Exhibit 10.2
IN THE CIRCUIT COURT OF CHOCTAW COUNTY, ALABAMA
THOMAS A. FOSTER and LINDA E. Civil Action No. CV95-151-M
FOSTER, et al.
Plaintiffs, NATIONAL CLASS ACTION
SETTLEMENT AGREEMENT
v.
ABTco, INC., ABT BUILDING PRODUCTS
CORP., ABITIBI-PRICE, INC. and ABITIBI-
PRICE CORP.,
Defendants.
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RECITALS
The Settlement Class Representative Plaintiffs in this Action
represent owners of structures throughout the United States on which Hardboard
Siding manufactured by the Defendants was installed prior to the Initial Notice
Date in this Action. The Settlement Class Representatives allege that the
Hardboard Siding manufactured by Defendants at the facility in Roaring River,
North Carolina and installed on structures owned by the Settlement Class Members
has buckled, discolored and deteriorated and caused damage to other parts of the
structures. Plaintiffs allege that the warranties applicable to such hardboard
siding contain unconscionable limitations and exclusions, and that the
warranties have failed of their essential purpose, and seek money damages and
other relief as a result.
Defendants deny all such allegations. However, they have
agreed to enter into this Settlement in order to put to rest all controversy and
to avoid the further expense and burdensome, protracted litigation which would
be involved in defending this and any future actions, without in any way
acknowledging any fault or liability on their part. For their part, although
Plaintiffs' Class Counsel are confident of their contentions and arguments, they
recognize that there are significant legal and factual obstacles to a successful
prosecution of this
Action; that it would involve time consuming and lengthy proceedings to resolve
them; and that the ultimate outcome would be uncertain.
In order to provide meaningful, immediate relief to the
Settlement Class Members and to resolve through compromise in a fair,
appropriate manner the many contentious legal and factual issues involved in
this Action, the Settlement Class Representatives, through their Class Counsel,
have negotiated a siding repair program available to all Settlement Class
Members regardless of when their Siding was installed. This Settlement Agreement
provides immediate payments to Settlement Class Members with Damaged Siding
under a Compensation Formula that takes into account the cost of removal and
replacement of the Siding; the length of time the Siding has been on the
structure; whether the Siding has been painted periodically; and the location of
the damage on the structure. The Parties believe this formula is a reasonable
and appropriate means of determining the amount to be paid to Settlement Class
Members to settle fully their claims in a prompt and equitable manner.
This Settlement Agreement provides substantial monetary and
non-monetary benefits to Settlement Class Members whose Hardboard Siding
experiences Compensable Damage. Among other things, the Settlement Agreement
provides increased compensation for failed Siding with fewer procedural or
substantive conditions to payment, is based on compensation for current labor
and materials costs to repair or replace Siding (as opposed to reimbursing
Settlement Class Members only for one or two times the original cost of the
materials or for the original installation costs), extends the benefits of the
Settlement Agreement to subsequent owners or transferees of Properties with
Hardboard Siding, extends the benefits of the Settlement Agreement to Persons
who previously settled warranty claims without legal representation, even if
future claims were released in such settlements, permits Settlement Class
Members who already have repaired or replaced their Siding to recover under the
Settlement Agreement without regard to the notice requirements of the original
warranty, acknowledges and provides for special circumstances, such as where the
Property has been listed for sale, where significant water intrusion is being
experienced, or where the style of the Damaged Siding is not
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practicably available, involves simplified claim forms and claim procedures,
permits in appropriate circumstances an "Accelerated Payment" by Defendants, and
contains built-in protections to insure that the Settlement Agreement is
administered fairly in accordance with the terms of this Agreement, including
audit procedures by Class Counsel and the right of all Class Members to obtain
an inspection of their Property conducted by Independent Inspectors.
With limited exceptions, the improved terms of the Settlement
Agreement will be available to all Settlement Class Members for twenty-five (25)
years from the Date of Installation of the Settlement Class Members' Hardboard
Siding. In addition, the ABT Defendants have agreed for a minimum of two
additional years to provide the Enhanced Warranty that is attached to this
Settlement Agreement to Persons who purchase ABT Siding and to undertake their
best efforts to put copies of the new Enhanced Warranty and the company's Owner
Installation and Maintenance Instructions into the hands of such Property
Owners.
NOW, THEREFORE, THIS SETTLEMENT AGREEMENT is entered into this
3rd day of May, 2000, by and among (a) the Settlement Class Representative
Plaintiffs in this case, for themselves and on behalf of the plaintiff
settlement class as hereinafter defined; and (b) Defendants ABTco, Inc. and ABT
Building Products Corp.; and Defendants Abitibi-Price, Inc. and Abitibi-Price
Corporation.
Subject to Court approval and such additional discovery and
investigations as Plaintiffs' Class Counsel deem necessary or appropriate, and
as required by the United States Constitution and the Alabama Rules of Civil
Procedure, it is hereby stipulated and agreed by the Parties that upon the entry
by the Court of a Final Order and Judgment approving the settlement and
directing its implementation, this Action shall be settled and compromised upon
the terms and conditions set forth below.
1. DEFINITIONS
As used in this Agreement and in the attached Exhibits, the following
definitions apply to this Agreement:
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1.1 ABITIBI DEFENDANTS means defendants Abitibi-Price, Inc. and
Abitibi-Price Corp., all of their present or former parents, subsidiaries or
affiliates, and/or all of their present or former directors, officers,
employees, successors, agents and assigns.
1.2 ABITIBI SIDING means Hardboard Siding manufactured between
December 22, 1969 and October 19, 1992 at the Roaring River, North Carolina
facility and that is or has been installed on the Property of a Settlement Class
Member, excluding any such products that were labeled and sold by the Abitibi
Defendants as B-grade, shop, or cull.
1.3 ABT DEFENDANTS means defendants ABTco, Inc. and ABT Building
Products Corp., all of their present or former parents, subsidiaries or
affiliates, and all of their present or former directors, officers, employees,
successors, agents and assigns.
1.4 ABT SIDING means Hardboard Siding manufactured at the Roaring
River, North Carolina facility on or after October 20, 1992, and that is or has
been installed on the Property of a Settlement Class Member on or before the
Initial Notice Date, excluding any such products that were labeled and sold by
the ABT Defendants as B-grade, shop or cull.
1.5 ACTION means the above-captioned action, THOMAS A. FOSTER, ET
AL. V. ABTCO, INC., ET. AL, Case No. CV-95-151-M, Circuit Court of Choctaw
County, Alabama.
1.6 ADMINISTRATIVE EXPENSES means the costs and expenses to be
paid by Defendants in connection with the Settlement of this Action, as more
particularly set forth in Section 4, below.
1.7 AGREEMENT or SETTLEMENT AGREEMENT means this Settlement
Agreement, including all Exhibits.
1.8 ATTORNEY FEES AND EXPENSES means the reasonable amounts
awarded by the Court as compensation for the services provided by Plaintiffs'
Class Counsel and as reimbursement of their reasonable costs and expenses
(including expert or consulting witness fees and expenses), as provided in
Paragraph 14.3, below.
1.9 CLAIM means a request for payment for Damage or for
reimbursement of an Unreimbursed Repair submitted to the Claims Office under
this Settlement Agreement.
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1.10 CLAIM FOR UNREIMBURSED REPAIR means a Claim in the form
attached to this Agreement as Exhibit A and filed by a Settlement Class Member
who seeks reimbursement of costs or expenses incurred to repair or replace
Siding prior to submission of a Claim.
1.11 CLAIM FORM means the simplified Claim Forms for submitting
Claims under the terms of this Settlement Agreement, attached hereto as Exhibits
A, B and C.
1.12 CLAIMANT means any Person who submits a Claim during the term
of this Agreement.
1.13 CLAIM PERIOD means (a) with respect to each Claim (other than
a Claim for Unreimbursed Repair or a Prior Claim), twenty-five (25) years after
the Date of Installation; (b) with respect to a Prior Claim, twelve (12) months
from the Initial Notice Date; and (c) with respect to a Claim for Unreimbursed
Repairs for which the repair or replacement was commenced prior to or within six
(6) months following the Initial Notice Date without actual notice of this
Settlement Agreement, the Claim Period is twelve (12) months from the Initial
Notice Date.
In the event the Final Order and Judgment approving this
Settlement is appealed, and Defendants do not implement its terms for Settlement
Class Members during the pendency of the appeal, the Claims Period for Claims
involving Prior Claims or Claims for Unreimbursed Repairs shall be extended and
shall expire no earlier than nine (9) months following the Settlement Date.
A Claim shall be deemed "filed" or "submitted" as of the date
of its postmark when mailed first class, registered or certified mail, postage
prepaid and properly addressed to the Claims Office, or when delivered to any
commercial one or two-day delivery service if properly addressed to the Claims
Office, or when actually received by the Claims Office, whichever is first.
In all events, claims filed on behalf of Class Members whose
siding was installed between May 15, 1975 and May 15, 1976 shall have at least 9
months following the Settlement
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Date within which to file a Claim, and the applicable age and paint deductions
shall be tolled as to such claim between the Initial Notice Date and the
Settlement Date.
1.14 CLAIMS OFFICE means the office or department established by
the Defendants for the purpose of implementing the Settlement Agreement.
1.15 SETTLEMENT CLASS REPRESENTATIVES or SETTLEMENT CLASS
REPRESENTATIVE PLAINTIFFS means Thomas Foster, Linda Foster, Nancy Fiedler,
Daniel Gaines, William Dunn, Jerry Kolar and Verdis Sheffield, the named
plaintiffs in this Action.
