Joint motionforpreliminaryapprovalofbp settlementwithdeclofazariex1_4_18_2012

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  • 1. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANAIn Re: Oil Spill by the Oil Rig “Deepwater * MDL NO. 2179 Horizon” in the Gulf of Mexico, on April * 20, 2010 * SECTION J *This document relates to all actions. * * HONORABLE CARL J. * BARBIER * * MAGISTRATE JUDGE * SHUSHAN *Bon Secour Fisheries, Inc., et al., individually * Civil Action No. 12-970and on behalf of themselves and all others *similarly situated, * SECTION J * Plaintiffs, * * HONORABLE CARL J.v. * BARBIER *BP Exploration & Production Inc; BP * MAGISTRATE JUDGEAmerica Production Company; BP p.l.c., * SHUSHAN * Defendants. THE PLAINTIFFS’ STEERING COMMITTEE’S AND BP DEFENDANTS’ JOINT MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, (2) SCHEDULING A FAIRNESS HEARING, (3) APPROVING AND ISSUING PROPOSED CLASS ACTION SETTLEMENT NOTICE, AND (4) BP’S MOTION FOR ADJOURNING THE LIMITATION AND LIABILITY TRIAL The Plaintiffs Steering Committee, through Interim Class Counsel, and the BP Partiesrespectfully move this Court to enter an order (1) preliminarily approving the proposedsettlement; (2) scheduling a fairness hearing; and (3) approving the proposed notice plan.Further, BP requests (without objection from the Interim Class Counsel) that the Court enter anorder adjourning the Limitation and Liability trial until after the fairness hearing has occurred.
  • 2. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 2 of 6 For the reasons set forth in the parties’ joint memorandum of law, the proposedsettlement represents a fair, reasonable, and adequate resolution of this dispute; the fairnesshearing can be scheduled expeditiously; and the proposed notice program complies with Rules23(c)(2)(B) and 23(e) of the Federal Rules of Civil Procedure, as well as due process. And as BPcontends, the Court has ample authority to enter the limited trial adjournment requested. A proposed order accompanies this Motion.April 18, 2012 Respectfully submitted,__/s/ Stephen J. Herman_______________ ___/s/ James Parkerson Roy________________Stephen J. Herman, La. Bar No. 23129 James Parkerson Roy, La. Bar No. 11511HERMAN HERMAN KATZ & COTLAR DOMENGEAUX WRIGHT ROY & EDWARDSLLP LLC820 O’Keefe Avenue 556 Jefferson Street, Suite 500New Orleans, Louisiana 70113 Lafayette, Louisiana 70501Telephone: (504) 581-4892 Telephone: (337) 233-3033Fax No. (504) 569-6024 Fax No. (337) 233-2796Interim Class Counsel/ Interim Class Counsel/Plaintiffs Liaison Counsel Plaintiffs Liaison CounselMDL 2179 MDL 2179 PLAINTIFFS’ STEERING COMMITTEE And PROPOSED CLASS COUNSEL ___________________________________________________Joseph F. Rice Conrad S.P. “Duke” WilliamsMOTLEY RICE LLC WILLIAMS LAW GROUP28 Bridgeside Blvd. 435 Corporate Drive, Suite 101Mount Pleasant, SC 29464 Maison Grand CaillouOffice: (843) 216-9159 Houma, LA 70360Telefax: (843) 216-9290 Office: (985) 876-7595 Telefax: (985) 876-7594
  • 3. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 3 of 6Brian H. Barr Robin L. GreenwaldLEVIN, PAPANTONIO, THOMAS, WEITZ & LUXENBERG, PCMITCHELL, ECHSNER & PROCTOR, PA 700 Broadway316 South Baylen St., Suite 600 New York, NY 10003Pensacola, FL 32502-5996 Office: (212) 558-5802Office: (850) 435-7045 Telefax: (212) 344-5461Telefax: (850) 436-6187Jeffrey A. Breit Rhon E. JonesBREIT DRESCHER IMPREVENTO & BEASLEY, ALLEN, CROW, METHVIN,WALKER, P.C. PORTIS & MILES, P. C.999 Waterside Drive, Suite 1000 218 Commerce St., P.O. Box 4160Norfolk, VA 23510 Montgomery, AL 36104Office: (757) 670-3888 Office: (334) 269-2343Telefax: (757) 670-3895 Telefax: (334) 954-7555Elizabeth J. Cabraser Matthew E. LundyLIEFF, CABRASER, HEIMANN & LUNDY, LUNDY, SOILEAU & SOUTH,BERNSTEIN, LLP LLP275 Battery Street, 29th Floor 501 Broad StreetSan Francisco, CA 94111-3339 Lake Charles, LA 70601Office: (415) 956-1000 Office: (337) 439-0707Telefax: (415) 956-1008 Telefax: (337) 439-1029Philip F. Cossich, Jr. Michael C. PalmintierCOSSICH, SUMICH, PARSIOLA & deGRAVELLES, PALMINTIER,TAYLOR HOLTHAUS & FRUGÉ8397 Highway 23, Suite 100 618 Main StreetBelle Chasse, LA 70037 Baton Rouge, LA 70801-1910Office: (504) 394-9000 Office: (225) 344-3735Telefax: (504) 394-9110 Telefax: (225) 344-0522Robert T. Cunningham Paul M. SterbcowCUNNINGHAM BOUNDS, LLC LEWIS, KULLMAN, STERBCOW &1601 Dauphin Street, P. O. Box 66705 ABRAMSONMobile, AL 36660 601 Poydras Street, Suite 2615Office: (251) 471-6191 New Orleans, LA 70130Telefax: (251) 479-1031 Office: (504) 588-1500 Telefax: (504) 588-1514
  • 4. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 4 of 6Alphonso Michael “Mike” Espy Scott SummyMORGAN & MORGAN, P.A. BARON & BUDD, P.C.188 East Capitol Street, Suite 777 3102 Oak Lawn Avenue, Suite 1100Jackson, MS 39201 Dallas, TX 75219Office: (601) 949-3388 Office: (214) 521-3605Telefax: (601) 949-3399 Telefax: (214) 599-1172Calvin C. Fayard, Jr. Mikal C. Watts (PSC)FAYARD & HONEYCUTT WATTS GUERRA CRAFT, LLP519 Florida Avenue, SW Four Dominion Drive, Building 3, Suite 100Denham Springs, LA 70726 San Antonio, TX 78257Office: (225) 664-4193 Office: (210) 447-0500Telefax: (225) 664-6925 Telefax: (210) 447-0501Ervin A. GonzalezCOLSON HICKS EIDSON255 Alhambra Circle, PenthouseCoral Gables, FL 33134Office: (305) 476-7400Telefax: (305) 476-7444
  • 5. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 5 of 6 ___/s/ Richard C. Godfrey, P.C._________________James J. Neath Richard C. Godfrey, P.C.Mark HolsteinBP AMERICA INC. J. Andrew Langan, P.C.501 Westlake Park Boulevard Andrew B. Bloomer, P.C.Houston, TX 77079 Wendy L. BloomTelephone: (281) 366-2000 R. Chris HeckTelefax: (312) 862-2200 Christopher J. Esbrook KIRKLAND & ELLIS LLPDaniel A. Cantor 300 North LaSalle StreetAndrew T. Karron Chicago, IL 60654Ellen K. Reisman Telephone: (312) 862-2000ARNOLD & PORTER LLP Telefax: (312) 862-2200555 Twelfth Street, NWWashington, DC 20004 Jeffrey Bossert ClarkTelephone: (202) 942-5000 KIRKLAND & ELLIS LLPTelefax: (202) 942-5999 655 Fifteenth Street, N.W. Washington, D.C. 20005Jeffrey Lennard Telephone: (202) 879-5000Keith Moskowitz Telefax: (202) 879-5200SNR DENTON233 South Wacker Drive /s/ Don K. HaycraftSuite 7800 Don K. Haycraft (Bar #14361)Chicago, IL 60606 R. Keith Jarrett (Bar #16984)Telephone: (312) 876-8000 LISKOW & LEWISTelefax: (312) 876-7934 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139OF COUNSEL Telephone: (504) 581-7979 Telefax: (504) 556-4108 Robert C. “Mike” Brock COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 662-5985 Telefax: (202) 662-6291 ATTORNEYS FOR BP EXPLORATION & PRODUCTION INC. AND BP AMERICA PRODUCTION COMPANY
