IN THE CIRCUIT COURT OF GREENE COUNTY, ALABAMA
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GARRIA SPENCER, et al., Plaintiffs, vs. SHELL OIL COMPANY, et al., Defendants. |
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Civil Action No. CV 94-074 |
TO ALL
PERSONS WHO HAVE OWNED OR CURRENTLY OWN
HOMES OR
STRUCTURES IN THE UNITED STATES
THAT CONTAIN
A PLUMBING SYSTEM MADE OF
POLYBUTYLENE
PIPE AND ACETAL PLASTIC INSERT FITTINGS
THIS NOTICE MAY AFFECT YOUR RIGHTS
PLEASE READ IT
CAREFULLY
THIS NOTICE ANSWERS THESE IMPORTANT QUESTIONS
1. Why should I read this notice?
2. What is the lawsuit about?
3. Who is the Settlement with?
4. What are the plumbing systems covered by this Settlement?
5. Who is in the Class?
6. What are the Settlement recovery terms?
7. Do I need to do anything now to participate in the
Class and Settlement?
8. How do I make a claim?
9. How can I exclude myself from the Class?
10. Where do I get additional information?
1. WHY SHOULD I READ THIS NOTICE?
Your rights may be affected by the lawsuit known as Spencer, et al. v. Shell Oil Co., et al., Civil Action No. CV 94-074 (the “Lawsuit”) in the Circuit Court of Greene County, Alabama (the “Court”). This notice is given pursuant to Rule 23 of the Alabama 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 with DuPont on November 17, 1995.
The Class includes all former or current owners of homes or structures (including houses, commercial properties, and mobile homes) in the United States that contain a plumbing system made of polybutylene pipe and acetal plastic insert fittings. While notice was previously provided to the Class in the Lawsuit, if you purchased a home or structure containing plumbing covered by the Settlement after August 1, 1999, this may be your first notice of the Lawsuit and Settlement and your rights to participate in it.
2. WHAT IS THE LAWSUIT ABOUT?
Plaintiff Garria Spencer and others (the “Plaintiffs”) brought the Lawsuit as a class action alleging that Defendants Shell Oil Company (“Shell”), Hoechst Celanese Corporation (“Celanese”), and E. I. du Pont de Nemours and Company (“DuPont”) were negligent and committed fraud in connection with the manufacture, promotion, and sale of polybutylene plumbing systems. The Defendants denied (and still deny) any legal liability and wrongdoing relating to polybutylene plumbing. The Court has made no rulings on the merits of the Plaintiffs’ claims or of any of the Defendants’ defenses.
3. WHO IS THE SETTLMENT
WITH?
A settlement of the Lawsuit was reached with DuPont only. The Court ruled that the Lawsuit could proceed as a class action for the purpose of completing a settlement with DuPont. The Court gave its final approval to this Settlement on November 17, 1995.
4. WHAT ARE THE PLUMBING
SYSTEMS COVERED BY THIS SETTLEMENT?
The plumbing systems included in this class action are made of polybutylene pipe and acetal plastic insert fittings. The polybutylene pipe is usually gray and sometimes black plastic. The acetal fittings are usually gray and occasionally white plastic. The pipe and fittings are secured together by crimp rings made of aluminum or copper. They may be visible in the attic or basement or behind the walls or near the water heater of the homes or structures in which they were installed.
This plastic plumbing system has been sold under various names, including Qest, Bow, Safeguard, and Flex-temp.
The polybutylene pipe and plastic insert fitting system is the only type of system involved in this lawsuit. Homes or structures with other types of plumbing systems are not included in this lawsuit. The following types are specifically NOT included:
· Metal plumbing systems (for instance, with copper or iron pipes)
· CPVC plumbing systems (rigid white plastic pipes and fittings that are glued or solvent-welded)
· Systems of polybutylene pipe with metal (copper or brass) or black plastic fittings
· Systems of polybutylene pipe with compression fittings (fittings in which a plastic or metal nut is tightened to make the connection secure)
· Blue polybutylene water supply pipe supplying water to the house
· Any kind of plastic or metal drain or wastewater piping
5. WHO IS IN THE CLASS?
The Settlement Class is composed of all persons who own or previously owned homes or structures in the United States containing a plumbing system made of polybutylene pipe and acetal plastic insert fittings.
The Class excludes any persons who as of May 12, 1995: (a) have already filed their own individual lawsuits or been a member of a class certified against DuPont seeking damages for the same polybutylene plumbing system; (b) have already signed releases or covenants not to sue DuPont; (c) have previously had their polybutylene plumbing system replaced and such replacement and all related property damages were paid for by some other entity; (d) are individual claimants represented by the Houston, Texas law firm of Fleming, Hovenkamp & Grayson, P.C., provided, however, that the individual claimants represented by these attorneys may elect to accept settlement with DuPont; (e) are members of a certified class in San Diego County, California; or (f) are defendants in this lawsuit or manufacturers of polybutylene pipe, fittings, or components of a polybutylene plumbing system (including such defendants’ and manufacturers’ officers and directors).
The Class excludes governmental entities, municipalities, and privately owned water supply companies.