1.16 COMPENSABLE DAMAGE means, with respect to Site-Built
Structures, Damage that is not Excluded Damage, and with respect to Mobile
Homes, any panel siding that has sustained Damage.
1.17 COURT means the Circuit Court of Choctaw County, in which the
Action is pending.
1.18 DAMAGE, DAMAGES and DAMAGED as it relates to Hardboard
Siding means any of the following:
a. thickness swell in excess of 15% of the Defendants'
maximum standard tolerance, that is, a total measure
of 0.604" for Siding with a nominal thickness of
one-half (1/2) inch and a total measure of 0.518" for
Siding with a nominal thickness of 7/16 inch;
b. edge checking, where a feeler gauge of 0.025"
thickness and one-half inch width can be inserted
one-half inch into a suspected delaminated edge with
moderate hand pressure;
c. fungal or other moisture induced degradation which
results in soft board in which moderate thumb
pressure deforms, indents or punches a hole in the
board;
d. buckling, warping or bowing of Siding in excess of
1/4" between studs spaced not more than 16" inches on
center and 5/8" between studs spaced more than 16"
and not more than 24" on center. Waviness or apparent
warping, buckling or bowing of Siding is not
considered to constitute Damage if such is due to the
Siding conforming to the curvature of misaligned
framing;
e. wax bleed, raised or popped fibers or fiber bundles,
where the condition exists on more than 20% of the
exposed board surface and, in the case of
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wax bleed, where the Siding in question was painted
within two years of the date of the claim. "Wax
Bleed" does not include paint discoloration;
f. delaminated or cracked primer or primer peel, or
peeling, blistering, flaking, chipping, cracking or
other loss of adhesion of the original factory
finish;
g. separation of the Fusion Finish-TM- overlay from the
substrate.
Damage does not include (i) intentional, reckless or negligent
physical damage to Siding (unrelated to installation or maintenance or weather)
caused directly or indirectly by a Claimant or other Person; or (ii) conditions
requiring routine painting, washing, caulking or similar maintenance; or (iii)
damage to Siding to the extent resulting from natural disaster including, but
not limited to, fire, hurricane, flood, earthquake, earth movement, or other
similar force majeure events.
1.19 DAMAGE PAYMENT
a. With respect to SITE BUILT STRUCTURES, Damage Payment
means the amount payable to Settlement Class Members
under this Settlement Agreement calculated in
accordance with the compensation formula A =[(CD) x
(RC)]-D where A is the Damage Payment, CD is the
amount of Compensable Damage, RC is the Replacement
Cost, and D is the applicable Deductions.
b. With respect to MOBILE HOMES, Damage Payment means
50% of the applicable Replacement Cost times the
number of panels on the mobile home evidencing Damage
without any other Age or Non-Painting Deduction.
c. All Damage Payments shall be in the amounts and paid
at the times provided in this Settlement Agreement
calculated in strict accordance with the provisions
of this Agreement; provided that the payments to
Settlement Class Members who file a Claim for
Unreimbursed Repair shall not exceed the lesser of
the reasonable and properly documented out-of-pocket
costs of the repairs or replacements or the amount
that would have been awarded under the compensation
formula; and provided, further that any amounts
payable under this compensation formula shall be
reduced by any compensation received by the
Settlement Class Member on account of such Damaged
Siding from any other source, including but not
limited to Defendants, builders, developers,
contractors, manufacturers, wholesalers, retailers or
insurers, but only to the extent that the sum of such
other payments and the Damage Payment exceeds the
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product of Replacement Cost multiplied times the
total square footage of the Siding that has sustained
Damage.
d. If any portion of a piece of lap or panel Siding has
sustained both Excluded Damage and Compensable
Damage, the entire surface area of that lap board or
panel Siding will be deemed to be Compensable Damage
in calculating the Damage Payment.
e. Compensable Damage to any Siding, the production of
which has been discontinued or is discontinued before
or during the Term of this Agreement and for which
there is no reasonably appropriate substitute, shall
be entitled to payment as follows: (i) if 30% or more
of any Side of a Property has sustained Compensable
Damage, then the Compensation Formula shall include
all of the remaining Siding on that Side as
Compensable Damage; or (ii) if 40% or more of the
Siding on the entire Property has sustained
Compensable Damage, then the Compensation Formula
shall include all of the remaining Siding on the
Property as Compensable Damage. The Parties agree
that no reasonable substitute exists to match the
following list of currently discontinued profiles: 4"
OC Fir, Redwood Panel, 9" Plain Beaded, Band Sawn
Lap, System 25 Great Random Shake, Textured Panel,
and Bevelside-4 Fir.
1.20 DATE OF THE CLAIM means the date on which a properly
documented Claim under this Settlement Agreement is postmarked when mailed first
class, registered or certified mail, postage prepaid and properly addressed to
the Claims Office, or when delivered to any commercial one or two-day delivery
service, if properly addressed to the Claims Office, or when actually received
by the Claims Office, whichever is first.
1.21 DATE OF INSTALLATION means the date or approximate date that
Hardboard Siding was installed on the Property of a Settlement Class Member.
With respect to Siding originally installed on a newly constructed Property, in
the absence of other reasonable documentation indicating a different
installation date, the Date of Installation will be presumed to be the later of
the date of (a) manufacture as identified by any stamp on the back of Claimant's
sample submitted with a Claim or otherwise identified by a stamp on the back of
Claimant's Siding, (b) the certificate of occupancy, (c) the first purchase of
the newly constructed Property having such Siding installed, or (d) with respect
to Mobile Homes, the date of the original bill of sale.
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1.22 DEDUCTIONS, as they relate to Site Built Structures, means the
following:
a. AGE DEDUCTION
i. No deduction for the first year following
the Date of Installation;
ii. 4% per year thereafter.
b. NON-PAINTING DEDUCTION
i. No deduction for the first five years
following the Date of Installation;
ii. No deduction if Siding was repainted within
five years from Date of Installation and at
least once each five years thereafter;
iii. If Siding is not painted within five years
from Date of Installation, 4% per year
commencing at the end of the fifth year from
the Date of Installation until the earlier
of (a) the date painted; or (b) the Date of
the Claim;
iv. If Siding is not painted within seven years
from Date of Installation, 4% per year
commencing at the end of the fifth year from
the Date of Installation until painted and
an additional 1% per year commencing at the
end of the seventh year from the Date of
Installation until the earlier of (a) the
date painted; or (b) the Date of the Claim;
v. If the Siding has been painted since the
Date of Installation, 4% for each year from
the end of the fifth year following the
previous painting until the earlier of (a)
the date painted; or (b) the Date of the
Claim.
vi. The Non-Painting Deduction shall be
suspended as of the date the Damage occurs
(but not as to any later, unrelated Damage)
provided that the fact such Damage occurred
on such date is verified by the filing of an
earlier warranty, insurance or other claim,
an independent inspection, or other evidence
which reasonably establishes the fact and
amount of such Damage.
c. The Age Deduction and the Non-Painting Deduction
applicable to a Claim for an Unreimbursed Repair
shall be calculated as of the date the repair was
commenced.
d. The Age Deduction and Non-Painting Deduction
applicable to a Prior Claim shall be calculated only
to the date the Prior Claim was submitted to the
Defendants.
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1.23 DEFENDANTS means the Abitibi Defendants and the ABT
Defendants.
1.24 ELIGIBLE CLAIMANT means a Settlement Class Member who timely
submits a Claim under this Settlement Agreement and substantially complies with
the requirement to supply all information and materials required by this
Settlement Agreement in support of his or her Claim, and who meets any of the
following requirements:
a. a current owner of Property on the Initial Notice
Date; or
b. a current or former owner of Property on the Initial
Notice Date who incurred an Unreimbursed Repair Cost;
or
c. a current or former owner of Property on the Initial
Notice Date who made a Prior Claim (regardless of
whether such owner signed or executed a release of
claims except as provided in PARA 1.50(b) where legal
proceedings have been initiated); or
d. the current owner of Property who is a
successor-in-interest or other proper assignee of any
former owner of the Property who incurred an
Unreimbursed Repair Cost or made a Prior Claim.
e. Eligible Claimants may appoint a designated agent
(e.g., an attorney or a contractor) to assist or
represent him/her in connection with the filing of a
Claim provided that, except as provided in paragraph
1.24(d), the Claim may only be filed by and in the
name of the Eligible Claimant and may not be assigned
to a third party for collection or otherwise.
1.25 ENHANCED WARRANTY means the new 25-year Enhanced Warranty
attached to this Settlement Agreement as Exhibit D.
1.26 EXCLUDED DAMAGE ON SITE BUILT STRUCTURES means Damage which is
excluded from the calculation of Compensable Damage occurring on Site-Built
Structures, as follows:
a. BUCKLING of any piece of Hardboard Siding
i. that is attached to studs that are placed
more than 24" on center or, in the case of
7/16" lap siding, that is attached to studs
that are placed more than 16" on center; or
ii. that is not in contact with the stud or
sheathing at the point where there are
missing nails or where nails do not
penetrate into the studs.
b. DETERIORATION occurring on any piece of Hardboard
Siding that is:
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i. installed within 6" from the ground or
within 1" from hardscape (e.g., driveways,
patios, sidewalks);
ii. installed at roof/wall intersections and
which has less than a 1" cut back between
the intersections;
iii. in direct contact with un-flashed masonry
and concrete surfaces;
iv. within 8" around the perimeter of windows,
doors and other openings;
v. within 12" from the roof line on the
backside of chimney chases that do not have
a "cricket" or "saddle" to direct water flow
away from the chimney.
c. EXCLUDED DAMAGE also includes:
i. all Damage that is readily observable and
that is horizontal or runs downward from and
is continuous with and originates
exclusively from the Excluded Damage. (Any
doubts as to whether Damage is continuous
with and originates exclusively from
Excluded Damage shall be resolved in favor
of the Claimant.); or
ii. any Damage to Hardboard Siding that is not
used on the structure as Siding (e.g.,
Siding that is ripped and used as trim or
band board).