  • 6. Case 2:10-md-02179-CJB-SS Document 6266 Filed 04/18/12 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that the above and foregoing pleading has been served on All Counsel byelectronically uploading the same to Lexis Nexis File & Serve in accordance with Pretrial OrderNo. 12, and that the foregoing was electronically filed with the Clerk of Court of the UnitedStates District Court for the Eastern District of Louisiana by using the CM/ECF System, whichwill send a notice of electronic filing in accordance with the procedures established in MDL2179, on this 18th day of April 2012. /s/ Don K. Haycraft Don K. Haycraft
  • 7. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 1 of 77 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANAIn Re: Oil Spill by the Oil Rig “Deepwater * MDL NO. 2179 Horizon” in the Gulf of Mexico, on April * 20, 2010 * * SECTION J *This document relates to all actions. * * * Honorable CARL J. BARBIER * * Magistrate Judge SHUSHAN *Bon Secour Fisheries, Inc., et al., individually * Civil Action No. 12-970and on behalf of themselves and all others *similarly situated, * * SECTION J * Plaintiffs, * * * Honorable CARL J. BARBIERv. * * Magistrate Judge SHUSHANBP Exploration & Production Inc; BPAmerica Production Company; BP p.l.c., * Defendants. THE PLAINTIFFS’ STEERING COMMITTEE’S AND BP DEFENDANTS’ MEMORANDUM IN SUPPORT OF JOINT MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, (2) SCHEDULING A FAIRNESS HEARING, (3) APPROVING AND ISSUING PROPOSED CLASS ACTION SETTLEMENT NOTICE, AND (4) BP’S MOTION FOR ADJOURNING THE LIMITATION OF LIABILITY TRIALCOUNSEL FOR ALL MOVING PARTIES ARE LISTED AT END OF MOTION
  • 8. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 2 of 77 TABLE OF CONTENTS PageINTRODUCTION..........................................................................................................................1BACKGROUND ............................................................................................................................2I. PROCEDURAL HISTORY ..............................................................................................2II. SETTLEMENT NEGOTIATIONS..................................................................................4III. SETTLEMENT CLASS DEFINITIONS AND EXCLUSIONS ....................................7IV. SUMMARY OF THE PROPOSED ECONOMIC AND PROPERTY DAMAGES SETTLEMENT.............................................................................................7 A. The Proposed Settlement’s Procedural Elements ....................................................8 1. The Transition Process .................................................................................8 2. Creation Of The Court Supervised Settlement Program..............................9 3. Settlement Program Appellate Procedure ..................................................10 4. Assignment, Release, And Other Protections ............................................11 5. Final Judgment ...........................................................................................11 6. Class Notice ...............................................................................................12 B. Four Unique Features Of The Proposed Settlement Guarantee Exceptionally Full And Fair Compensation. .........................................................13 C. The Proposed Settlement’s Payment Categories ...................................................15 1. Economic Loss ...........................................................................................16 2. Property Damage .......................................................................................21 3. Vessels Of Opportunity (“VoO”) Charter Payment...................................22 4. Vessel Physical Damage Claims ................................................................23 5. Subsistence Damage Payments ..................................................................23 6. The Seafood Compensation Program ........................................................23 7. The Gulf Coast Promotional Fund .............................................................25 i
  • 9. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 3 of 77ARGUMENT ................................................................................................................................25I. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. ....................................................................................................................25 A. The Settlement Agreement Meets The Standard For Preliminary Approval. ........26 B. The Settlement Agreement Meets The More Demanding Requirements For Final Approval. ................................................................................................29 1. Absence Of Fraud And Collusion ..............................................................31 2. Complexity, Expense, And Likely Duration Of The Litigation ................34 3. The Stage Of The Proceedings And Amount Of Discovery Completed ..................................................................................................37 4. The Probability Of Plaintiffs’ Success On The Merits ..............................38 5. Range Of Possible Recovery .....................................................................40 6. Opinions Of Class Counsel, Class Representatives, And Absent Class Members ...........................................................................................41II. THE PROPOSED NOTICE TO THE CLASS COMPLIES WITH RULE 23(C)(2) AND RULE 23(E). ............................................................................................43 A. The Proposed Notice Distribution Method And Notice Contents Comply With Rule 23(c)(2). ................................................................................................44 1. The Proposed Notice Distribution Method Satisfies Rule 23(c)(2). ..........44 2. The Proposed Notice Contents Satisfy Rule 23(c)(2). ...............................46 B. The Proposed Notice Complies With Rule 23(e). .................................................47III. THE COURT SHOULD ADJOURN THE LIMITATION AND LIABILITY TRIAL UNTIL AFTER THE FAIRNESS HEARING. ...............................................49IV. REQUESTED PROCEDURES AND TIMETABLE ...................................................51CONCLUSION ............................................................................................................................51APPENDIX A — PROPOSED CLASS DEFINITION ......................................................... A-1APPENDIX B — SETTLEMENT EXHIBIT 22 ....................................................................B-1APPENDIX C — SETTLEMENT EXHIBIT 23 ................................................................... C-1 ii
