`and Michael Brown.
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`7
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`(E.D. Mich. 2021) (the “Preliminary Approval Order”). The relevant facts
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`from that Order are as follows:
`
`In January 2018, the Court appointed two mediators
`pursuant to E.D. Mich. Local Rule 16.4 – former United States
`Senator Carl Levin and former Wayne County Circuit Court
`Judge Pamela Harwood – to facilitate settlement discussions.
`(ECF No. 324, PageID.11687–11693.) In July 2018, under
`Federal Rule of Civil Procedure 53, the Court appointed
`Deborah E. Greenspan to serve as a Special Master to assist
`with certain pretrial matters and to manage aspects of the
`settlement process. (ECF No. 544, PageID.16581–16590.)
`Also, in September 2019, the Court appointed Subclass
`Settlement Counsel to represent six subclasses of Plaintiffs in
`settlement
`allocation
`discussions.
`(ECF No.
`937,
`PageID.24430–24433.)
`
`Sen. Levin and Ret. Judge Harwood reported to the Court
`periodically regarding the status of settlement negotiations.
`Additionally, beginning in September 2018, Special Master
`Greenspan began collecting data regarding potential
`claimants across all Flint Water Cases. (ECF No. 519,
`PageID.15988; ECF No. 563, PageID.17097.) The primary
`purpose of the data collection was to understand the scope and
`nature of the claims, to facilitate and inform the parties’
`settlement discussions, and to develop a settlement structure.
`(ECF Nos. 614, 673.) Every forty-five days since December 28,
`2018, counsel provided Special Master Greenspan with the
`Court-ordered data.
`(ECF No. 673.) Special Master
`Greenspan has filed three interim reports to the Court
`regarding the data. (ECF Nos. 772, 949, 1105.) She also
`collected Time and Expense Common Benefit Data. Data
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`collection is ongoing in light of the proposed settlement. (See
`ECF No. 1254.)
`
`The negotiations on behalf of the Plaintiffs were conducted by
`Co-Liaison Counsel and Co-Lead Class Counsel appointed by
`the Court for this purpose, among other responsibilities. The
`Subclass Settlement Counsel later appointed by the Court
`participated in negotiations along with Co-Liaison Counsel
`over how to allocate any settlement funds among the various
`categories of claimants. These negotiations occurred under
`the auspices of the Court and the supervision of the Court-
`appointed Special Master.
`
`In August of 2020, Plaintiffs and the State Defendants
`announced that they had reached an agreement to settle their
`claims for $600 million. In October of 2020, Plaintiffs and the
`City Defendants preliminarily agreed to a $20,000,000
`settlement, which required approval from the Flint City
`Council on or before December 31, 2020. The Flint City
`Council voted to join the settlement on December 21, 2020.
`(ECF No. 1357, PageID.42106.) Plaintiffs and the McLaren
`Defendants also agreed to settle for $20 million, and Plaintiffs
`and Rowe agreed to settle for $1.25 million.
`
`Id. at 411. Additional facts regarding the settlement are set forth below.
`
`These include details on the negotiation process, the terms of the ASA,
`
`the period after the Preliminary Approval Order was entered, the three-
`
`day final fairness hearing that began on July 12, 2021, and the
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`registration and objections period.
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`A. The Negotiation Process
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`
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`Sen. Levin and Ret. Judge Harwood indicate in a declaration filed
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`through Special Master Greenspan on July 11, 2021 that they devoted
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`over 2,000 hours to mediating this case. (ECF No. 1885, PageID.66211–
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`66213.) They conducted numerous telephonic and in-person meetings
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`that were attended by up to fifty lawyers and client representatives.6 (Id.)
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`Both Sen. Levin and Ret. Judge Harwood attest that the aggregate
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`settlement amounts were achieved “through lengthy arms-length
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`negotiations in which, in our view as mediators, the plaintiffs obtained
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`the maximum amount of compensation that the settling defendants were
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`able and willing to offer.” (Id. at PageID.66212.) The declaration
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`concludes with Sen. Levin and Ret. Judge Harwood stating that “we
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`support the settlement amount pending before the Court. We believe it is
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`the product of informed, arms’ length negotiations by the parties,
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`represented by experienced and competent counsel, with due recognition
`
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`6 Sen. Levin, who was the longest-serving United States Senator in the State
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`of Michigan, died on July 29, 2021. His contribution to this case and to the settlement
`cannot be overstated. A footnote in a judicial opinion hardly seems enough to
`acknowledge and honor the loss of someone who made such a meaningful contribution
`to our country, our state, and to the resolution of this case. May he rest in peace.