1.27 FAIRNESS HEARING means the settlement approval hearing(s) to
be conducted by the Court in connection with the determination of the fairness,
adequacy and reasonableness of this Agreement in accordance with Ala. R. Civ. P.
23(e).
1.28 FIELD INSPECTION REPORT means the report, in a form to be
mutually agreed upon by the Parties, to be completed by the Independent
Inspector firm when conducting an inspection of a Property.
1.29 FINAL ORDER AND JUDGMENT means the Order to be entered by the
Court, in a form that is mutually agreeable to the Parties, approving this
Agreement as fair, adequate and reasonable and in the best interests of the
Class as a whole in accordance with Ala. R. Civ. P. 23(e), and making such other
findings and determinations as are necessary and appropriate to effectuate the
terms of this Agreement.
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1.30 HARDBOARD SIDING or SIDING means lap or panel hardboard siding
manufactured by the Abitibi Defendants between December 22, 1969 and October 19,
1992, and by the ABT Defendants since October 20, 1992, at the manufacturing
facility in Roaring River, North Carolina, and which was installed on a Property
prior to the Initial Notice Date. The capitalized terms Hardboard Siding and
Siding as used herein include only hardboard forms of siding, and do not include
siding manufactured from plywood, T-111, vinyl, fiber-cement or other materials
or processes, nor do those terms include hardboard siding manufactured by the
Defendants at any manufacturing facilities other than the Roaring River, North
Carolina manufacturing plant.
1.31 INDEPENDENT INSPECTOR means the firm(s) or person(s) retained
by mutual agreement of the Parties, with the approval of the Court, to inspect
Properties in accordance with the terms of this Agreement.
1.32 INITIAL NOTICE DATE means the first date upon which the Notice
of Proposed Class Action Settlement is either mailed to the Settlement Class
Members or published pursuant to the Notice Plan approved by the Court.
1.33 MOBILE HOME means a structure meeting all of the following
requirements: (a) that is built in a manufacturing facility that is designed to
fabricate and assemble family dwellings; (b) that have Vehicle Identification
Numbers (VIN), (c) that are sided predominately (more than 50%) with panel
Siding, and (d) that subsequent to their manufacture, are transported to a
remote location for final installation. Manufactured homes (such as modular
homes) that do not meet these criteria are considered Site-Built Homes but may
elect to be treated as Mobile Homes if they are sided predominantly with panel
siding. Any such election must be made at the time the Claimant submits his or
her Claim Form.
1.34 NOTICE ADMINISTRATOR means the firm(s) hired to implement the
Notice Plan.
1.35 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT means the
Court-approved Notice to Class Members of Proposed Settlement in the form
attached as Exhibit E to this Agreement and any additional notices agreed to by
the Parties that may be ordered by the Court.
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1.36 NOTICE PLAN means the plan and schedule for providing
class-wide notice of the Settlement and certification of the Settlement
Class, including the Notice of Proposed Class Action Settlement and summary
forms of notice, all as more particularly described in Exhibit F hereto.
1.37 OPT-OUT PERIOD means the 60-day period from the Initial Notice
Date.
1.38 PARTIES means Plaintiffs, the Settlement Class and the
Defendants.
1.39 PERSON means any individual or legal entity.
1.40 PLAINTIFFS means the individuals acting as named
representative Plaintiffs in this Action.
1.41 PLAINTIFFS' CLASS COUNSEL OR CLASS COUNSEL includes
Plaintiffs' Co-Lead Class Counsel, and the following additional attorneys:
Daniel Berger, Berger Law Firm, 912 Frick Building, 437 Grant Street,
Pittsburgh, Pennsylvania 15219; William H. Garvin, III of Weller, Green, Toups,
& Terrell, 2937 Kerry Forest Parkway, Suite A-2, Tallahassee, Florida 32308;
Kenneth Gilman of Gilman & Pastor, One Boston Place, 28th Floor, Boston,
Massachusetts 02108; Garrett M. Hodes of Humphrey, Farrington & McClain, P.C.,
221 West Lexington, Suite 400, P.O. Box 900, Independence, Missouri 64051;
Clinton Krislov of Krislov & Associates, Ltd., Suite 810, 222 North LaSalle
Street, Chicago, Illinois 60601-1086; Jonathan Nachsin of Law Offices of
Jonathan Nachsin, 200 North LaSalle Street, Suite 2100, Chicago, Illinois
60601-1095; Ellen M. Doyle of Malakoff, Doyle & Finberg, PC, The Frick Building,
Suite 200, Pittsburgh, Pennsylvania 15219, Beverly C. Moore, Jr. of Moore &
Brown, 4900 Massachusetts Avenue, N.W., Suite 230, Washington, D.C. 20016, and
Steve Toll of Cohen, Milstein, Hausfeld & Toll, 999 Third Avenue, Suite 3600,
Seattle, Washington 98104.
1.42 PLAINTIFFS' CO-LEAD CLASS COUNSEL OR CO-LEAD CLASS COUNSEL
means the following counsel:
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Charles R. Watkins John W. Sharbrough, III
SUSMAN & WATKINS M. Stephen Dampier
Two First National Plaza THE SHARBROUGH LAW FIRM, LLC
Suite 600 P.O. Box 996
Chicago, Illinois 60603 Mobile, Alabama 36601
David J. Guin Steven A. Martino
DONALDSON, GUIN & SLATE, LLC JACKSON, TAYLOR & MARTINO, P.C.
2900 Highway 280 P.O. Box 894
Suite 230 Mobile, Alabama 36601-0894
Birmingham, Alabama 35223
SPECIAL COUNSEL FOR MOBILE
HOME OWNERS:
Justin O'Toole Lucey
JUSTIN O'TOOLE LUCEY, P.A.
415 Mill Street
Mt. Pleasant, South Carolina 29464
1.43 PRELIMINARY APPROVAL means the Court's Order, substantially in
the form of Exhibit G hereto, certifying the Settlement Class, granting
preliminary approval of this Agreement and approving the Notice Plan.
1.44 PRIOR CLAIM means a claim or request submitted to the
Defendants, or any of them, for compensation or reimbursement because of damage
to Siding (whether or not in the form of a warranty claim) prior to the date of
the entry of the Final Order and Judgment. A Prior Claim does not include a
legal proceeding described in PARA 1.50(b).
1.45 PROPERTY or PROPERTIES means any structure including homes
(whether a Mobile Home or a Site-Built Structure), garages, outbuildings, town
houses, condominiums, apartments, commercial or industrial structures, and other
types of buildings or structures onto which Siding is currently installed or on
which an Unreimbursed Repair was performed, except for fences and detached
structures not used for garages with a floor area of less than 65 square feet.
1.46 RELEASEES means Defendants, including their successors,
parents, subsidiaries, divisions, or affiliates, and their officers, directors,
stockholders, partners, agents, servants, successors, subrogees and assigns and
their respective insurers.
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1.47 RELEASING PARTIES means all Settlement Class Members who have
not timely opted out of the Settlement Class, on behalf of themselves and any
Person(s) claiming by or through them.
1.48 REPLACEMENT COST means the average cost per square foot of
surface area of Siding in the State where the Property is located, as agreed
upon by the Parties with reference to current R.S. Means Co. data, including all
materials, labor and incidental costs as required to remove, replace and repair
Siding panels or boards that have sustained Damage (including an appropriate
adjustment for waste and overlap) with new Siding and to repaint and otherwise
restore the exterior of the Property to the extent reasonably necessary to make
the repair cosmetically acceptable and in conformity with good building
practices and all applicable laws, building codes, and zoning regulations. The
initial Replacement Cost for each State has been determined by R.S. Means Co. as
set forth in Exhibit H attached to this Agreement. The initial Replacement Cost
shall be adjusted annually on or about each anniversary of the execution of this
Agreement in accordance with a mutually agreeable formula that takes into
account increases and reductions, if any, in the cost of any of its elements.
The cost actually incurred to obtain permits for Siding repair or replacement
work conducted in conjunction with this Agreement also shall be reimbursed by
Defendants to Eligible Claimants - up to a maximum amount of $100 each - upon
presentation of proof of the expenditure.