  • 10. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 4 of 77 TABLE OF AUTHORITIESCASESAltier v. Worley Catastrophe Response, LLC, No. 11-241, 2012 WL 161824 (E.D. La. Jan. 18, 2012) ............................................................. 7Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee, 616 F.2d 305 (7th Cir. 1980) ..................................................................................................... 30Ass’n For Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002) ......................................................................................... 28, 36Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004) ......................................................................................... 30, 37, 41Billitteri v. Secs. Am., Inc., 2011 WL 3586217 (N.D. Tex. Aug. 4, 2011) ........................................................................... 34Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio 1992) ............................................................................................. 31Brunson v. La.-Pac. Corp., 818 F. Supp. 2d 922 (D.S.C. 2011) ........................................................................................... 33Carlough v. Amchem Prods., Inc., 10 F.3d 189 (3d Cir. 1993) ........................................................................................................ 50Collins v. Sanderson Farms, Inc. 568 F. Supp. 2d 714 (E.D. La. 2008) ............................................................................ 29, 31, 35Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ................................................................................. 29, 30, 40, 41DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007)....................................................................................... 38, 41Domingue v. Sun Elec. & Instrumentation, No. 09-682, 2010 WL 1688793 (M.D. La. Apr. 26, 2010) ....................................................... 32Eatmon v. Palisades Collection LLC, No. 08-306, 2011 WL 147680 (E.D. Tex. Jan. 18, 2011) ......................................................... 45Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) .................................................................................................................. 36Faircloth v. Certified Fin., Inc., No. 99-3097, 2001 WL 527489 (E.D. La. May 16, 2001) ............................................ 35, 36, 37 iii
  • 11. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 5 of 77Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979) ................................................................................................... 47Gautreaux v. Pierce, 690 F.2d 616 (7th Cir. 1982) ..................................................................................................... 27Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992) ................................................................................................... 32Harris v. Vector Mktg. Corp., No. 08-5198, 2011 WL 1627973 (N.D. Cal. Apr. 29, 2011) .................................................... 33In re Catfish Antitrust Litig., 939 F. Supp. 493 (N.D. Miss. 1996) ......................................................................................... 34In re CertainTeed Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468 (E.D. Pa. 2010) ................................................................................................ 43In re Chinese-Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2011 WL 2313866 (E.D. La, June 9, 2011) ............................................. 44, 50In re Chinese-Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2012 WL 92498 (E.D. La. Jan. 10, 2012) .................................... 26, 27, 44, 45In re Combustion, Inc., 968 F. Supp. 1116 (W.D. La. 1997) ................................................................................... passimIn re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) ................................................................................... 29, 31, 38, 41In re Corrugated Container Antitrust Litig., 659 F.2d 1322 (5th Cir. 1981) ................................................................................................... 40In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y. 2009)............................................................................................... 34In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220 (3d Cir. 2002) ...................................................................................................... 50In re Educ. Testing Serv. Praxis Principles of Learning & Testing: Grades 7-12 Litig., 447 F. Supp. 2d 612 (E.D. La. 2006) .................................................................................. 29, 37In re Enron Corp. Secs., Derivs., & “ERISA” Litig., No. MDL-1446, 2008 WL 4178151 (S.D. Tex. Sept. 8, 2008) ................................................ 48In re Exxon Valdez, 229 F.3d 790 (9th Cir. 2000) ..................................................................................................... 29 iv
  • 12. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 6 of 77In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., --- F. Supp. 2d ----, No. 09-2046, 2012 WL 948365 (S.D. Tex. Mar. 20, 2012) ................ 32, 39In re Initial Pub. Offering Sec. Litig., 243 F.R.D. 79 (S.D.N.Y. 2007)................................................................................................. 39In re Katrina Canal Breaches Litig., 628 F.3d 185 (5th Cir. 2010) ..................................................................................................... 30In re Lease Oil Antitrust Litig., 186 F.R.D. 403 (S.D. Tex. 1999) .............................................................................................. 30In re Mills Corp. Sec. Litig., 265 F.R.D. 246 (E.D. Va. 2009) ............................................................................................... 32In re Napster, Inc. Copyright Litig., MDL No. 1369, 2007 WL 2907892 (N.D. Cal. Oct. 2, 2007) .................................................. 50In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99 (S.D.N.Y. 1997)................................................................................................. 27In re OCA, Inc. Sec. & Deriv. Litig., No. 05-2165, 2008 WL 4681369 (E.D. La. Oct. 17, 2008) .................................... 27, 42, 45, 46In re Oil Spill by Amoco Cadiz, 4 F.3d 997 (7th Cir. 1993) ......................................................................................................... 35In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352 (J.P.M.L. 2010) ........................................................................................ 2In re Serzone Prods. Liab. Litig., 231 F.R.D. 221 (S.D. W. Va. 2005) .......................................................................................... 43In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993) .............................................................................. 27, 34, 35, 37In re Sony Corp. SXRD Rear Projection Television Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 09-2102, 2010 WL 1993817 (S.D.N.Y. May 19, 2010) ........................................... 50In re Traffic Exec. Ass’n.-E. R.R., 627 F.2d 631 (2d Cir. 1980) ...................................................................................................... 28In re Train Derailment Near Amite La., No. 1531, 2006 WL 1561470 (E.D. La. May 24, 2006) ........................................................... 32 v
