IN THE CHANCERY COURT FOR OBION COUNTY, TENNESSEE
AT UNION CITY, TENNESSEE
________________________
TINA COX, et al.,
Plaintiffs,
vs.
SHELL OIL COMPANY, et ano.
Defendants.
Civil Action 18,844
NOTICE OF CLASS ACTION AND SETTLEMENT
TO ALL OWNERS OF HOUSES, MOBILE HOMES AND OTHER STRUCTURES WITH POLYBUTYLENE PLUMBING WHO PURCHASED THAT STRUCTURE AFTER AUGUST 21, 1995
THIS NOTICE MAY AFFECT YOUR RIGHTS
PLEASE READ IT CAREFULLY
THIS NOTICE ANSWERS THESE
IMPORTANT QUESTIONS
Your rights may be affected by the proceedings in the lawsuit known as Cox, et al. v. Shell Oil Company, et ano., Civil Action No. 18,844 (the "Lawsuit") in the Chancery Court for Obion County, at Union City, Tennessee (the "Court"). This notice is given pursuant to Rule 23 of the Tennessee Rules of Civil Procedure and the order of the Court.
The purpose of this Notice is to inform you that the Court certified a plaintiff class and approved a settlement (the "Settlement") of the Lawsuit on November 17, 1995. The class, more completely described below, includes all owners and past owners of structures (including houses, commercial properties, and mobile homes) and other improvements to real property with a certain type of plumbing. (See Section 4, "Who is in the Class?", for a complete description of the Class.) While notice was previously provided to the class in the Lawsuit, if you purchased a house, mobile home, or other structure containing plumbing covered by the Settlement after August 21, 1995, this may be your first notice of the Lawsuit and Settlement. Although nothing in this Notice alters or is intended to change the terms of the Settlement, however, the Notice provides essential information concerning the Settlement and your rights to participate in it.
Plaintiff Tina M. Cox and others (the "Plaintiffs") brought the Lawsuit as a class action alleging that, among other things, Shell Oil Company and Hoechst Celanese Corporation (the "Defendants") supplied raw materials used by other entities in the manufacture of polybutylene plumbing. The Plaintiffs further alleged that this plumbing is defective. In the Lawsuit the Plaintiffs sought money damages for, among other things, the cost of replacing plumbing systems and repairing property damage associated with leaks. The Defendants denied (and still deny) any legal liability relating to polybutylene plumbing. They also deny that any Plaintiff or Class Member is entitled to money damages or other relief from the Defendants. The Court has made no rulings on the merits of the Plaintiffs’ claims or of any of the Defendants’ defenses.
Polybutylene plumbing inside a structure ("PB In-House Plumbing") is a potable water supply system containing polybutylene ("PB") pipe and either acetal (plastic) or metal insert fittings (such as tees and elbows). PB pipe is a non-rigid, sometimes curved, usually gray (or possibly silver or black) plastic pipe. When used in the underground service from the water company to a structure (a "Yard Service Line"), PB pipe is blue, gray, or black. PB pipe is not used for drains, waste, or vent pipe. "PB Plumbing" refers to both PB In-House Plumbing and Yard Service Line. PB Plumbing does not include yard sprinkler systems, irrigation systems, fire sprinkler systems, sewer lines, faucets, or fixtures.
Insert fittings are used to join pieces of PB pipe. The insert fitting is inserted into the pipe and clamped with a metal (aluminum or copper) crimp ring over the outside of the pipe. Metal insert fittings are either copper or brass. Acetal insert fittings are hard gray or white plastic. They are not black. Insert fittings are not grabber, flare, or compression fittings which are often threaded and use a plastic or metal nut to secure the seal.
The Settlement Class is composed of those who: (1) own real property or structures in the United States in which there was installed between January 1, 1978, and July 31, 1995, PB plumbing with acetal insert or metal insert fittings or PB Yard Service Line; (2) own or previously owned such real property or structures and have already incurred any cost or expense, by reason of leakage from, or from failure, repair, or removal of, all or any portion of such PB Plumbing which was installed between January 1, 1978, and July 31, 1995; or (3) will own such real property or structures during the term of entitlement to relief under the Settlement.
The Class definition excludes: (1) all persons who, in accordance with the terms of the Settlement Agreement, execute a timely request for exclusion from the Settlement Class; (2) all persons who have requested exclusion from the Settlement Class and not withdrawn that request; (3) the Defendants; the Released Manufacturers; the parent and subsidiary, affiliate, and controlled entity of any of them; and the officers and directors or each of them; and (4) all parties to Geno Cioe, et al. v. Shell Oil Company, et al., Case No. 662214, and Robert L. Williams, et al. v. Shell Oil Company, et al., Case No. 658403, and related combined actions (Cases Nos. 640245, 654709, 656787, 661372, 665521, and 665527) in the Superior Court of the State of California in and for the County of San Diego, and all members of the certified classes in such lawsuits.