1.49 SETTLED CLAIM means every claim, action, cause of action,
liability, right, demand, suit, matter, obligation, damage, loss or cost,
including consequential damages to Property or Properties and any claim for
other damages, losses or costs, of every kind and description, that the
Releasing Parties now have, have had in the past or may have in the future
against any of the Defendants arising out of the subject matter of the Action,
whether known or unknown, asserted or unasserted, which if known to the
Releasing Parties would have materially affected their Settlement with the
Releasees and which accrue or have accrued as a result of having Defendants'
Hardboard Siding on the Releasing Parties' Property. Without limiting the scope
of the foregoing, "Settled Claims" shall include:
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a. property damage to Class Members' Siding or to the
structure on which the Siding is installed or to any
surrounding property;
b. any claim for breach or violation of or for benefits
conferred by any federal, state, common or other law
or statute, regulation or ordinance;
c. any claim for breach of any duty imposed by law, by
contract or otherwise, including without limitation
breach of warranty express or implied or other
contract, promissory or equitable estoppel or
principles of unjust enrichment;
d. any claim based on principles of tort law or other
kind of liability, including without limitation,
those based on principles of strict product
liability, negligence, reliance, racketeering, fraud,
conspiracy, concerted action aiding and abetting,
veil-piercing liability, alter-ego or successor
liability, consumer fraud, negligent
misrepresentation, intentional misrepresentation, or
other direct or derivative liability;
e. any claim related to alleged defects or inadequacies
in the design, manufacture, advertising, product
literature, sale, distribution or marketing of
Hardboard Siding;
f. any claim for declaratory or injunctive relief
associated with the above;
g. any claim for diminution in value of or consequential
or collateral damage including, but not limited to,
claimed damage to the Siding or to any component of
the structure on which the Siding is installed or to
any surrounding property;
h. any claim for emotional damages, mental anguish, or
similar claim arising out of Damage to the Siding or
because of the installation of the Siding on the
Property; and
i. any claim for penalties, punitive damages, exemplary
damages, or any claim for damages based upon a
multiplication of compensatory damages associated
with the above.
"Settled Claims" shall not include (a) any claim for bodily
injury (including wrongful death); or (b) claims for pain and suffering,
emotional distress, mental anguish, or similar injuries associated with such
bodily injury to the extent allowed by law; or (c) subject to Section 13.2,
claims against parties who are not Releasees under the terms of this Settlement
Agreement.
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1.50 SETTLEMENT CLASS OR CLASS is a class composed of all Persons
who own or formerly owned Property in the United States or its Territories on
which Hardboard Siding has been installed at any time after May 15, 1975 and
before May 15, 2000, except:
a. All Persons who, in accordance with the terms of this
Agreement, properly execute and timely file during
the Opt-Out Period a request for exclusion from the
Settlement Class;
b. All Persons represented by counsel who, individually
or as members of a class, initiated against
Defendants, or any of them, legal proceedings that
were resolved prior to the Initial Notice Date by
settlement, judgment, release, dismissal or other
final disposition resulting in the termination of the
proceedings against the Defendant.
1.51 SETTLEMENT CLASS MEMBER OR CLASS MEMBER means a member of the
Settlement Class.
1.52 SETTLEMENT DATE means the date on which all of the following
have occurred: (a) the entry of the Final Order and Judgment without material
modification, and (b) finality for the Final Order and Judgment by virtue of
that order having become final and non-appealable through (i) the expiration of
all allowable appeal periods without an appeal having been filed; (ii) final
affirmance of the Final Order and Judgment on appeal or final dismissal or
denial of all such appeals, including petitions for review, rehearing or
certiorari.
1.53 SIDE of a Property means all exterior Hardboard
Siding-surfaced areas of a Property facing the same direction.
1.54 SITE-BUILT STRUCTURES or SITE-BUILT HOMES means all Properties
built on-site and also includes any other Property subject to this Settlement
Agreement except for Mobile Homes.
1.55 UNREIMBURSED REPAIR COSTS or PRIOR UNREIMBURSED REPAIR means
the properly documented out-of-pocket expenses reasonably incurred by an
Eligible Claimant to repair or replace Hardboard Siding that had sustained
Compensable Damage.
2. CERTIFICATION OF SETTLEMENT CLASS
2.1 The Parties to this Agreement agree for settlement purposes
only that this Action shall be certified and proceed as a class action under
Ala. R. Civ. P. 23(b)(3), consisting of all
17
members of the Settlement Class, with the named Plaintiffs as the Settlement
Class representatives and Plaintiffs' Class Counsel as counsel for the
Settlement Class.
3. SUBMISSION FOR PRELIMINARY APPROVAL
3.1 As soon as practicable after execution of this Agreement, the
Parties shall jointly submit this Agreement, through their respective attorneys,
to the Court for Preliminary Approval.
4. ADMINISTRATIVE EXPENSES OF SETTLEMENT
4.1 In addition to their obligation to timely make Damage
Payments, Defendants shall pay all Administrative Expenses incurred in
connection with the Settlement, including but not limited to each of the
following:
a. The reasonable costs and expenses incurred by the
Notice Administrator in connection with the
preparation and execution of the Notice Plan, in the
manner and to the extent described in Paragraph 14.1,
below;
b. The reasonable costs and expenses incurred by the
Independent Inspector firm in the manner and to the
extent described in Paragraph 6 below;
c. All costs and expenses incurred in connection with
the establishment, implementation and administration
of the Settlement Agreement;
d. All costs and expenses incurred in connection with
the Defendants' obligation under Paragraph 7.2 to
provide copies of the Owner Maintenance Instructions
and the Owner's Installation Check List to Property
owners;
e. The amounts approved by the Court as reasonable
Attorneys' Fees and Expenses, in the manner and to
the extent described in Paragraph 14.3, below; and
f. Any Court-approved incentive award to be paid to the
Settlement Class Representatives, in the manner and
to the extent described in Paragraph 14.4, below.
4.2 Defendants shall have thirty (30) days from the actual receipt
of any demand for payment by the Notice Administrator and/or Independent
Inspector within which to object to the demand, or any portion thereof, or to
the reasonableness of any cost, charge or expense included therein. If such a
challenge is made, Defendants shall promptly pay the portion of the expense, if
any, to which it has no objection and attempt to resolve any differences that
remain with the
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assistance of Class Counsel. If Class Counsel, Defendants and any involved third
parties are unable to resolve the dispute, the same shall be submitted to the
Court in the Action for final and binding resolution. Defendants shall be deemed
to have waived any objection to a claim for payment that is not made within
thirty (30) days of its receipt.
4.4 Payments to Eligible Claimants under the Settlement Agreement
shall be made as provided in Paragraph 5.
5. SETTLEMENT AGREEMENT AND CLAIMS ADMINISTRATION PROGRAM
5.1 Before the Initial Notice Date, the Notice Administrator shall
establish and staff a telephone system in a manner reasonably agreeable to the
Parties to answer a toll-free telephone number established to respond to
inquiries by Settlement Class Members regarding the settlement and/or the
Settlement Agreement. The telephone system will be designed so as to prevent
placing callers on hold for inordinate amounts of time. The Notice Plan shall
direct Persons who believe they may be Settlement Class Members to call the
toll-free number to request a Class Notice and Claim Forms, or to obtain the
Class Notice and Claim Forms from an Internet web site, which also shall be
established no later than the Initial Notice Date.
5.2 Promptly following the execution of this Agreement, Defendants
shall establish, to the reasonable satisfaction of Class Counsel, a properly
staffed and equipped Claims Office to process in a timely way all Claims under
the Settlement Agreement and to coordinate with the Notice Administrator the
establishment and operation of the toll-free number, the Internet web site, and
the dissemination of the Class Notice and related press releases and press kits
as called for by the Notice Plan. Defendants shall maintain such a Claims Office
for so long as necessary to process all Claims filed under the Settlement
Agreement.
5.3 In the event Settlement Class Members contact Defendants
regarding a potential warranty claim, or otherwise without apparent knowledge of
this Settlement Agreement, Defendants shall promptly reply to any communications
or inquiries from such Persons by advising them of this Settlement Agreement and
either provide them with a claim packet or with
19
the toll-free telephone number from which such claim packets may be obtained
from the Notice Administrator. All Class Notice forms and claims packets shall
be sent to the requesting party by first class mail.
5.4 A computer database shall be established and maintained by the
Claims Office and the database shall collect and retain all information
necessary to determine the Claimant's eligibility for participation in the
settlement and the disposition of the Claim. Plaintiffs' Class Counsel shall be
provided full access to the information in this database.
5.5 An Eligible Claimant must properly complete and timely file a
Claim Form. In order for the claims office to initiate the processing of a Claim
Form, Claimants must provide the following basic information:
a. name(s) of Claimant(s);
b. mailing address;
c. address of Property for which a Claim is being
submitted (if different from the mailing address);
d. evidence that the Claimant's siding is Hardboard
Siding manufactured by the Defendants, in one of the
forms delineated in Paragraph 5.6 below; and
e. verification that the Claimant is (or with respect to
Claims involving a Prior Claim or a Claim for
Unreimbursed Repair, was) the owner of the Property
(examples of sufficient verification of property
ownership include property tax bills for the current
year, deeds or deed of trust) or that the Claim has
been properly assigned to the Claimant.
5.6 When submitting a Claim Form, the Claimant must also provide
one of the forms of proof set forth in subparagraphs (a) through (e) that the
Claimant's siding is Abitibi or ABT Siding, or in the alternative, a check in
accordance with subparagraph (f), below:
a. a 2" x 2" square or 2" diameter round sample of the
Siding from the structure in question sufficient to
identify the Product as manufactured by Defendants;
or
b. a prior communication from one of the Defendants
(such as where a prior warranty claim was considered)
which acknowledges that the siding on the subject
Property is Abitibi or ABT Siding; or
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c. an invoice or warranty, along with photographs of the
exterior walls of the Property, that shows that the
siding on the Property is Abitibi or ABT Siding; or
d. a photograph depicting the back of the siding and
showing the identifying stamp of the ABT or Abitibi
Defendants; or
e. such other evidence that reasonably identifies the
Siding as ABT or Abitibi Siding.
f. If the Claimant does not provide one of the proofs of
product identification described above, s/he may have
the product identified by sending to the Claims
Office a check or money order in the amount of $50
made payable to the Independent Inspector firm. In
the event that the Independent Inspector identifies
the product as Abitibi/ABTco hardboard siding, the
Inspector shall proceed to inspect the property in
accordance with the terms of Section 6, below, and
the $50 shall be refunded to the Claimant with the
payment of his/her Claim.