  • 13. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 7 of 77In re Trans Union Corp. Privacy Litig., 629 F.3d 741 (7th Cir. 2011) ..................................................................................................... 48In re U.S. Oil & Gas Litig., 967 F.2d 489 (11th Cir. 1992) ................................................................................................... 34In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100 (D.D.C. 2004) .......................................................................................... 39In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ...................................................................................................... 29Int’l Union, United Auto., Aerospace & Ag. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007) ............................................................................................... 43, 48Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. Gen. Motors Corp., No. 07-14074, 2008 WL 2968408 (E.D. Mich. July 31, 2008) ................................................ 28Karvaly v. eBay, Inc., 245 F.R.D. 71 (E.D.N.Y. 2007) ................................................................................................ 27Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501 (5th Cir. 1981) ..................................................................................................... 29Klein v. O’Neal, 705 F. Supp. 2d 632 (N.D. Tex. 2010) ...................................................................................... 35Landis v. N. Am. Co., 299 U.S. 248 (1936) .................................................................................................................. 50Lazar v. Pierce, 757 F.2d 435 (1st Cir. 1985) ..................................................................................................... 29Louie v. Kaiser Found. Health Plan, Inc., No. 08-0795, 2008 WL 4473183 (S.D. Cal. Oct. 6, 2008) ....................................................... 33Lucas v. Kmart Corp., 234 F.R.D. 688 (D. Colo. 2006) ................................................................................................ 32M.D. ex rel. Stukenberg v. Perry, --- F.3d ----, No. 11-40789, 2012 WL 974478 (5th Cir. Mar. 23, 2012) .................................. 30Marcus v. Dept. of Revenue, 206 F.R.D. 509 (D. Kan. 2002) ................................................................................................. 50 vi
  • 14. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 8 of 77Maywalt v. Parker & Parsley Pet. Co., 67 F.3d 1072 (2d Cir. 1995) ...................................................................................................... 33McAlarnen v. Swift Transp. Co., Inc., No. 09-1737, 2010 WL 365823 (E.D. Pa. Jan. 29, 2010) ......................................................... 33McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424 (E.D. Tex. 2002) .............................................................................................. 27Meijer, Inc. v. Warner Chilcott Holdings Co. III, 565 F. Supp. 2d 49 (D.D.C. 2008) ............................................................................................ 38Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80 (D. Conn. 2010) ................................................................................................. 28Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) .................................................................................................................. 48Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325 (1st Cir. 1991) ................................................................................................... 48Neff v. VIA Metro. Transit. Auth., 179 F.R.D. 185 (W.D. Tex. 1998)............................................................................................. 29Newby v. Enron Corp., 394 F.3d 296 (5th Cir. 2004) ............................................................................................... 30, 38Parker v. Anderson, 667 F.2d 1204 (5th Cir. 1982) ................................................................................................... 38Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978) ................................................................................................... 42Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235 (6th Cir. 2011) ..................................................................................................... 38Priceline.com, Inc. v. Silberman, 405 F. App’x 532 (2d Cir. 2010) ............................................................................................... 34Priddy v. Edelman, 883 F.2d 438 (6th Cir. 1989) ..................................................................................................... 40Quigley v. Braniff Airways, Inc., 85 F.R.D. 74 (N.D. Tex. 1979) ................................................................................................. 48Radosti v. Envision EMI, 717 F. Supp. 2d 37 (D.D.C. 2010) ............................................................................................ 38 vii
