Carlough v. Amchem Products, Inc.

158 F.R.D. 314, 1993 U.S. Dist. LEXIS 15280, 1993 WL 747919
District Court, E.D. Pennsylvania·Decided October 27, 1993·No. Civ. A. No. 93-0215·Published·Cited by 24 cases

Opinion

MEMORANDUM

LOWELL A. REED, Jr., District Judge.

This is a class action for asbestos-related personal injuries. Currently before me is the joint motion of the settling parties for approval of notice to the class (Document No. 445).

I. BACKGROUND1

On January 15, 1993, counsel for the plaintiff class filed the complaint in this action along with motions for class certification and for approval of a proposed settlement agreement (“proposed settlement” or “settlement”) between the plaintiff class and the members of the Center for Claims Resolution (“the CCR defendants”). On the same day as the complaint was filed, the CCR defendants answered the complaint and joined in plaintiffs’ request that the class be certified and the settlement agreement be approved. The complaint describes the plaintiff class as including all persons who were exposed occupationally, or through the occupational exposure of a spouse or household member, to asbestos or asbestos-containing products for which one or more of the CCR defendants may bear legal liability, and who had not filed a personal injury lawsuit based on that exposure as of January 15, 1993. The occupational exposure must have occurred in the United States or its territories, or while working aboard U.S. military, merchant, or passenger ships, and the occupationally exposed persons must have resided in the U.S. or its territories as of January 15, 1993. Legal representatives of such occupationally exposed persons who had not, as of January 15, 1993, filed a lawsuit based on that exposure, are also included in the class.

[320]*320On January 29, 1993, the Honorable Charles R. Weiner of this Court granted conditional certification of an opt-out plaintiff class pursuant to Fed.R.Civ.P. 23(b)(3), and assigned to me the scheduling and review of settlement procedures and the resolution of objections to the settlement itself. Because of the number of objections to the subject matter jurisdiction of this Court, the fairness of the proposed settlement, and the constitutionality of notice to absent class members, I issued a Scheduling Order on June 2, 1993, setting dates for briefing and argument on these issues. Various objectors filed memo-randa of law explaining legal bases for their objections, to which the named plaintiffs and the CCR defendants (hereinafter the “settling parties”) responded. Hearings were held on August 23,1993 and October 5,1993, at which time the objectors and the settling parties were heard.

On October 6, 1993, I found that this lawsuit is a justiciable case or controversy pursuant to Article III of the Constitution and that this Court has subject matter jurisdiction over this lawsuit pursuant to the diversity statute, 28 U.S.C. § 1332. Carlough v. Amchem Prods., Inc., 834 F.Supp. 1437 (E.D.Pa.1993). This memorandum addresses (1) whether the proposed settlement is fair for the preliminary purpose of sending notice to the class, and (2) whether the plan for dissemination of notice and the contents of the notice satisfy the requirements of Fed.R.Civ.P. 23 (“Rule 23”) and the due process clause of the Constitution.

II. DISCUSSION

A. Fairness of the Proposed Settlement

Before deciding whether the settling parties plan for dissemination of the notice and the contents of the notice should be approved, I must make a preliminary determination of whether the proposed settlement is fair. See Manual for Complex Litigation § 30.44, at 241 (2d ed. 1985).

After hearing extensive argument at the hearing on August 23, 1993, and having reviewed the proffers of the settling parties and the legal memoranda filed by the objectors, I find that the proposed settlement is fair for the preliminary purpose of deciding whether to send notice to the class in that it appears to be the product of serious, informed, non-collusive negotiations,2 it has no obvious deficiencies, it does not improperly grant preferential treatment to class representatives or segments of the class, and it clearly falls within the range of possible approval.3 See Id. Although I accept as reliable the proffers of the settling parties as to the fairness of the proposed settlement and find based on the information before me that the terms of the proposed settlement are fair to all members of the class, I will undertake a more detailed examination and analysis of the additional data in support of the proposed settlement during the final hearing process.

B. Adequacy of Notice to the Class

1. Dissemination of Notice

a. Description of the Plan for Dissemination of Notice

The settling parties’ proposed plan for dissemination of notice (the “notice plan”) has several features:4 (1) individual notice, by first class mail, to the 9,000-plus plaintiffs who have filed suit against one or more of the CCR defendants since this class action was filed on January 15, 1993, (2) efforts to identify other absent class members and individual notice provided to those persons identified, and (3) notice to all others by publiea[321]*321tion and through various persons and organizations.

The settling parties contend that the only class members whose identities are currently known are the 9,000-plus plaintiffs who have filed suit against one or more of the CCR defendants since this class action was filed on January 15, 1993. The notice plan provides for individual notice to be sent by first class mail to counsel for each of these plaintiffs.5

Given the potential size of the plaintiff class, the number of currently identifiable class members is relatively small. Because of this, the notice plan also includes substantial measures to find the names and addresses of other class members and includes individual notice provided directly to those identified by these measures. These efforts will be made through contacts with national and local labor unions and plaintiffs’ lawyers, and through paid and unpaid advertising.

With respect to the unions, the settling parties have drawn up a list of 56 national or international unions that may have current or retired members in the plaintiff class.6 Because the unions do not typically make their member lists available to the public, the settling parties will send a letter to each of the 56 unions to ask for names and addresses of any current or retired member who worked with or around asbestos or asbestos-containing products. Complete individual notice packets will be mailed to all names and addresses generated through these efforts. Alternatively, if such names and addresses cannot be furnished, the settling parties will propose some alternative means, such as a mailing by the union at the CCR defendants’ expense, through which notice of this class action and proposed settlement may be sent to current and retired union members.7

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Carlough v. Amchem Products, Inc., 158 F.R.D. 314, 1993 U.S. Dist. LEXIS 15280, 1993 WL 747919 (E.D. Pa. 1993).

158 F.R.D. 314 (Carlough v. Amchem Products, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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