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`of the complexity of the facts and legal issues in this litigation.” (Id. at
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`PageID.66212–66213.)
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`At the final approval and fairness hearing in July 2021, Special
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`Master Greenspan provided an oral report to the Court detailing her
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`involvement in over two years of vigorous settlement negotiations. (See
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`ECF No. 1904, PageID.66658–66669.) She indicated that the mediators
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`became involved in the negotiations in January 2018 and that the parties
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`identified the types of claims and issues that they considered essential
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`requirements for an eventual settlement. (Id. at PageID.66659.) This
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`aspect of the negotiations lasted several months. It was not until October
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`2018 that the parties were ready to begin developing the structural
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`elements of the settlement with the assistance of the Special Master. (Id.)
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`This part of the negotiation process took more than two years. (Id.)
`
`According to the Special Master, “the two-year period was not the result
`
`of taking a lot of breaks in the negotiation process. It was that hard. The
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`negotiation was that complicated. There are many, many issues that had
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`to be resolved.” (Id.)
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`During her oral report at the hearing, Special Master Greenspan
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`described thousands of hours, communications, meetings, drafts,
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`proposals, counterproposals, and compromises that all of the parties
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`made throughout the entire negotiation process. (Id. at PageID.66659–
`
`66660.) She indicated that over fifty lawyers participated in the
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`settlement discussions, and that the parties had “widely different views
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`about a multitude of issues.” (Id. at PageID.66660.) The Special Master
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`stated that by April 2019, Plaintiffs and the State Defendants agreed to
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`some basic settlement principles, but even then, both sides still had many
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`more
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`issues to resolve before reaching an agreement. (Id. at
`
`PageID.66662.)
`
`The Special Master reported that after the basic elements of the
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`agreement were identified, the parties began negotiations on what would
`
`become Exhibit 8 to the ASA, which is entitled the “Flint Water Cases
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`(FWC) Qualified Settlement Fund Categories, Monetary Awards, and
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`Required Proofs Grid (11/11/20)” (the “Compensation Grid”). (Id. (see also
`
`ECF No. 1319-2, PageID.40789).) The Special Master described the
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`Compensation Grid negotiations as “very lengthy, very arduous, [and]
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`very substantive.” (Id. at PageID.66665.) For example, in late 2019, there
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`were six subclass counsel negotiating the allocation and distribution of
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`funds on the class side of the settlement. (Id. at PageID.66663.) The
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`subclass allocation negotiations continued into 2020. (Id.)
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`The settlement was announced to the public in August 2020, and,
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`at that stage, the Compensation Grid was still not completely finalized.
`
`(Id.) The parties continued negotiating aspects of the Compensation Grid
`
`and other details between August and November 17, 2020, when the
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`motion for preliminary approval was filed. (Id.) During those months,
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`three additional Defendants (the City Defendants, the McLaren
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`Defendants, and Rowe) joined the settlement.
`
`Special Master Greenspan emphasized in her report that the
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`settlement negotiations and ultimate agreement were “not dictated by
`
`any one party. This was not the product of one side or another
`
`determining what they thought would be the best settlement. This
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`reflects a compromise. It reflects dedication to the process. It reflects
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`extensive research and analysis and discussion. It reflects engagement of
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`the parties.” (Id. at PageID.66666.) She summed up the negotiations as
`
`follows:
`
`This may be one of the longest and most complicated
`settlement negotiations I’ve ever been involved in. It has been
`– and for several, several reasons including just the nature of
`the claims here and the nature of the parties involved. But I
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69550 Filed 11/10/21 Page 14 of 178
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`think that the process was one that reflects exactly what you
`want to have in a settlement negotiation. It was arm’s length.
`It was hard fought. And everyone made appropriate
`compromises in order to achieve what everyone believed was
`a correct, reasonable, and fair goal.
`
`(Id. at PageID.66668.)
`
`
`
`The Special Master also discussed the active role the State of
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`Michigan played in the negotiations, which was echoed by Margaret
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`Bettenhausen, counsel for the State Defendants, at the final fairness
`
`hearing. (ECF No. 1904, PageID.66543.) Bettenhausen stated that when
`
`negotiating settlements in large and complex litigation such as this,
`
`typically the Defendants’ sole focus is on how much money they will pay;
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`the Defendants often believe that after that amount is determined, their
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`role ends. But in this case, the State Defendants “negotiated with
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`literally dozens of different plaintiffs’ attorneys for well over a year and
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`many all day and late night face-to-face meetings . . . involve[ing]
`
`hundreds of hours and thousands of written, verbal follow-up . . .