Notwithstanding any other provisions of this paragraph, the
requirement of proof that the siding in question is Abitibi or ABT Siding is
satisfied if the Defendants' records or warranty claims database confirm that
the siding on the subject property is Abitibi or ABT Siding.
5.7 Processing of each of the Claim Forms by the Claims Office
shall commence when the Claimant provides the Claims Office with the information
required by Paragraphs 5.5 and 5.6, above. The Claims Office shall advise any
Claimant who fails to submit information required by the Claim Form, including
the information specified in Paragraphs 5.5 and 5.6, of the respects in which
the Claim Form is incomplete and request the Claimant to supply the missing
information. Any request by the Claims Office must be in writing and mailed to
the Claimant by first class mail within forty-five (45) days after the receipt
of the Claim Form; if no such request is made, processing of the Claim Form
shall commence prior to the expiration of the 45 day period; provided, that no
Claim will be eligible for payment until the information required by Paragraphs
5.5 and 5.6 has been supplied.
5.8 If a request for information described in Paragraphs 5.5, 5.6
and 5.7 is timely made by the Claims Office but not complied with by the
Claimant within one hundred and eighty
21
(180) days after the mailing of such request, absent reasonable justification
for the delay, the Claim may be denied by written notice to the Claimant,
without prejudice to the right of the Claimant to file within the Claim Period
an additional Claim for the same or different Damage. The filing date for the
subsequent Claim, if any, will not relate back to the date of the earlier Claim;
provided, that the Non-Painting Deduction, if any, applicable to such Claim
shall be governed by Paragraph 1.22(b)(vi).
5.9 All Claimants with Compensable Damage to Hardboard Siding
shall be paid in accordance with the Damage Payment calculation provided for in
this Settlement Agreement, without regard to contrary requirements that may have
been set forth in any prior warranty applicable to such Siding and without
regard to any legal or factual defenses Defendants might have been able to
assert to such payment in the absence of this Agreement. In this regard, and for
purposes of this Settlement Agreement only, Defendants specifically waive as to
the Settlement Class Members all legal and factual defenses that might have been
asserted against such claim, including without limitation, defenses asserting a
lack of causation, intervening or superseding cause, lack of privity, lack of
reliance, the "economic loss" rule, contributory negligence, assumption of risk,
failure to make timely demand, that the express warranty was not the "basis of
the bargain," or because of a statute of limitations or repose.
5.10 Defendants may make one offer of settlement to a Claimant (the
"Accelerated Payment Offer") for each Claim submitted. For the first six (6)
months after the Fairness Hearing, the Defendants shall have a reasonable period
of time (not to exceed 45 days) after a substantially complete Claim Form is
received by the Claims Office in which to make the Accelerated Payment Offer.
After that six-month period, Defendants shall have thirty (30) days after a
substantially complete Claim Form is received by the Claims Office in which to
make the Accelerated Payment Offer. For purposes of deciding whether they will
make such an offer, Defendants may evaluate the Claim by making a single visit
to the Property at such reasonable time as may be agreed to by the Claimant to
obtain additional details about his or her Claim. After such review and
evaluation, and in their sole discretion, Defendants may elect to make a
22
written settlement offer to Claimant to resolve the Claim without resort to the
independent inspection procedure under Section 6, below. Any written offer under
Paragraph 5.10 or 5.11 shall include the Accelerated Payment check and shall be
communicated to Claimant in substantially the forms attached as Exhibit I and
Exhibit J and shall include a detailed explanation of the basis for and
calculation of the Accelerated Payment Offer.
5.11 If the amount of the Damage Payment under this Settlement
Agreement reasonably can be determined from the information presented to the
Defendants in the Claim Form, or if the Defendants inspect the property of the
Claimant, the Accelerated Payment Offer shall be calculated on the same basis as
the Damage Payment that would otherwise be due under this Settlement Agreement.
If the amount of the Damage Payment cannot reasonably be calculated from such
information, the amount of the Accelerated Payment Offer shall be set by the
Defendants in good faith, applying the compensation principles set forth in this
Settlement Agreement.
5.12 Any Claimant who receives an Accelerated Payment Offer shall
have forty-five (45) days after its receipt to decline the offer. Any Claimant
who deposits or cashes an Accelerated Payment check shall have the unilateral
right, for an additional period of thirty (30) days after depositing or cashing
the Accelerated Payment check, to revoke his or her acceptance by returning the
amount of the check and electing in writing to have his or her Claim inspected,
processed and determined under Section 6, below. If a Claimant does not decline
an Accelerated Payment Offer within forty-five (45) days after its receipt, the
Accelerated Payment Offer shall be deemed accepted; provided, however, if the
Claimant was absent from the Property or did not receive the check or
Accelerated Payment Offer or failed to return the amount of the check due to
mistake or excusable neglect, the forty-five day revocation period shall run
from the date the Claimant returns to the Property, receives the check, or
discovers the mistake, whichever is sooner.
5.13 Class Counsel, including their experts, consultants or agents,
shall be allowed reasonable access to review the records of Defendants that
pertain to the Accelerated Payment
23
Offers. If at any time Class Counsel are not reasonably satisfied that
Defendants have implemented and are administering the process for the
Accelerated Payment Offers in conformance with this Agreement, Class Counsel
shall advise Defendants of their concerns. If Defendants fail to satisfy these
concerns, Class Counsel may, at their sole discretion, bring the matter to the
attention of the Court by noticed motion. In its discretion, the Court may
conduct a hearing on any objections raised by Class Counsel, and if the Court
finds that Defendants' have failed to implement the Accelerated Payment Offer
process in good faith, the Court may provide such relief as it deems proper
under the circumstances, including the revocation of the Accelerated Payment
Offer process.
5.14 All Claims that are not resolved by an Accelerated Payment
Offer shall be inspected by the Independent Inspector in accordance with the
provisions of Paragraph 6, below.
5.15 Claims shall be processed and paid in a reasonably prompt
manner, substantially in the order in which they are received; provided,
however, that priority may be given to Claimants who have listed, posted or
advertised their Property for sale and priority shall be given to Claimants who
are experiencing water intrusion into their homes which they have contracted to
repair. The Claims Office shall calculate the Damage Payment due Eligible
Claimants in accordance with the terms of this Settlement Agreement and shall
make such payments directly to Eligible Claimants or their assignees. The amount
of such Damage Payments shall be entered into the Claims Office's computer data
system. Upon written request by Class Counsel, a listing of such payments shall
be provided to Plaintiffs' Class Counsel no less frequently than quarterly.
5.16 Any Damage Payment made on the basis of the results of the
inspection of the Independent Inspector in an amount greater than five-hundred
dollars ($500) shall be made in two installments. The first installment shall be
in an amount equal to eighty percent (80%) of the total Damage Payment and it
shall be paid at the time the Claimant is advised of the amount of his or her
Compensable Damage as determined by the Independent Inspector's inspection. The
second installment equal to the remaining twenty percent (20%) shall be paid
promptly upon the Claimant's submission to the Claims Office of satisfactory
evidence of the Claimant's purchase
24
of any type of replacement siding or other exterior wall cladding to repair the
areas of Compensable Damage to the Claimant's Property or other evidence that
repairs have been made.
5.17 Any person who acquires Property from a Class Member after the
Initial Notice Date may, if he or she so elects, succeed to all the rights and
obligations of the Class Member under this Settlement Agreement.
5.18 All forms of notice, claims, claim denial, etc. used by the
Defendants to explain the rights of Class Members under the Settlement shall be
communicated in a timely manner, shall be clear, drafted in "plain English" and
approved in advance by Co-Lead Class Counsel.
5.19 Any Eligible Claimant who suffers additional Damage to his/her
Hardboard Siding that has not already been the subject of a Claim hereunder may
submit up to five additional Claims within the Settlement Agreement Claim
Period, not to exceed one every twelve months; provided, however, that
Defendants shall not be obligated to pay more than once for Damaged Siding for
which a Claimant previously has been compensated.
6. INDEPENDENT INSPECTION
6.1 The Property of any Eligible Claimant filing a Claim that is
not satisfied by an Accelerated Payment Offer shall be inspected by the
Independent Inspector and the Damage Payment shall be calculated and the Claim
shall be paid in accordance with the results of that inspection. The Claims
Office shall request an inspection of the Claimant's Property by the Independent
Inspector within the earlier of fourteen (14) days following a Claimant's
rejection of an Accelerated Payment Offer, or, if an Accelerated Payment Offer
is not made, forty-five (45) days after a substantially complete Claim Form is
received by the Claims Office; and the inspection shall occur as soon thereafter
as reasonably practicable. The Independent Inspector will use its best efforts
to ensure that inspections occur within forty-five (45) days after being
requested by the Claims Office to conduct an inspection.