  • 15. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 9 of 77Reed v. Gen. Motors Corp., 703 F.2d 170 (5th Cir. 1983) ................................................................................... 30, 38, 39, 42Rodriguez v. West Publ’g Grp., 563 F.3d 948 (9th Cir. 2009) ............................................................................................... 34, 36Ruiz v. McKaskle, 724 F.2d 1149 (5th Cir. 1984) ................................................................................................... 32Salinas v. Roadway Express, Inc., 802 F.2d 787 (5th Cir. 1986) ..................................................................................................... 37San Antonio Hispanic Police Officers Org., Inc. v. City of San Antonio, 188 F.R.D. 433 (W.D. Tex. 1999)............................................................................................. 42Smith v. Ajax Magnethermic Corp., No. 02-0980, 2007 WL 3355080 (N.D. Ohio Nov. 7. 2007) .................................................... 36Smith v. Crystian, 91 F. App’x 952 (5th Cir. 2004)................................................................................................ 29Smith v. Tower Loan of Miss., Inc., 216 F.R.D. 338 (S.D. Miss. 2003)............................................................................................. 34Stott v. Capital Fin. Servs., Inc., 277 F.R.D. 316 (N.D. Tex. 2011) ............................................................................................. 40Trombley v. Nat’l City Bank, 759 F. Supp. 2d 20 (D.D.C. 2011) ............................................................................................ 38Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830 (E.D. La. 2007) ................................................................................. passimUAW v. Gen. Motors Corp., 235 F.R.D. 383 (E.D. Mich. 2006) ............................................................................................ 28UAW v. Gen. Motors Corp., No. 05-73991, 2006 WL 891151 (E.D. Mich. Mar. 31,2006) .................................................. 43Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012) ..................................................................................................... 30Williams v. New Orleans Pub. Serv. Inc., No. 75-1635, 1988 WL 98283, (E.D. La. Sept. 15, 1988) ........................................................ 27STATUTES28 U.S.C. § 1407 ............................................................................................................................. 2 viii
  • 16. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 10 of 7728 U.S.C. § 1651(a) ...................................................................................................................... 57Fed. R. Civ. P. 23 .............................................................................................................. 26, 51, 57Fed. R. Civ. P. 23(a) ..................................................................................................................... 27Fed. R. Civ. P. 23(b) ..................................................................................................................... 27Fed. R. Civ. P. 23(b)(3)........................................................................................................... 49, 53Fed. R. Civ. P. 23(c)(2) ............................................................................................... 49, 50, 52, 54Fed. R. Civ. P. 23(c)(2)(B) ............................................................................................... 50, 52, 53Fed. R. Civ. P. 23(c)(3) ........................................................................................................... 50, 52Fed. R. Civ. P. 23(e) ......................................................................................................... 49, 53, 54Fed. R. Civ. P. 23(e)(1) ................................................................................................................. 54Fed. R. Civ. P. 23(e)(2) ................................................................................................................. 26Fed. R. Civ. P. 23(e)(3) ................................................................................................................... 7OTHER AUTHORITIESArnsdorf, Isaac, Exxon Valdez to Be Junked Years After Worst U.S. Ship Spill, available at http://www.bloomberg.com/news/2012-03-20/ exxon-valdez-sold-for-scrap-years-after-worst-u-s-tanker-spill.html (Mar. 20, 2012)............. 34MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.311 .............................................................. 45MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.632 ................................................. 25, 26, 50MANUAL FOR COMPLEX LITIGATION (SECOND) § 30.44 ............................................................... 26MCLAUGHLIN, JOSEPH M., 2 MCLAUGHLIN ON CLASS ACTIONS: LAW & PRACTICE § 6:7 (8th ed. 2011) ........................... 29NEWBERG ON CLASS ACTIONS § 11:51 (4th ed. 2010) .................................................................. 30Office of Court Appointed Claims Administrator, Court Supervised Claim Program, Press Release, available at http://www.gulfcoastclaimsfacility.com/PressRelease-03-23-12.pdf (March 23, 2012) ............ 8Press Release Regarding Transition Process, available at http://www.gulfcoastclaimsfacility.com/PressRelease-04-10-12.pdf (Apr. 10, 2012) ............... 9 ix
  • 17. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 11 of 77 INTRODUCTION The Plaintiffs’ Steering Committee (“PSC”) (by and through Interim Class Counsel) andthe BP Defendants (by and through their undersigned counsel) respectfully submit thisMemorandum in support of their joint motion for (1) preliminary approval of the class actionsettlement; (2) scheduling a fairness hearing; (3) approval and issuance of class action settlementnotice; and (4) BP’s unopposed request for adjournment of the Limitation and Liability trial.1 After nearly two years of exceptionally complex, resource-intensive, and hard-foughtlitigation, the PSC and BP have reached a proposed settlement. Under the Agreement, which isbeing filed separately, a new Deepwater Horizon Court Supervised Settlement Program willresolve claims under rules that (1) have been agreed upon by the parties after lengthynegotiation; (2) are subject to Court approval; and (3) are transparent, easily understood, and fairto both sides. At all times, decisions reached by the Claims Administration Vendors as overseenby the Claims Administrator will be subject to appellate review by neutral, independentdecisionmakers. As in any settlement, neither side will receive everything it wants—not BP, whichbelieves that plaintiffs’ claims are subject to considerable litigation risk, and not the PSC, whomaintain that they would one day obtain larger awards if their claims were to proceed to trial.On balance, however, the Agreement creates a comprehensive compensation system, and thusrepresents a resolution that is more than fair, reasonable, and adequate when judged against thestandards of Federal Rule of Civil Procedure 23. The PSC and BP thus jointly request that the Court enter an order (1) preliminarily1 Unless otherwise defined herein, capitalized terms in this memorandum refer to defined terms and have themeaning set forth in the proposed Deepwater Horizon Economic and Property Damage Settlement Agreement filedconcurrently herewith.