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`communications.” (Id. at PageID.66544–66545.) Bettenhausen also noted
`
`that the State Defendants’ “goal and interest in this settlement has never
`
`been just to pay money and walk away from the City of Flint. Very much
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`the opposite.” (Id. at PageID.66545.)
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`These sentiments are echoed by the sworn statements of appointed
`
`interim subclass settlement counsel. For example, Larry E. Coben,
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`Interim Subclass Settlement Counsel for the Children’s Injury Subclass,
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`was appointed by the Court in August 2019 to negotiate on behalf of
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`Minors. (ECF No. 929.) Coben, through Co-Lead Class Counsel,
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`submitted a declaration in support of final approval of the settlement
`
`indicating that the negotiations he engaged in “with respect to how an
`
`aggregate settlement amount paid by the Settling Defendants would be
`
`allocated” were conducted at arm’s
`
`length.
`
`(ECF No. 1319-5,
`
`PageID.41253–41254.) He states that in his independent determination,
`
`the ASA is “fair and in the best interests of the minors participating in
`
`the settlement.” (Id. at PageID.41254.) Reed Colfax, Interim Subclass
`
`Settlement Counsel for Older Children’s Injury (ages 7-17) Subclass,
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`concurs. (ECF No. 1319-6.) As does Seth R. Lesser, Interim Subclass
`
`Settlement Counsel for a Future Manifesting Injury Subclass (ECF No.
`
`1319-7), Sarah R. London, Interim Subclass Settlement Counsel for a
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`Property Damage Subclass (ECF No. 1319-8), Dennis C. Reich, Interim
`
`Subclass Settlement Counsel for a Business Economic Loss Subclass
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`(ECF No. 1319-9), and Vincent J. Ward, Interim Subclass Settlement
`
`
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`Counsel for an Adult Injury Subclass. (ECF No. 1319-10.) These
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`individuals, representing separate subclass interests, all attest that the
`
`negotiations regarding the aggregate settlement amount and its
`
`allocation between the various proposed subclasses were vigorous, were
`
`conducted at arm’s length, and achieved a fair result. (See ECF Nos.
`
`1319-5, 1319-6, 1319-7, 1319-8, 1319-9, and 1319-10.)
`
`B. The Amended Settlement Agreement (“ASA”)
`
`
`
`The ASA contains provisions that apply to Minors, Legally
`
`Incapacitated Individuals (“LIIs”), Future Minor Claimants, Adults,
`
`property owners and renters, and business owners and operators. (ECF
`
`No. 1394-2.) In addition, the ASA addresses funding for Programmatic
`
`Relief, which will provide special education services for qualifying
`
`individuals.7 (Id. at PageID.54149–54150.) The basic components of the
`
`ASA, as well as the processes and procedures that ensure multiple layers
`
`of oversight and integrity in the decisions made under the ASA, are
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`discussed below.
`
`
`7 In its Preliminary Approval Order, the Court discussed in detail the ASA’s
`
`terms and the provisions that apply to Minors, LIIs, and Future Minor Claimants, as
`well as the provisions that relate to Programmatic Relief. See Preliminary Approval
`Order, 499 F. Supp. 3d at 412–19.
`
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`
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`The ASA provides that the Settling Defendants are to deposit their
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`agreed-upon Settlement Amounts in the established FWC Qualified
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`Settlement Fund. (Id. at PageID.54138–54140.) The State Defendants
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`are obligated to pay $600,000,000; the Flint Defendants are obligated to
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`pay $20,000,000; the McLaren Defendants are obligated to pay
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`$5,000,000;8 and Rowe
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`is obligated to pay $1,250,000. (Id. at
`
`PageID.40338.)
`
`
`
`The ASA appoints Archer Systems, LLC as the Claims
`
`Administrator. The Claims Administrator has many important roles,
`
`which include: (1) reviewing registration and claims submissions in a
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`timely and accurate fashion; (2) setting up a secure database with
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`claimant information; (3) coordinating and communicating with the
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`parties; (4) providing monthly reports to counsel; and (5) establishing
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`evidentiary review procedures to prevent fraud. (Id. at PageID.54160.)
`
`The Court oversees and retains
`
`jurisdiction over the Claims
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`Administrator and may request reports or other information from the
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`Claims Administrator at any time. (Id. at PageID.54163.)
`
`
`8 The McLaren Defendants’ payment obligations are discussed further below.
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69554 Filed 11/10/21 Page 18 of 178
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`The Special Master oversees various aspects of the settlement
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`pursuant to the ASA. Her duties include: (1) consulting with the Claims
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`Administrator and making decisions regarding registration and
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`participation; (2) considering and deciding, in a timely fashion, any
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`appeals taken by participants (which is discussed further below); and (3)
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`handling any disputes that arise
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`involving the ASA.