The Class excludes (1) persons who submitted a timely request for exclusion from the class before October 27, 1995 during the original notice period, (2) persons who submitted a timely request for exclusion from the class before November 1, 1999 following the first supplemental notice, or (3) persons who submit a timely request for exclusion from this class, in accordance with paragraph 9 below.
The Settlement does not settle or release any claims for personal injury or wrongful death arising from polybutylene plumbing systems.
6. WHAT ARE THE SETTLEMENT RECOVERY TERMS?
The Settlement has been approved by the Court. The basic recovery terms under the Settlement are as follows:
DuPont has committed $120 million to a Settlement Fund. The Settlement Fund provides for the following distribution:
· DuPont will pay 10 percent of the cost to replumb the plumbing systems of a Class Member’s property unit if such replumb is actually performed and completed within 15 years of the plumbing system’s installation. The 15 year limitation period does not apply to Class Members who acquired their property after August 1, 1999, for the period from October 1, 2003 to December 31, 2003. After December 31, 2003, this 15 year limitation period will apply to all Class Members.
· DuPont will pay 10 percent of the actual cash value of physical damage to property of a Class Member caused by a leak in the polybutylene plumbing system occurring within 15 years of its installation, if a replumb is actually performed and completed within 15 years of the plumbing system’s installation. The 15 year limitation period does not apply to Class Members who acquired their property after August 1, 1999, for the period from October 1, 2003 to December 31, 2003. After December 31, 2003, this 15 year limitation period will apply to all Class Members.
If the Settlement Fund is exhausted before all Class Members have received the relief to which they are entitled under the Settlement, DuPont 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 DuPont.
DuPont has paid the costs of providing notice to Class Members and the fees and expenses of Class Counsel approved by the Court. These Class Counsel include: J.L. Chestnut, Jr., Chestnut, Sanders, Sanders & Pettaway, P.C., 1405 Jeff Davis Avenue, Selma, AL 36702; T. Roe Frazer, II, Langston Frazer Sweet & Freese, P.A., 201 North President Street, Jackson, MS 39201; Joseph R. Whatley, Jr., Cooper, Mitch, Crawford & Whatley, 505 20th Street, North, 1100 Financial Center, Birmingham, AL 35203; George M. Fleming, Fleming, Hovenkamp & Grayson, P.C., 1330 Post Oak Boulevard, Suite 3030, Houston, TX 77056; and R. Jackson Drake, Drake & Pierce, P.O. Box 86, Tuscaloosa, AL 35402. 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 fees. You also have the right to represent yourself before the Court.
7. DO I NEED TO DO ANYTHING NOW TO PARTICIPATE IN THE
CLASS AND SETTLEMENT?
No. If you wish to remain a member of the Class and participate in the Settlement, you need do nothing at this time.
If you meet the requirements for excluding yourself from the Class, and you do not want to participate in the Settlement of this Lawsuit, you must request exclusion from the Class as described below in Section 9, “How Can I Exclude Myself From The Class?”
If you remain a member of the Class, 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.
8. HOW DO I MAKE A CLAIM?
You should call the Spencer Class Facility at (800) 490-6997, send an email through the Spencer Class Facility’s website at www.SpencerClass.com, or send a letter by first-class mail to:
Spencer Class Facility
P.O. Box 81448
Atlanta, GA 30366
9. HOW CAN I EXCLUDE MYSELF FROM THE CLASS?
You may exclude yourself from being a Class Member only if you purchased your structure after August 1, 1999. If you purchased your structure after August 1, 1999, YOU WILL BE INCLUDED IN THE CLASS UNLESS YOU REQUEST TO BE EXCLUDED IN THE MANNER SET FORTH BELOW. If you continue as a Class Member, you will be bound by any judgment or other final disposition of this lawsuit against DuPont by the Court.
If you do NOT want to remain a Class Member and participate in the Settlement, and you do want to exclude yourself (“opt out” of the Lawsuit), then you must send a letter by first-class mail setting forth your name, present address, present telephone number, the address of the home(s) you own with polybutylene pipe and acetal insert fitting plumbing systems, the names of any co-owners, and a statement that you wish to be excluded from the class, postmarked no later than December 1, 2003. Unsigned letters will not be accepted. No one else can sign your opt-out request for you. Please address the letter to:
Spencer Class Facility
P.O. Box 81448
Atlanta, GA 30366
If you send in an opt-out request, you may NOT also make a claim under the Settlement. Also, (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 Defendants in your own separate lawsuit at your own expense.
10. WHERE DO I GET
ADDITIONAL INFORMATION?
THIS NOTICE IS ONLY A SUMMARY. Information concerning the Settlement and your rights under it are available from the Spencer Claims Facility by calling 1-800-490-6997 or visiting its website at www.SpencerClass.com. You may also write to the Spencer Claims Facility at P.O. Box 81448, Atlanta, Georgia 30366.
PLEASE DO NOT CONTACT THE COURT. You may review the pleadings, records, and other papers on file in the Lawsuit, which may be obtained during regular business hours at the Clerk’s Office, Circuit Court of Greene County, Alabama.
Dated: September 22, 2003