The Settlement does not settle or release any claims for bodily injury, wrongful death, or associated emotional distress and mental anguish. The Settlement provides a program to Eligible Claimants for polybutylene plumbing replacements, and payment for repair costs and/or damage to tangible personal property caused by qualifying leaks.
The Defendants have committed $950 million to a Settlement Fund. The Settlement Fund will be used to pay for replacement of PB Plumbing, for expenses and damage to tangible property, as described below, and for administrative expenses. If the Settlement Fund is exhausted before all Class Members have received the relief to which they are entitled under the Settlement, the Defendants may (a) provide additional funds for the continuation of the Settlement, or (b) provide no additional funds, in which case Class Members who would still be entitled to relief under the Settlement may pursue their unpaid claims against the Defendants.
All Class Members who are Eligible Claimants may participate in the recovery program established by the Settlement. Several factors determine whether a Class Member is an Eligible Claimant: (1) the date of installation of the Class Member’s PB Plumbing; (2) the nature and cause of any leak in the PB Plumbing; (3) the date on which any leak occurred; (4) the type of real property or structure ("Unit") in which the leak occurred; and (5) whether the Class Member has been a party to a prior settlement, judgment, or release relating to the Class Member’s PB Plumbing.
You may be an Eligible Claimant and entitled to recovery benefits if you are a Class Member and you have had, or in the future have, one or more Qualifying Leaks or Qualifying Yard Service Leaks. Specifically, if you have had on or after August 21, 1995, or hereafter have one or more such leaks before (a) 10 years after the date of installation of the PB In-House Plumbing, for a mobile home and for any Yard Service Line; (b) 16 years after the date of installation (but not later than January 31, 2009) for any PB In-House Plumbing containing metal insert fittings, when installed in a single-family residence (e.g., a house, duplex, triplex, quadruplex, condominium, or townhouse); or (c) 13 years after the date of installation of the PB In-House Plumbing for all other structures, you may receive a free "Replumb" (which means a replacement of PB In-House Plumbing) and reimbursement of otherwise unreimbursed expenses and damage.
You are not an Eligible Claimant under the Settlement if, with respect to PB Plumbing, you have previously entered into any other settlement agreement, are covered by a settlement agreement with the Defendants, signed a release in favor of the Defendants, been part of a trial and subject to a judgment rendered in such trial, or by the operation of accord and satisfaction.
A Qualifying Leak or Qualifying Yard Service Leak is a leak occurring within the time periods described above as the result of a failure in the PB Plumbing and resulting in an unwanted discharge of water. A Qualifying Leak or Qualifying Yard Service Leak excludes (1) a leak experienced in the first year of any applicable warranty period; (2) a leak unrelated to the ordinary use of the PB Plumbing; (3) a leak that may be repaired without cutting the wall in or at a valve or a riser or an adapter to a fixture; (4) a leak in an ice-maker line; or (5) a leak in a water meter or any part of the PB Plumbing which you do not own. An otherwise Qualifying Leak or Qualifying Yard Service Leak does not apply towards a Replumb or Yard Service Line replacement, respectively, when the leak (a) occurs within six feet of piping measured from the take off at the hot water heater, is the first leak in the Unit’s PB In-House Plumbing, and does not require cutting of walls, ceilings, or floors to repair; (b) occurs in PB In-House Plumbing with metal fittings installed after January 1, 1989, is the first leak (or first leak after a hot water heater leak), and is not in the pipe; (c) occurs in a Yard Service Line outside the exterior walls and can be repaired without excavation; or (d) occurs in 1.5 inches or greater outside diameter Yard Service Line servicing more than one unit.
If a leak occurs within any of the above time periods in a Unit not owned by you, and the leak causes damage to tangible property in your Unit, or to the Unit itself, you may be an Eligible Claimant with respect to such damage.
You are not entitled to receive payment for damage resulting from your failure to make reasonable efforts to mitigate, for repairs or other work you did not pay for, or for repairs, other work, or property damage to the extent such cost or loss was reimbursed by insurance or some other person.
In order to receive these benefits, you must submit a Claim Eligibility Form within the time limits described below in Section 8, "What are the Deadlines for Making a Claim?"
The Settlement Fund will be allocated to Eligible Claims in the order received. Once 80% of the Settlement Fund has been expended, Replumbs and Yard Service Line replacements will take priority over cash payments to Eligible Claimants.
In exchange for your right as a Class Member to participate in the Settlement by not requesting to exclude yourself from the Class, you agree to release all claims against the Defendants relating to any defects in PB Plumbing, other than claims for bodily injury, wrongful death, or associated emotional distress and mental anguish. You also thereby assign to the Defendants certain claims you may have against certain entities, relating to any defects of PB Plumbing, including all claims against E.I. du Pont de Nemours & Co.
