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Judge gives water crisis settlement preliminary approval


Charleston Gazette-Mail

CHARLESTON, W.Va. — Kanawha Valley residents, businesses and workers will soon be able to file claims to seek their share of the $151 million settlement of the class-action lawsuit over the January 2014 water crisis, under an order issued Thursday afternoon by the federal judge overseeing the case.

U.S. District Judge John T. Copenhaver Jr. issued a 17-page order in which he gave preliminary approval to the deal with West Virginia American Water Co. and Eastman Chemical Co. Copenhaver said that the settlement is “sufficiently fair, reasonable and adequate.”

The judge’s preliminary approval starts the process for a formal public notice of the settlement terms, for members of the lawsuit class to have their say about those terms or even “opt out” of the deal, and for formal claims to be filed and eventually paid.

Electronic filing of claims will start within a few weeks, and the formal public notice, including a simple claim form, will be mailed to class members starting on Oct. 11, according to lawyers in the case.

“I think this is an extraordinarily beneficial result for the community,” said Stuart Calwell, one of the lawyers for the plaintiff class. “It’s going to put dollars in people’s pockets.”

Residents, businesses and workers can get more information about the settlement by visiting the website or by calling the settlement administrator at (855) 829-8121.

Anthony Majestro, another lawyer for the residents, said that distribution of the settlement funds will not start until the settlement received final approval, following a hearing that Copenhaver scheduled for Jan. 11, and after the deadline for claims to be filed, which the judge’s order set for Feb. 21.

“We’re very pleased that the judge entered the order preliminarily approving the settlement, and we look forward to receiving and processing claims so that the class members can receive compensation for their losses,” Majestro said.

Under the settlement, residential households will be able to file a simple claim form and obtain $550 for the first resident and $180 for each additional resident. Residents can also file more detailed information about their losses — for things such as bottled water or replacement of appliances — if they provide some proof of those expenditures.

Businesses can likewise obtain flat payments, based on their size, or can submit documentation of specific losses to have those recouped. The settlement also provides additional payments to women who were pregnant at the time of the spill, residents who had medical expenses, and hourly-wage earners who lost money when businesses they worked in closed during the water crisis.

The amended settlement comes 11 months after the parties agreed, on the eve of trial, to general terms of a deal to resolve the complicated case over the region’s ability to use its tap water during the “do not use” order period that followed the contamination of the Elk River supply by a spill of Crude MCHM and other chemicals from the Freedom Industries facility just 1.5 miles upstream from the water company intake. Last month, the lawyers filed an amended version of the settlement, in an effort to address a variety of concerns raised by Copenhaver about the initial deal.

In the case, lawyers for residents and businesses had alleged that West Virginia American did not adequately prepare for or respond to the spill and that MCHM-maker Eastman did not properly warn Freedom of the dangers of its chemical or take any action when Eastman officials learned that the Freedom facility was in disrepair. West Virginia American and Eastman continue to deny any liability, and say the blame for the crisis rests with Freedom Industries, which admitted to criminal pollution violations related to the spill.

The class covered by the case includes 224,000 residents and about 8,000 businesses. It includes basically any business or resident who received tap water from the Elk River intake plant and any hourly wage earner whose employer closed because of the spill and resulting water system contamination.

Copenhaver’s order issued Thursday outlined the following key dates in settlement process:

Oct. 11 — Class notice program commences.

Nov. 8 — Initial class notice program complete.

Dec. 8 — Objection and opt-out deadline.

Dec. 18 — Deadline for settlement administrator to tabulate and identify opt-outs.

Dec. 29 — Filing of motion and supporting papers for final approval and any supplement to motion for attorneys’ fees and litigation expenses.

Jan. 2 — Deadline for defendants to exercise right to terminate the settlement based on number of opt-outs.

Jan. 9 —  Final fairness hearing/approval hearing, at 10 a.m.

Feb. 21 — Deadline for claims submission.

Reach Ken Ward Jr. at [email protected], 304-348-1702 or follow @kenwardjr on Twitter.

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