  • 18. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 12 of 77approving the proposed settlement; (2) scheduling a fairness hearing; (3) approving the proposednotice protocol; and (4) granting BP’s unopposed request to adjourn the Limitation and Liabilitytrial until after the fairness hearing has occurred and the Court has adjudicated the fairness of thesettlement, either approving or rejecting it. BACKGROUNDI. PROCEDURAL HISTORY On April 20, 2010, an explosion and fire aboard the Deepwater Horizon triggered a tragicchain of events that led to eleven deaths, dozens of injuries, and an oil spill in the Gulf ofMexico. This Court took charge of the cases filed in this District arising from the incident, andon August 10, 2010, the Judicial Panel on Multidistrict Litigation (“JPML”) centralized allfederal actions (excluding securities suits) in this District and assigned them to this Courtpursuant to 28 U.S.C. § 1407. See In re Oil Spill by the Oil Rig “Deepwater Horizon” in theGulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352 (J.P.M.L. 2010). On October 19, 2010, the Court issued Pretrial Order 11 (Rec. Doc. 569) (“PTO 11”),creating pleading bundles for various types of claims. Among the pleading bundles is the B1bundle, which encompasses all private claims for economic loss and property damage. Id. at 3.2In accordance with PTO 11, plaintiffs filed the B1 Master Complaint on December 15, 2010(Rec. Doc. 879), and filed a First Amended B1 Master Complaint on February 9, 2011 (Rec.Doc. 1128). After numerous defendants filed motions seeking to dismiss the First Amended B1Complaint, the Court issued an order granting in part and denying in part these motions onAugust 26, 2011 (Rec. Doc. 3830). BP subsequently answered the First Amended Complaint onSeptember 27, 2011 (Rec. Doc. 4130). To date, approximately 109,000 claimants have filed2 A motion for preliminary approval of a proposed medical class settlement is being filed separately. That proposedsettlement encompasses personal injury claims falling within the B3 bundle. See Pretrial Order 11. 2
  • 19. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 13 of 77short-form joinders adopting the First Amended B1 Master Complaint. On April 16, 2012,plaintiffs filed a new class action complaint captioned Bon Secour Fisheries, Inc. v. BPExploration & Production Inc., No. 12-970 (Rec. Doc. 6252). The First Amended B1 Master Complaint (Rec. Doc. 1128) sought relief in six counts:general maritime law claims (Count I); OPA claims (Count II); state law claims (Count III); apunitive damages claim (Count IV); and claims seeking declaratory relief relating to the GCCF(Counts V and VI). After extensive briefing, the Court dismissed counts III, V, and VI. See B1Order (Rec. Doc. 3830) at 37-39. The Court’s rulings as to the other counts also providedimportant guidance to the parties in evaluating the strengths and weaknesses of their respectiveclaims and defenses. The newly filed Bon Secour Fisheries class action complaint asserts sixcauses of action or accompanying forms of relief: (1) negligence, gross negligence and willfulmisconduct, and breach of contract, under general maritime law; (2) OPA claims; (3) nuisance,trespass, fraudulent concealment, and strict liability claims, under federal or other applicablelaw; and (4) punitive damages on the foregoing claims. (Rec. Doc. 6252 ¶¶ 319-432.) BP willfile an answer to the Bon Secour Fisheries complaint in accord with the Federal Rules of CivilProcedure and any future Court orders. In the 20 months that have passed since the JPML’s centralization order, the parties haveengaged in extensive discovery and motion practice. The Court kept this litigation moving at abrisk pace, through monthly status conferences and detailed case management orders. Theparties completed all discovery necessary to prepare for trial, including taking 311 depositions,producing approximately 90 million pages of documents, and exchanging more than 80 expertreports on an intense and demanding schedule. Depositions were conducted on multiple tracksand on two continents. Discovery was kept on course by weekly discovery conferences before 3
  • 20. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 14 of 77Magistrate Judge Shushan and by prompt rulings by the Court. As a result, the parties arrived atthe eve of trial completely apprised of the operative facts and thoroughly prepared to engage inadversarial trial litigation.II. SETTLEMENT NEGOTIATIONS Consistent with the Court’s instruction to the PSC to “[e]xplore, develop, and pursue allsettlement options pertaining to any claim or portion thereof of any case filed in this litigation,”Pretrial Order 8 (Rec. Doc. 506) at 4, the PSC and BP have engaged in good-faith, lengthy, andintricately detailed settlement discussions. They did so without disrupting or distracting fromdiscovery and trial preparation, on an equally intensive parallel track. The parties wereultimately able to reach a settlement precisely because of the information and knowledge thatthey obtained through the discovery process and pretrial rulings. The parties initiated contact through their respective counsel and had preliminarymeetings in early 2011 to discuss the possibility of engaging in settlement discussions. Theparties began negotiating in earnest in February 2011, and negotiations were held on a virtuallydaily basis commencing in May 2011. The parties negotiated separately, though concurrently,two distinct class action settlements, the Medical Settlement and the Economic and PropertyDamages Settlement. The former is discussed in the parties’ Medical Settlement PreliminaryReview Motion. The latter is discussed here. The parties initially negotiated with each other directly. In early 2012, Magistrate JudgeShushan became increasingly involved as a neutral mediator between the parties, overseeingmany of the negotiations and ensuring that the process was fair and ethical. Her involvementwas integral to the ultimate resolution of the litigation. In negotiating the Settlement Agreement, the parties followed the same protocol for eachtype of claim: rather than negotiating a total settlement, either a figure for an aggregate class 4
  • 21. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 15 of 77settlement or for each type of claim, the parties instead assessed the strength and value of eachtype of claim. Without regard to total payout figures, the parties negotiated claims frameworks,programs, and processes, including details such as what types of proof would be required forclaimants to receive a settlement benefit, what categories of claims would be paid, whethercertain claimants would benefit from causation presumptions, and how settlement benefits wouldbe calculated. The negotiations were exclusively focused, from the outset, on producing claimsframeworks that could be administered simply, fairly, objectively, and consistently, and, in everyinstance, according to the merits of the underlying claims. The principle was two-fold: to designclaims frameworks that fit a wide array of damage categories, and, within each category, to treatlike claims alike, so as to proceed with both fairness and predictability. During this process, PSC and other Plaintiffs’ counsel most familiar with each type ofclaim advised the negotiators to ensure that the frameworks reflected the actual situations facedby the hundreds of thousands of people potentially affected by the oil spill. For example,attorneys representing seafood restaurants contributed to the development of the businesseconomic loss framework, which details the steps by which businesses recover for losses due tothe spill. So, too, did attorneys representing employees inform the development of the individuallost wages framework; attorneys representing wetlands owners, the property damage framework;attorneys representing homeowners, the property sales loss framework—and so on. With the exception of the Seafood Compensation Program, there is no limit or “cap” onthe amount to be paid by BP under these programs. Rather, all claims that meet the criteria foreach program will be paid in full. Such claims will be paid without delay—claimants need notawait final settlement approval for payment. Claimants may submit claims in multiple categoriesto recover for all demonstrable losses arising from the Deepwater Horizon Incident. 5
