UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:06-CV-363-H
TIMOTHY DICKENS, et al.
ZEON G.P. LLC and ZEON CHEMICALS
PARTNERSHIP d/b/a ZEON CHEMICALS, L.P.
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MEMORANDUM IN OPPOSITION TO PRELIMINARY APPROVAL OF THIRD AMENDED CLASS ACTION SETTLEMENT
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At the conclusion of the April 21, 2011 telephonic conference, the Court left open the opportunity for Ms. Cochran, Intervenor in the above-captioned action, to file a memorandum in opposition to the preliminary approval of the Third Amended Class Action Settlement.
In the May 3, 2011 Memorandum and Order, the Court noted that Ms. Cochran?s concerns with the nominal nature of the settlement, and acknowledged that the proposed settlement involved individually nominal amounts, noting further that the settlements sufficiency can be raised at the fairness hearing.
Ms. Cochran appreciates that an opportunity to address the scope of the rights released, and the sufficiency (or insufficiency) of the nominal payments relative to the rights surrendered, can be raised at that juncture, and will not reargue those areas of concern identified in the Motion to Intervene and discussed during the April 29 telephonic conference.
Ms. Cochran would, however, ask that this Court consider whether that Section of the Third Amended Settlement Agreement captioned Injunctive Relief be removed from the proposed Settlement Agreement in its entirety, or be modified to conform to the more limited language in the Section captioned Releases. Ms. Cochran believes that, even at this preliminary stage, the scope of the proposed Injunctive Relief is on its face unfair, unjust and unreasonable in the protection it affords Zeon regarding emissions, odors and releases during the first five (5) years following approval of the Settlement Agreement.
The scope of the rights surrendered under Numerical Paragraphs 20 and Releases, while believed by Ms. Cochran to be excessive in relation to the nominal nature of the compensation, are at least bounded in some manner. While Ms. Cocharn believes the boundaries to be inadequate, for the purpose of this memorandum they are summarized below in order to highlight the unbounded nature of the proposed injunction.
In Numerical Paragraph 20(a), all types of claims that a class member ever had, now has, or hereafter can
have are released and forever discharged, with the boundary that claims for personal injury that could not have been asserted at the time of settlement are preserved.
In Numerical Paragraph 20(b), it is proposed that the nominal settlement amounts compensate the Class Members for any past, present, or future claims for nuisance, trespass, negligence, strict liability, health effects, personal or bodily injuries arising from emissions, odors or releases, and for any past- present, or future property damages including punitive damages, provided that the level of emissions, releases or odors emanating from the Facility dont exceed the highest annual rate or highest rate at any time during the five (5) preceding years. Again, while Ms. Cochran believes that the scope of the release is overbroad and would allow Zeon to emit up to rates that occurred during malfunctions and upsets, there is at least some upper-bound limit proposed on emissions, odors and releases beyond which Zeon is not immunized from accountability.
In Numerical Paragraph 20(c), the settlement proposes that if Zeon engages in substantially different manufacturing processes which result in substantially different or greater emissions, releases or odors than current or historical operations that the release is inapplicable. Likewise, in the event of a catastrophic release from the facility, the release would not protect the facility from liability.
In sum, while Ms. Cochran believes that what is released is excessive (particularly with respect to future actions of the facility) and disproportionate to what meager compensation is provided to those who successfully file claims, there do exist some upper-limit boundaries to the broad sweep of the releases.
In stark contrast, the scope of Injunctive Relief grants Zeon, for a five (5) year period following final approval of the Third Amended Class Action Settlement Agreement, the right to emit air emissions, odors and releases at any volume or rate without liability. The only manner in which Zeons liability is bounded is with respect to limitations paralleling those in Numerical Paragraph 20(c), i.e., substantially different manufacturing processes involving substantially different or greater emissions, and catastrophic releases.
If one accepts, as has been suggested, that the limits imposed under Numerical Paragraph 20(b)(i), (ii) and (iii) are not unreasonable because they cap the emissions at values that have been emitted without apparent personal injury or property damage, then the absence of corresponding caps in Numerical Paragraph 21(a) is facially unreasonable for failure to limit the emissions, odors and releases during the five years for with the proposed Injunction would remain in effect, in the same manner and at the same uppewr-bound levels that limit the companys protection from liability under Numerical Paragraph 20.
CONCLUSION AND PRAYER FOR RELIEF
For the reasons stated herein, Ms. Cochran respectfully requests that this Court require the parties to modify Numerical Paragraph 21 of the Third Amended Class Action Settlement to impose such a an upper-limit range of protection limit, or to remove Numerical Paragraph 21 in its entirety, inasmuch as proposed Injunctive Relief is unnecessary in light of the Releases in Numerical Paragraph 20, and for any and all other relief to which she may appear entitled.
Thomas J. FitzGerald
Kentucky Resources Council, Inc.
P.O. Box 1070
213 St. Clair Street Suite 200
Frankfort, Kentucky 40602-1070
(502) 875-2845 fax
Counsel for Eboni Neal Cochran
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