In addition to the Settlement Fund, with the Court’s approval, the Defendants have paid $45 million as the reasonable fees and expenses of Class Counsel in achieving the Settlement. These Class Counsel include Don Barrett, Esq., Barrett Law Offices, Lexington, Mississippi; Michael D. Hausfeld, Esq. and Gary E. Mason, Esq., Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; Bruce Conley, Esq. and Damon E. Campbell, Esq., Conley, Campbell, Moss & Smith, Union City, Tennessee; as well as Gordon Ball, Esq.; Michael A. Caddell, Esq.; David H. Weinstein, Esq.; Trial Lawyers for Public Justice, P.C.; Lieff, Cabraser, Heimann & Bernstein; Hagens & Berman; Heins Mills & Olson, P.L.C.; Jackson, Taylor & Martino; Patrick Pendley, Esq.; Phillip Feliciano, Esq.; Moore & Brown; Thomas Jessee, Esq.; Carey & Danif, L.L.C.; Levin, Fishbein, Sedran & Berman; Moriarty & Associates, P.C.; Caddell & Conwell, P.C.; Weinstein Kitchenoff Scarlato & Goldman Ltd.; Kohn, Swift & Graf, P.C.; Law Offices of Marc D. Murr, P.C.; Bristow, Hackerman, Wilson & Peterson, P.C.; Law Offices of Dennis C. Burns; and Law Offices of Charles E. Dorr, P.C. These attorneys represent the interests of the Class, and you will not be charged for their services. You also have the right to hire your own attorney. If you hire your own attorney, you will be responsible for paying that attorney’s fee. You also have the right to represent yourself before the Court.
With the approval of the Court, the Defendants paid each single Representative Plaintiff or Representative Plaintiff married couple $3,000 in recognition of their efforts on behalf of the Settlement Class.
No. If you wish to remain a member of the Class and participate in the Settlement, you need do nothing at this time. However, if you had a qualifying leak in your PB Plumbing, you will need to complete a Claim Eligibility Form to begin the processing of your claim. See Section 7, "How do I Make a Claim?", below. You must do so within the applicable deadline(s). See Section 8, "What are the Deadlines for Making a Claim?", below.
If you qualify for the right to exclude yourself from the Class, and you wish to pursue your separate lawsuit and not participate in the Settlement of this Lawsuit, you must request exclusion from the Class as described below. See Section 9, "How can I exclude myself from the Class?" Remember, you cannot remain in the Class and participate in the Settlement if you choose to pursue your separate lawsuit.
If you remain a member of the Class and do not exclude yourself from it, you do not thereby obtain any right to object to the terms of the Settlement or to appeal from any Court rulings previously entered. Your decision to remain in the Class is an agreement by you to give up any rights you might have had to object or appeal from such previous rulings. You will, however, retain full rights to pursue any eligible claim and to obtain review of your claim, if any, under the Settlement’s terms.
You may contact the CPRC for a Claim Eligibility Form. Upon receipt, you should complete it and send it to the CPRC at P.O. Box 869006, Plano, Texas 75086-9006 within the time deadlines specified in Section 8 below, "What are the Deadlines for Making a Claim?".
All claims for reimbursement of expenses, damage to tangible property or replumbs or Yard Service Line Replacements resulting from Qualifying Leaks or Qualifying Yard Service Leaks must be made (postmarked) by the following deadlines:
* all claims for mobile homes and all claims arising from Qualifying Yard Service Leaks must be postmarked within 11 years of the Date of Installation of the PB In-House Plumbing or Yard Service Line;
* all claims for single-family residences (e.g., a house, duplex, triplex, quadruplex, condominium, or townhouse) with metal insert fittings must be postmarked within 17 years of the Date of Installation of the PB In-House Plumbing (but not later than May 1, 2009);
* all claims for other Units must be postmarked within 14 years of the Date of Installation of the PB In-House Plumbing.
If you do NOT want to remain a Class member and participate in the Settlement, and wish to exclude yourself, that is to "opt out" of the Lawsuit, then you must personally sign and return a green Exclusion Request postcard or other personally signed written exclusion request to the CPRC at P.O. Box 869006, Plano, Texas 75086-9006, postmarked by not later than December 31, 1999. Unsigned forms will not be accepted. No one else can sign your Exclusion Request for you. If you send in an Exclusion Request, you may not also send in a Claim Eligibility Form. You may obtain a green Exclusion Request postcard by contacting the CPRC.
By electing to be excluded from the Class (1) you will not share in any recovery under the Settlement; (2) you will not be bound by any orders or judgments entered in the Lawsuit; and (3) you may present any claims you may have against the Defendants in your own separate lawsuit at your own expense.
Information concerning the Settlement and your rights under it are available from the CPRC by calling 1-800-392-7591. You may also write to the CPRC at P.O. Box 869006, Plano, Texas 75086-9006. PLEASE DO NOT CONTACT THE COURT.
The foregoing is only a summary of certain matters related to the Lawsuit and the Settlement. You may seek the advice and guidance of your own private attorney, at your own expense, if you desire. For more detailed information, you may review the pleadings, records, and other papers on file in the Lawsuit, which may be inspected during regular business hours at Clerk and Master, Obion County Chancery Court
Dated: August 26, 1999 Hon. W. MICHAEL MALOAN
Chancellor