  • 22. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 16 of 77 The parties also negotiated the claims process for the Seafood Compensation Programover an extensive period. While the parties had discussed an open-ended framework, it becameclear by early March 2012 that a fixed sum of $2.3 billion would best compensate eligibleparticipants fully and fairly. At the parties’ suggestion, the Court appointed John W. Perry, Jr.,to preside over the proposed settlement of the seafood program. (Rec. Doc. 5998.) On the eve of the Limitation and Liability trial, upon being informed that the parties werenear an agreement in principle, the Court adjourned the trial for one week “to allow the parties tomake further progress in their settlement discussions.” (Rec. Doc. 5887.) The parties continuednegotiating, and on March 2, 2012, the Court adjourned the trial once more after the partiesreached an agreement in principle. As the Court explained, the “settlement would likely resultin a realignment of the parties in this litigation and require substantial changes to the currentPhase I trial plan.” (Rec. Doc. 5955.) By separate order, the Court also designated the PSC Co-Liaison Counsel as Interim Class Counsel, in order to facilitate the consummation of theAgreement and the implementation of the settlement approval process. (Rec. Doc. 5960). At the parties’ request and consistent with the agreement in principle, the Court entered itsFirst Amended Order Creating Transition Process to facilitate the transition from the Gulf CoastClaims Facility (“GCCF”) to the Court Supervised Settlement Program envisioned by thesettlement. (Rec. Doc. 5995). The parties worked out an agreement on the essential terms of the settlement, designed allof the compensation frameworks, and finalized the procedures that will govern the SettlementProgram. Only then, upon receiving permission from the Court, BP and the PSC proceeded tonegotiate an appropriate Class Counsel fee. As a result, and subject to Court approval, the BPparties have agreed not to contest a request by Class Counsel for an award, in an amount to be set 6
  • 23. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 17 of 77by the Court, not to exceed $600 million, for class counsel’s fees, costs, and expenses, asdetailed fully in Exhibit 27 to the Settlement Agreement.3 Consistent with Federal Rule of CivilProcedure 23(e)(3), there is no “agreement made in connection with th[is] proposal” other thanthe Economic and Property Damage Class Settlement Agreement being submitted herewith tothis Court.III. SETTLEMENT CLASS DEFINITIONS AND EXCLUSIONS To effectuate the settlement, the PSC is seeking by separate motion to certify a class ofindividuals and businesses that suffered economic loss or property damage as a result of theDeepwater Horizon Incident. BP does not oppose the motion, and the proposed class definitionis annexed to this memorandum as Appendix A, along with the relevant maps contained inAppendices B and C. The frameworks and programs to be established to benefit the class areexplained in Section IV immediately below.IV. SUMMARY OF THE PROPOSED ECONOMIC AND PROPERTY DAMAGES SETTLEMENT Like any settlement, this settlement is “a compromise, a yielding of the highest hopes inexchange for certainty and resolution.” Altier v. Worley Catastrophe Response, LLC, No. 11-241, 2012 WL 161824, at *14 (E.D. La. Jan. 18, 2012) (quotations omitted). It is, however, asettlement that stands on its own as a comprehensive, fair, and reasonable compensation systemthat does not discount demonstrable losses or compromise procedural fairness. The settlement’smost salient feature is that it makes whole the myriad of plaintiffs asserting that they havesuffered economic loss or property damage as a result of the Deepwater Horizon Incident.3 Under this provision, Class Counsel would seek an interim award of $75 million. Additional interim paymentsequivalent to 6% of class claims would be paid quarterly, and the fee would not exceed a total of $600 million underany circumstances. All terms of the fee provision are subject to Court approval. 7
  • 24. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 18 of 77 A. The Proposed Settlement’s Procedural Elements Under the Agreement, the GCCF will be replaced by a new Court Supervised SettlementProgram, headquartered and with claims offices located in the same Gulf area as the classmembers whose claims they will resolve. The new program will use a highly transparent andobjective process to provide full and fair compensation to individuals and businesses harmed bythe spill. BP has agreed to pay all administrative costs, even though the new Settlement Programis and will remain independent of BP. The Agreement provides for a claims deadline of April22, 2014, or six months after the Effective Date of the settlement, whichever is later. 1. The Transition Process The Transition Orders issued by the Court on March 8, 2012 govern the transitionprocess pending the Court’s preliminary approval of the settlement and initiation of thesettlement claims process. For all claims submitted to the GCCF for which an unpaid, unexpiredoffer is pending, the Transition Coordinator will pay 60% of the offer without requiring arelease. See Am. Transition Order (Rec. Doc. 5995) at 3. Moreover, “[i]f the claimant receivingthe 60% payment is a member of the proposed settlement class, the claimant has a right toadditionally recover from the Court Supervised Settlement Program the greater of: the remaining40% of the GCCF offer, or the class settlement payment minus any amount previously paid bythe Transition Process.” Id. (emphasis added). The Order also allows eligible claimants toobtain GCCF “Quick Pay” disbursements until May 7, 2012, id.; provides for notice of thetermination to all eligible participants, id.; and provides that the transition process will terminateupon entry of preliminary approval and the establishment of the settlement claims process, id. at4. Any disagreements about the claims administration process that cannot be resolved by thenew Claims Administrator and the parties will be referred to the Court for resolution. 8