6.2 In making the inspection, the sole duties of the Independent
Inspector shall be: (a) to verify that the Claimant's siding is Hardboard Siding
if requested to do so pursuant to Paragraph 5.6(f) or by Defendants (at their
expense); (b) to calculate and record the amount of
25
Damage and Excluded Damage on the Site Built Structures and the number of panels
on Mobile Homes evidencing Damage; and (c) to report his or her findings to
Claims Office. The Independent Inspector shall not be made aware of the
existence and terms of any Accelerated Payment Offer made to the Claimant. The
findings of the Independent Inspector shall be made in writing in the Field
Inspection Report, which shall be mailed or otherwise transmitted to the Claims
Office within ten (10) business days following the completion of the inspection.
6.3 If Defendants do not make an Accelerated Payment Offer, the
Defendants shall pay the cost of inspection. If Defendants do make an
Accelerated Payment Offer which is rejected by Claimant, the cost of the
Independent Inspection also shall be borne by Defendants unless the amount of
the Accelerated Payment Offer exceeds the Damage Payment, in which case the
inspection fee shall be borne by the Claimant up to a maximum of $150 and
deducted from the Damage Payment.
6.4 Within thirty (30) days of receipt of the Independent
Inspector's Field Inspection Report, the Claims Office shall send to the
Claimant a check for the first installment of the Damage Payment due under
paragraph 5.16, calculated in accordance with the results of the Independent
Inspection, a copy of the Field Inspection Report and an explanation of the
calculation of the Damage Payment and the Claimant's rights with respect
thereto.
6.5 If a Claimant is dissatisfied with the determinations made by
the first Independent Inspector, the Claimant may request a second independent
inspection by so notifying the Claims Office. The notification must be in
writing and postmarked no later than thirty (30) days following the Claimant's
receipt of the first installment Damage Payment check or written denial of the
Claim, and the Claimant must return the Damage Payment check to the Claims
Office with the notification. If the check was for less than $150, the Claimant
must also send a check made payable to the Claims Office for the difference
between the Damage Payment and $150 (the amount of the inspection fee for which
Claimant is responsible). Promptly upon its receipt of a timely objection and
check from the Claimant, the Claims Office shall order a second inspection of
the Claimant's Property. The second inspection shall be conducted by a different
individual
26
inspector from the Independent Inspection firm, and the second inspector shall
not be made aware of the existence or results of the first inspection.
6.6 If a Claimant requests a second inspection, his or her Damage
Payment will be calculated on the basis of the results of whichever of the two
inspections results in the greater award. The Damage Payment will be reduced by
the amount of the second inspection fee unless the Second Inspection results in
a payment to the Claimant that is 25% or more greater than the payment that was
calculated on the basis of the original Independent Inspection, in which event
the amount of the second inspection fee will be refunded to the Claimant or will
not be deducted from the Damage Payment, as appropriate.
6.7 In the event any Party reasonably believes that any of the
Independent Inspectors are not properly applying any of the terms of Paragraph 6
(including the inspection protocol attached as Exhibit K), or in the event there
is a question about the application of the terms of this Agreement by any of the
Independent Inspectors, then: (a) the objecting Party's counsel shall notify
counsel for the other Parties to this Agreement in writing of the concern; (b)
Plaintiffs' Co-Lead Class Counsel and counsel for Defendants shall confer within
thirty (30) days of receipt of the written notification to try to resolve the
concern; and (c) in the event Plaintiffs' Co-Lead Counsel and counsel for
Defendants cannot resolve the concern, then the dispute shall be submitted to
the Court or other third party mutually agreeable to the Parties for resolution.
7. ENHANCED WARRANTY FOR LATER PURCHASERS; ADDITIONAL EFFORTS TO PROVIDE
INSTALLATION AND MAINTENANCE INSTRUCTIONS TO PROPERTY OWNERS
7.1 As part of this Settlement Agreement, upon the entry of the
Final Order and Judgment in this Action, the ABT Defendants agree to provide the
Enhanced Warranty to any person who installs the Hardboard Siding within two (2)
years after the Initial Notice Date in a form substantially equivalent to the
Enhanced Warranty attached hereto as Exhibit D, provided that the terms of such
Enhanced Warranty may be changed within such two (2) year period in order to
bring it into compliance with any subsequent changes in federal or state law.
27
7.2 The ABT Defendants also agree to adopt and to make available
to each Class Member whose identity becomes known to them,and to use their best
efforts to provide to each Person who installs Hardboard Siding within two (2)
years after the Initial Notice Date,a copy of their Owner Maintenance
Instructions, Installation Instructions and Owner's Installation Check List in
substantially the form attached hereto as Exhibits L, M and N.
7.3 As to any purchaser who purchases Hardboard Siding
manufactured by the ABT Defendants subsequent to the entry of the Initial Notice
Date, whether or not covered by the Settlement Agreement, the ABT Defendants
agree not to assert as a defense to any claim on account of damage to such
Siding that the Siding was improperly installed or maintained so long as such
Hardboard Siding was installed or maintained, as the case may be, in compliance
with the installation and maintenance instructions attached hereto; provided,
however, that such instructions may be changed to reflect changes in good
building practices in the area in which the Siding is installed.
8. RIGHT TO CONDUCT AUDITS
8.1 Plaintiff's Co-Lead Class Counsel shall have the right to
audit the Defendants' Accelerated Payment Offers.
8.2 Additionally, Plaintiffs' Class Counsel may generally audit
the Defendants' compliance with the terms of this Agreement. In this connection,
the Defendants' shall pay the costs and fees incurred by Class Counsel in
performing such audits, including the costs and fees charged by any consultants
they may retain to assist them, up to a maximum total cost for all such audits
under paragraphs 8.1 and 8.2 of $40,000. The timing of any and all audits under
this Paragraph 8.2 shall be at the sole discretion of Plaintiffs' Co-Lead Class
Counsel, provided that the sole issue to be considered in connection with any
such audit is whether Defendants have properly implemented and complied with the
terms of this Settlement Agreement.
9. NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
9.1 Upon Preliminary Approval, and as the Court may otherwise
direct, the Parties shall cause the Notice of Proposed Class Action Settlement
describing this proposed Settlement
28
Agreement and the Fairness Hearing to be provided to the members of the
Settlement Class as provided in this Section and in accordance with the Notice
Plan or as otherwise approved or directed by the Court.
9.2 The mailed Notice, in a form substantially in the form of
attached Exhibit E and approved by the Court, shall be mailed, first class
postage prepaid, to each member of the Class identified by the Parties through
reasonable efforts. The Notice shall be made available for distribution and
publication in Spanish as well as English where appropriate or upon request.
9.3 No later than the Initial Notice Date, the Notice
Administrator shall cause a nationwide toll-free telephone facility and Internet
website to be established, in accordance with Paragraph 11.1 below. The
telephone facility shall be capable of (a) receiving requests for the long form
of the Notice of Proposed Class Action Settlement and other materials described
in this Section; (b) providing generalized information concerning deadlines for
opt-outs, proofs of claim, and presentations to the Court at the Fairness
Hearing; and (c) mailing the materials to Class Members as provided in this
Paragraph. The facility may, as reasonable and appropriate under instructions
from Plaintiffs' Co-Lead Class Counsel, refer individual inquiries to
Plaintiffs' Class Counsel for response. The facility shall maintain records of
all mailings and such other information in such form and in such manner as
Plaintiffs' Co-Lead Class Counsel and Defendants jointly direct.
9.4 The Notice of Proposed Class Action Settlement shall be mailed
to additional Settlement Class Members whose identities or addresses become
known during the term of the Agreement. The Notice of Proposed Class Action
Settlement shall also be distributed to such contractors, builders, distributors
and mobile home manufacturers who are reasonably determined by Defendants and/or
Plaintiffs' Class Counsel to have been involved in the sale, distribution,
installation or use of Defendants' Hardboard Siding.
29
10. CLASS MEMBERS' RIGHT OF EXCLUSION; DEFENDANTS' RIGHT OF TERMINATION
10.1 A Settlement Class Member may opt out of the Class during the
Opt-Out Period. To exercise the opt-out right set forth in this Paragraph, the
Settlement Class Member must complete, sign, and return a request for exclusion.
The request must be signed by the Settlement Class Member and must state the
address of the Settlement Class Member's Property(ies) on which Hardboard Siding
has been installed and the number of units of residential Property or commercial
structures clad with the Siding. Such request must be postmarked on or before
the end of the Opt-Out Period and sent to the Notice Administrator (who shall
provide one copy of the opt-out notice to Co-Lead Class Counsel and one copy to
Defendants). Any Settlement Class Member who elects to opt out of the Settlement
Class pursuant to this Paragraph shall not be entitled to relief under or be
affected by this Agreement or the Settlement Agreement. Class Counsel may
contact opt-outs to assure that the opt-outs understand the effect of their
election.
10.2 To the extent that the statutes of limitations and/or repose
or any defense of lapse of time are tolled by operation of law, they will
continue to be tolled as to any Class Member who opts out of the Settlement
until ninety (90) days after receipt of the request to opt out or for such
longer period as the law may provide without reference to this Agreement.
10.3 In the event that, in the sole discretion of the Defendants,
the number of Class Members requesting exclusion reaches a level that in their
judgment threatens to frustrate the essential purpose of this Agreement,
Defendants may elect unilaterally to terminate this Agreement by so notifying
Plaintiffs' Class Counsel and the Court, not less than ten (10) days prior to
the date set for the Fairness Hearing.
10.4 If this Agreement is terminated by Defendants under Paragraph
10.3, the legal position of each Party shall be the same as it was immediately
prior to the execution of this Agreement; and each Party may exercise its legal
rights to the same extent as if this Agreement never had been executed.