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`(Id. at
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`PageID.54163–54174.)
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`In addition, the ASA provides for a Settlement Planning
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`Administrator (“SPA”). (Id. at PageID.54164–54165.) The SPA’s role
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`relates only to claims made by Minors. (Id.) The SPA is charged with
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`ensuring the efficient and timely funding of Special Needs Trusts and
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`Settlement Preservation Trusts
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`and
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`providing
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`appropriate
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`documentation of Structured Settlements. (Id.) The SPA is overseen and
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`supervised by both the Master Guardian Ad Litem (“Master GAL”)
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`Miriam Wolock and the Special Master. (Id.) Accordingly, there are
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`multiple levels of protection over the settlement funds and its
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`administrators.
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`The ASA establishes a registration process. It requires all members
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`of the Settlement Class and all Individual Plaintiffs who wish to
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69555 Filed 11/10/21 Page 19 of 178
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`participate in the settlement to submit a Registration Form to the Claims
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`Administrator no later than March 29, 2021. See Preliminary Approval
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`Order, 499 F. Supp. 3d at 433 (indicating the deadline for registration).
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`The ASA specifies a process and procedure for the Claims Administrator
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`to follow after the registration period closes. The Claims Administrator
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`must review the information and proofs provided on the Registration
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`Forms and must consult with the Special Master on any discretionary
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`decisions that need to be made during the review.9 (ECF No. 1394-2,
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`PageID.54150–54151.) The ASA also allows individuals who failed to
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`submit all required information upon their initial registration to re-
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`submit their materials. (Id. at PageID.54142.) Therefore, no one is
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`excluded from participating in the settlement merely because they
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`initially submit an incomplete or incorrect Registration Form.
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`The ASA provides that after the Claims Administrator has
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`reviewed the Registration Forms, the Claims Administrator will post a
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`9 Although the ASA states that the Claims Administrator must review every
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`Registration Form within fourteen days of receipt (ECF No. 1394-2, PageID.54142),
`in practice, this process was much more complicated. The Special Master addressed
`this in a report regarding the status of registrations as of May 27, 2021 (ECF No.
`1790, PageID.64246–64250) and again on October 27, 2021. (ECF No. 2005,
`PageID.68708–68717.)
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69556 Filed 11/10/21 Page 20 of 178
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`list of “all persons and entities who have registered and been found
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`eligible to participate as a Claimant in the Settlement Program.” (Id.)
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`The posting of this list triggers two events: first, it triggers the start of
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`the Claims Process, and second, it triggers the Settling Defendants’
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`Walk-Away Rights under the ASA. (Id.)
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`As to the Claims Process, eligible participants on the Claims
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`Administrator’s list are required to submit their Claim Materials to the
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`Claims Administrator within a specified time.10 (Id. at PageID.54141–
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`54142.) The Claims Materials include the documents listed on the Claim
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`Form (see ECF No. 1319-2, PageID.40740–40745), a fully executed
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`Release (see id. at PageID.40784–40787, 41223–41227, 41248), and the
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`applicable Lien Disclosure Form (see id. at PageID.40844–40846). (ECF
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`No. 1394-2, PageID.54142–54143.) Claimants who deliver proper,
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`complete, and fully executed Claim Materials by the deadline are eligible
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`to receive a Monetary Award, as discussed further below. (Id.)
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`Regarding the Walk-Away Rights triggered by the Claims
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`Administrator’s posting of the eligible registrant list, each Settling
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`10 Due to the delays reported by the Special Master, the deadline for submitting
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`Claims Materials to the Claims Administrator set forth in the Preliminary Approval
`Order is inoperative.
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`Case 5:16-cv-10444-JEL-EAS ECF No. 2008, PageID.69557 Filed 11/10/21 Page 21 of 178
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`Defendant has the right to “walk away” from the ASA in its sole
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`discretion, but only for the reasons specified in the ASA, as applicable to
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`each Settling Defendant.
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`(Id. at PageID.54181–54182.) Settling
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`Defendants have thirty days after the receipt of the final registrant list
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`to exercise their right to walk away from the ASA. (Id. at PageID.54182.)
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`Once the Claims Process begins, the Claims Administrator’s focus
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`shifts to determining Monetary Awards. (Id. at PageID.54143–54149.)
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`On the Claim Form, a Claimant may select the Settlement Category that
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`they believe is applicable. (Id. at PageID.54143.) The FWC Qualified
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`Settlement Fund is divided into six Sub-Qualified Settlement Funds
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`which are:
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` Minors six years old or younger on the date the individual was first
`exposed to Flint Water;
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` Min