30
11. NOTICE ADMINISTRATION
11.1 The Notice Administrator shall, under the supervision of the
Court, establish and maintain the toll-free number and answering system
(including live operators to the extent deemed necessary by mutual agreement of
Plaintiffs' Class Counsel and Defendants) and Internet web site, and shall mail
the Class Notice, appropriate claim forms attached hereto as Exhibits A, B and
C, and Request for Exclusion form to any Property Owner who requests a copy. The
substance and content of the answering system, Internet web site, and any
scripts or pre-selected or suggested dialog shall be subject to Defendants'
prior approval, provided that such approval is not unreasonably withheld. The
Notice Administrator shall maintain the records of its activities, including
logs of all telephone calls and a running tally of the number of Notice packages
mailed, in computerized database form and shall provide such periodic and
special reports and other such information as the Court, Plaintiffs' Class
Counsel (with notice to and consent of Defendants, provided such consent is not
unreasonably withheld) and/or Defendants may request. Plaintiffs' Co-Lead Class
Counsel and Defendants shall have the right independently to audit any work of
the Notice Administrator. The Notice Administrator may, as appropriate under
instructions from Plaintiffs' Co-Lead Class Counsel with the consent of counsel
for the Defendants, which shall not unreasonably be withheld, provide additional
information or refer individual inquiries to Plaintiffs' Class counsel for
response.
11.2 In the event Plaintiffs' Co-Lead Class Counsel or Defendants
reasonably believe that the Notice Administrator is not properly applying any of
the terms of this Agreement or in the event there is a question concerning the
application of the terms of this Agreement by the Notice Administrator, the
Parties shall meet and attempt to resolve the matter, failing which the dispute
promptly shall be submitted to the Court whose ruling shall be final and
non-appealable.
12. EXCLUSIVE REMEDY; DISMISSAL OF ACTION; JURISDICTION OF COURT
12.1 The terms and conditions of this Agreement shall constitute
the sole and exclusive remedy for any and all Settled Claims of Class Members
against Defendants; and upon entry of
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the Final Order and Judgment by the Court, each Class Member who has not opted
out of the Class shall be barred from initiating, asserting or prosecuting any
Settled Claims against Defendants.
12.2 From and after the entry of the Final Order and Judgment, no
action or proceeding may be brought by any public or private party on behalf of
a Class Member in which any Settled Claim is asserted or the subject of inquiry;
nor may any Class Member commence or remain a member of a class action or be the
beneficiary of any state or federal proceeding in which any of the Settled
Claims is asserted against any of the Defendants or is the subject of inquiry.
As soon as practicable after the Settlement Date, the Complaint in the Action
shall be dismissed.
12.3 The Court shall retain exclusive and continuing jurisdiction
of the Action, all Parties and Class Members, to interpret and enforce the
terms, conditions, and obligations of this Agreement, including any question
regarding the proper administration of the Settlement Agreement.
13. RELEASES
13.1 Upon entry of the Final Order and Judgment, each Settlement
Class Member who has not timely opted out of the Settlement Class shall, on
behalf of himself and any Person claiming by or through him as his heir,
administrator, devisee, predecessor, successor, representative of any kind,
shareholder, partner, director, owner or co-tenant of any kind, affiliate,
subrogee, assignee, or insurer (the "Releasing Parties"), and regardless of
whether any Class Member executes and delivers a written release, be deemed to
and does hereby release and forever discharge Defendants, and all of their
present and former divisions, predecessors, affiliates, subordinates, parents
and all of their present or former directors, officers, attorneys, employees,
servants, agents, successors, assigns, subsidiaries and insurers (including
co-insurers and re-insurers) solely with regards to policies held by Defendants
(all the foregoing parties being referred to as "Releasees"), of and from any
and all Settled Claims and related subrogation claims of the Releasing Party's
subrogees or insurance carriers not protected from waiver of subrogation by the
provisions of applicable insurance policies (or assigned or subrogated prior to
32
final approval of this Agreement and not subject to compromise or settlement by
the policyholder), except as may otherwise be provided in this Agreement.
13.2 The Releasing Parties specifically release and forever
discharge any other person or entity from any and all claims that arise out of
Hardboard Siding on the Property of a Releasing Party to the extent such claims
are based on alleged defects or inadequacies in the design, manufacture,
advertising, product literature, sale, distribution or marketing of Hardboard
Siding, all of which claims have been compromised and settled in their entirety
by Defendants under the terms of this Settlement Agreement; PROVIDED, HOWEVER,
Releasing Parties retain any other claim or cause of action (such as for
improper installation of the Siding) they may have against any other person or
entity not a Party to this Settlement Agreement.
13.3 If any Releasing Party brings an action or asserts a claim
against a Releasee contrary to the terms of this Release, the counsel of record
for such Releasing Party shall be provided with a copy of this Settlement
Agreement. If such Releasing Party does not within thirty (30) days thereafter
dismiss his or her action or claim and the action or claim is subsequently
dismissed or decided in favor of the Releasee, the Releasing Party shall
indemnify and hold harmless the Releasee from any and all costs and expenses,
including reasonable attorneys fees, incurred by the Releasee in the defense of
the action or claim.
13.4 Except as otherwise provided in this Paragraph 13, nothing in
this Agreement shall be construed in any way to prejudice or impair the right of
Defendants or members of the Settlement Class to pursue such rights and remedies
as they may have against third parties or under any applicable insurance
policies. Nothing in this Agreement limits the rights of members of the
Settlement Class to pursue claims for Hardboard Siding installed on a Property
subsequent to the Initial Notice Date.
14. EXPENSES AND FEES
14.1 The Defendants shall pay all reasonable fees and expenses
incurred in providing the Notice called for under this Agreement and under the
Notice Plan (or as otherwise ordered by the Court) (the "Notice Costs").
33
14.2 If the Court does not issue the Final Order and Judgment, or
in the event that for any reason the Settlement Date does not occur, Defendants
nevertheless shall continue to bear the costs of the Notice Plan and any other
expenses incurred to such point in implementing the terms of this Agreement,
along with any associated shutdown expenses, including any notices as the Court
may direct and Defendants shall not have the right to recoup such funds,
regardless of whether the Court issues the Final Order and Judgment. Plaintiffs'
Class Counsel and the Class Members shall bear no obligation for any costs
incurred in connection with the implementation of the Notice Plan or for any
other expenses incurred by the Defendants hereunder.
14.3 Within 7 days after the Settlement Date, the Defendants shall
pay on behalf of the Settlement Class Members reasonable attorneys' fees in the
amount of $7,000,000 and reasonable expenses in immediately available funds
subject to agreement between Co-Lead Class Counsel and counsel for Defendants in
an amount not to exceed $375,000.
14.4 Within 7 days after the Settlement Date, the Defendants shall
pay any Court approved incentive award to the currently named Plaintiffs in this
Action, and in FYOLA, ET AL. V. ABITIBI-PRICE, INC., ET al., Case No. GD
95-12854; JOHN EZZELL, ET AL. V. ABTCO., INC., CASE No. 9 7-CVS-167, Superior
Court Division of State of North Carolina; WILLIAM BEENY AND DEBORAH BEENY, ET
AL. V. ABTCO., INC., ET AL., Case No 99-CV-206193, Circuit Court of Jackson
County, Missouri; and JOEL UPTAIN, ET AL., V. ABTCO., ET AL., Case No.
99C-08974, District Court of Johnson County, Kansas, not to exceed $5,000 to any
one individual or married couple.
14.5 Class Counsel may designate two attorneys among them to assist
in the implementation of the duties of Class Counsel under this Settlement
Agreement. The ABT Defendants shall pay the reasonable fees of these two
attorneys (not to exceed their normal hourly rates) for time actually incurred
by them to accomplish the necessary duties of Class Counsel hereunder. Class
Counsel shall provide bills in accordance with the ABT Defendants' billing
guidelines to ABT Defendants and counsel for ABT Defendants.
14.6 In the event of an appeal of the Final Order and Judgment,
Defendants agree to pay simple interest on the fees due under paragraph 14.3 (at
the prime rate of interest in effect at
34
such time) from the date of the Final Order and Judgment until the Settlement
Date. The interest rate payable under this paragraph 14.6 shall be recalculated
every 6 months.
15. ENFORCEMENT OF AGREEMENT
15.1 In the event Defendants fail to perform under the Agreement or
to make a payment due and owing under the terms of this Agreement, Plaintiffs'
Co-Lead Class Counsel shall give Defendants written notice of the breach. If the
breach is not cured to the satisfaction of Class Counsel within sixty (60) days,
Plaintiffs' Class Counsel shall apply to the Court for relief.
15.2 In the event of a breach by Class Members or Defendants under
this Agreement, the Court may exercise all equitable powers over the breaching
Party(ies) to enforce this Agreement and the Final Order and Judgment
irrespective of the availability or adequacy of any remedy at law. Such powers
include, among others, the power of specific performance, contempt and
injunctive relief.
16. REPRESENTATIONS AND WARRANTIES
Defendants represent and warrant that (i) they have all requisite
corporate power and authority to execute, deliver, and perform this Agreement
and to consummate the transactions contemplated hereby, (ii) the execution,
delivery, and performance of this Agreement and the consummation by it of the
actions contemplated herein have been duly authorized by all necessary corporate
action on the part of such Defendants; (iii) their signatories to the Agreement
have full authority to sign on behalf of and to bind such Defendants to the
terms of the Agreement, and (iv) this Agreement has been duly and validly
executed and delivered by such Defendants and constitutes their legal, valid and
binding obligation.
17. MISCELLANEOUS PROVISIONS
17.1 This Agreement is for settlement purposes only. It has been
entered into for the purpose of compromising and settling a disputed matter and
is not an admission of a deficiency in the manufacture of Hardboard Siding, or
in the handling or administration of prior warranty claims or in the validity of
any denial or defense asserted by Defendants, nor is this Agreement an admission
by Plaintiffs of the validity of any of the Defendants' asserted defenses.
Neither
35
the execution of this Agreement, nor any of its provisions or attachments, nor
any action taken pursuant to its terms shall be admitted in this or any other
Action or proceeding as evidence or construed as an admission by either Party of
the validity of any claim or of any defense or of any facts alleged in this or
any other Action. This Agreement, however, may be admitted as evidence in any
action to enforce its terms.
17.2 Any certification of a conditional or preliminary Settlement
Class pursuant to the terms of this Agreement shall not constitute, and shall
not be construed as, an admission on the part of Defendants that this Action, or
any other proposed or class action, is appropriate for certification as a
litigation class pursuant to Ala. R. Civ. P. 23 or any similar state or federal
class action statute or rule. This Agreement is without prejudice to the rights
of Defendants to (a) seek to vacate the conditional certification order in this
Action should this Settlement not be approved or implemented for any reason; or
(b) oppose final certification in this Action should this Settlement not be
approved or implemented for any reason; or (c) use the certification of this
Settlement Class to oppose certification of any other proposed class arising out
of the issues and claims that are asserted herein.
17.3 This Settlement Agreement has been negotiated at arm's length
by Class Counsel and counsel for the Defendants. If a dispute should later arise
regarding any of its terms, no Party shall be deemed to be the drafter of any
particular provision of the Agreement; and no part of the Agreement shall be
construed against any Party. The Parties further acknowledge and agree that the
obligations and releases contained in the Agreement are fair and reasonable in
the context of the compromises negotiated.
17.4 Plaintiffs' Co-Lead Counsel and counsel for Defendants
regularly shall meet in person or by telephone conference to discuss the
implementation and execution of this Agreement and to attempt to resolve any
concerns of the Parties regarding its implementation.
17.5 This Agreement shall be construed under and governed by the
laws of the State of Alabama, applied without regard to its laws applicable to
choice of law.
36
17.6 Plaintiffs' Class Counsel have taken substantial discovery in
the Action, including extensive document review and depositions of the
Defendants' personnel with responsibility for claims processing and manufacture
of Siding. In addition, Class Counsel have engaged in extensive informal
discovery, have consulted with experts and interviewed many potential witnesses
with relevant knowledge of the issues in this case. Based on that formal and
informal discovery - as well as Class Counsel's knowledge of and participation
in other class actions involving hardboard siding - Class Counsel have evaluated
the factual bases for the claims asserted in the Action and as to many of the
defenses raised by Defendants to those claims. Class Counsel believe they have
engaged in more than sufficient discovery to evaluate the terms of this
Agreement on an informed basis and to negotiate a fair and reasonable resolution
of the Action.
17.7 This Agreement, including all attached Exhibits, shall
constitute the entire Agreement among the Parties with regard to the subject
matter of this Agreement and shall supersede any previous agreements and
understandings between the Parties. This Agreement may not be changed, modified,
or amended except in writing signed by Plaintiffs' Co-Lead Class Counsel and
Defendants' counsel and subject to Court approval. The Parties contemplate that
the Exhibits may be modified by subsequent agreement of counsel for all
Defendants and Plaintiffs' Co-Lead Class Counsel prior to dissemination to the
Class Members.
17.8 This Agreement may be executed by the Parties in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17.9 This Agreement, if approved by the Court, shall be binding
upon and inure to the benefit of the Class, the Parties, and their
representatives, heirs, successors, and assigns.
17.10 The headings of the Sections of this Agreement are included
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect its construction. References to a "Section" includes
reference to all paragraphs within the referenced Section.
37
17.11 Any notice, instruction, application for Court approval or
application for Court order sought in connection with this Agreement or other
document to be given by any Party to any other Party shall be in writing and
delivered personally or by facsimile followed by overnight courier, to the
following representatives of the parties:
FOR ABT DEFENDANTS: FOR ABITIBI DEFENDANTS:
Stephen Zovickian George F. Hritz
Michael I. Begert HOGAN & HARTSON, LLP.
Geoffrey M. Howard 100 Park Avenue
MCCUTCHEN, DOYLE, BROWN & New York, New York 10017
ENERSEN, LLP
Three Embarcadero Center
San Francisco, California 94111
FOR THE PLAINTIFF CLASS:
Charles R. Watkins John W. Sharbrough, III
SUSMAN & WATKINS M. Stephen Dampier
Two First National Plaza THE SHARBROUGH LAW FIRM, LLC
Suite 600 P.O. Box 996
Chicago, Illinois 60603 Mobile, Alabama 36601
David J. Guin Steven A. Martino
DONALDSON, GUIN & SLATE, LLC JACKSON, TAYLOR & MARTINO, P.C.
2900 Highway 280 P.O. Box 894
Suite 230 Mobile, Alabama 36601-0894
Birmingham, Alabama 35223
SPECIAL COUNSEL FOR MOBILE
HOME OWNERS:
Justin O'Toole Lucey
JUSTIN O'TOOLE LUCEY, P.A.
415 Mill Street
Mt. Pleasant, South Carolina 29464
17.12 Except as otherwise provided in this Agreement, any filing,
submission, Claim, notice or written communication shall be deemed filed,
delivered, submitted or effective as of the date of its postmark when mailed
first class, registered or certified mail, postage prepaid, properly addressed
to the recipient, or when delivered to any commercial one- or two-day
38
delivery service properly addressed to the recipient, or when actually received
by the recipient, whichever first occurs.
17.13 Throughout the Term of this Agreement, in accordance with
record retention policies that are reasonably satisfactory to Class Counsel,
Defendants will use reasonable efforts to preserve all records and evidence at
the Roaring River plant which are or could be relevant to, or could lead to the
discovery of relevant evidence, concerning the research and development of
Hardboard Siding, its marketing, distribution, and manufacture, and the
operation of its Hardboard Siding warranty claims process.
17.14 Each Class Member who files a Claim under the Settlement
Agreement and does not repair or replace the siding for which a Damage Payment
was made shall advise any direct, subsequent purchaser of the Property in
writing of the existence of this Settlement Agreement and the amount of the
Damage Payment.
17.15 In no event shall Defendants, any attorneys representing
Defendants, Plaintiffs or Plaintiffs' Class Counsel have any liability for
claims of wrongful or negligent conduct by any third party with respect to the
implementation of any term of this Settlement Agreement.
DATED this 3 day of May, 2000.
ABT DEFENDANTS:
ABTco, Inc. ABT BUILDING PRODUCTS CORP.
By: /s/ Curtis M. Stevens By: /s/ Curtis M. Stevens
----------------------------- ---------------------------------------
Its: Vice President, Finance and Its: Treasurer
Treasurer
---------------------------- ---------------------------------------
By: /s/ Stephen Zovickian By: /s/ Stephen Zovickian
---------------------------- ---------------------------------------
Stephen Zovickian Stephen Zovickian
McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
Three Embarcadero Center Three Embarcadero Center
San Francisco, California 94111 San Francisco, California 94111
(415) 393-2000 (415) 393-2000
Counsel for ABT Defendants Counsel for ABT Defendants
39
ABITIBI DEFENDANTS:
ABITIBI-CONSOLIDATED, INC., ABITIBI-PRICE CORP.
formerly ABITIBI-PRICE, INC.
By: /s/ Louis Veronneau By: /s/ Louis Veronneau
-------------------------------- --------------------------------------
Its: Managing Counsel Its: Managing Counsel
------------------------------- -------------------------------------
By: /s/ George F. Hritz By: /s/ George F. Hritz
------------------------------- -------------------------------------
George F. Hritz George F. Hritz
HOGAN & HARTSON, LLP HOGAN & HARTSON, LLP
100 Park Avenue 100 Park Avenue
New York, New York 10017 New York, New York 10017
(212) 916-7228 (212) 916-7228
Counsel for Abitibi Defendants Counsel for Abitibi Defendants
FOR THE PLAINTIFF CLASS:
/s/ Charles R. Watkins /s/ John W. Sharbrough, III
- ----------------------------------- -----------------------------------
Charles R. Watkins John W. Sharbrough, III
SUSMAN & WATKINS M. Stephen Dampier
Two First National Plaza THE SHARBROUGH LAW FIRM, LLC
Suite 600 P.O. Box 996
Chicago, Illinois 60603 Mobile, Alabama 36601
/s/ David J. Guin /s/ Steven A. Martino
- ----------------------------------- -----------------------------------
David J. Guin Steven A. Martino
DONALDSON, GUIN & SLATE, LLC JACKSON, TAYLOR & MARTINO, P.C.
2900 Highway 280 P.O. Box 894
Suite 230 Mobile, Alabama 36601-0894
Birmingham, Alabama 35223
SPECIAL COUNSEL FOR MOBILE HOME OWNERS:
/s/ Justin O'Toole Lucey
- -----------------------------------
Justin O'Toole Lucey
JUSTIN O'TOOLE LUCEY, P.A.
415 Mill Street
Mt. Pleasant, South Carolina 29464
40