  • 25. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 19 of 77 To aid in the transition from the GCCF to the new Settlement Program, the Court hasalready appointed Patrick Juneau as the Claims Administrator and directed him to establish aTransition Process. See id. at 1-2; see also Office of Court Appointed Claims Administrator,Court Supervised Settlement Program, BP Oil Spill, Press Release, available athttp://www.gulfcoastclaimsfacility.com/PressRelease-03-23-12.pdf (March 23, 2012). Likewise,the Court has already appointed (a) Lynn Greer as Transition Coordinator, see Am. TransitionOrder, at 1; (b) James Parkerson Roy and Stephen J. Herman as Interim Class Counsel, see Order(Rec. Doc. 5960); and (c) John W. Perry, Jr. as a neutral to preside over the proposed settlementof the seafood program, see Order (Rec. Doc. 5998).4 2. Creation Of The Court Supervised Settlement Program Under the Agreement, the GCCF will be replaced by a new Settlement Program that is“subject to the ongoing supervision of the court.” Agreement, Section 4.4.7. The new program(once it fully implements the proposed settlement under the Court’s oversight shortly afterpreliminary approval) will use a highly transparent and objective process to provide full and faircompensation to individuals and businesses harmed by the spill. Under the proposed settlement, the Settlement Program will compensate class memberspursuant to frameworks described in greater detail in background section IV.C, below. TheSettlement Program is designed to be responsive to claimants. It will function neither as adepersonalized bureaucracy nor as an adversarial system. Instead, the parties have agreed thatthe Settlement Program will assist class members in submitting their claims:4 According to this Court’s Amended Transition Order, “[t]he Transition Coordinator will: (a) evaluate claimscurrently pending with the Gulf Coast Claims Facility; and (b) evaluate any new claims submitted before theproposed Court supervised claims program.” Rec. Doc. 5995, at 2. Between March 8, 2010, and April 10, 2010, theTransition Coordinator paid 5,238 claimants a total sum in excess of $134 million. See Press Release RegardingTransition Process, available at http://www.gulfcoastclaimsfacility.com/PressRelease-04-10-12.pdf (Apr. 10, 2012). 9
  • 26. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 20 of 77 The Settlement Program, including the Claims Administrator and Claims Administration Vendors, shall work with Economic Class Members (including individual Economic Class Members’ counsel and Class Counsel) to facilitate Economic Class Members’ assembly and submission of Claims Forms, including all supporting documentation necessary to process Claim Forms under the applicable Claims Processes. The Settlement Program, including the Claims Administrator and Claims Administration Vendors, shall use its best efforts to provide Economic Class Members with assistance, information, opportunities and notice so that the Economic Class Member has the best opportunity to be determined eligible for and receive the Settlement Payment(s) to which the Economic Class Member is entitled under the terms of the Agreement.Agreement, Section 4.3.7. Submitted claims will be evaluated and processed by the by the claims administrationvendors. See Agreement, Section 4.38. In the claims administration vendors’ evaluation ofclaims, there shall be no relevance or effect to the fact that any claimant previously had a claimdenied or rejected by the GCCF. See Agreement, Section 4.4.9. 3. Settlement Program Appellate Procedure Beyond providing transparent, objective, and fair rules for calculating awards, theproposed settlement process provides for ample internal appellate review. Claimants have theright to appeal denials of claims for insufficient documentation and to challenge any finaldetermination made in their cases by the new Settlement Program. BP, in contrast, will be ableto appeal only where an individual claimant is awarded more than $25,000 in base compensation.Appeals as to the amount of compensation will be decided using so-called “baseball arbitration,”where the appellate panel must select either the amount advanced by the claimant or the amountadvanced by BP. All appellate panelists will be selected by the Court from a list agreed upon bythe parties. If the amount at issue is more than $1,000,000 in base compensation, an appeal willbe considered by a three-member panel; in such an instance, at least one panel member must be 10
  • 27. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 21 of 77from the claimant’s home State.5 4. Assignment, Release, And Other Protections Pursuant to the Agreement, all class members who accept payment under the newSettlement Program agree to release, forever discharge, and covenant not to sue, inter alia, (i)BP, (ii) all federal and state oil spill liability funds, and (iii) every one of the other listed“Released Parties” (including all defendants in the Deepwater Horizon litigation exceptHalliburton and Transocean6) for any and all defined released claims arising from or relating inany way to the DWH Spill. Participating class members will reserve all punitive damage claims against Transoceanand Halliburton. In addition, the Agreement expressly reserves to class members specificcarved-out claims.7 Finally, subject to final approval, the proposed class will obtain anassignment of certain of BP’s claims against Transocean and Halliburton. 5. Final Judgment Under the Agreement, the parties will seek a final judgment approving the settlement,certifying the class for settlement purposes, and dismissing all of the released economic loss andproperty damage claims of the Economic Loss Class against BP.8 BP, moreover, agrees not to5 Both the $25,000 and $1,000,000 appeal thresholds referred to in this paragraph refer to base compensation, priorto application of a risk transfer premium (“RTP”). RTPs are explained in background section IV.B, below.6 The intent of the Agreement is for BP to pay all compensatory damages but to allow the plaintiffs to continue toseek punitive damage recoveries from Halliburton and Transocean, which is the sole basis for the exclusion of thosedefendants from the release. The plaintiffs, moreover, have agreed with BP to a set of special rules to effectuate theparties’ intent to allow the plaintiffs to seek exclusively punitive damages against Halliburton and Transocean,including the plaintiffs’ (1) agreeing not to seek compensatory damages against Halliburton or Transocean; and (2)agreeing, among other protections to BP, not to execute on any compensatory damages that might be awarded toplaintiffs against Halliburton and Transocean. See Agreement, Section 11.7 For example, class members can participate in the settlement while reserving any claims for moratorium-relatedloss.8 The Agreement reserves certain claims of the Economic Class Members and, of course, does not affect the claimsof non-Class Members. 11
  • 28. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 22 of 77contest a request by Class Counsel for fees, costs, and expenses up to a maximum of $600million, should such an award be approved by the Court. (The maximum award will includefees, costs, and expenses paid under the separate Medical Benefits Class Action Settlement;jointly the total award may not exceed $600 million.) Importantly, this sum will be paidseparately from any amounts paid to the Settlement Class, and it does not reduce their paymentsor benefits. (See Settlement Agreement Ex. 27.) 6. Class Notice The Settlement Notice Program was designed with the requirements of Rule 23 and dueprocess in mind. The heart of the notice program is a multimedia notice program that will coverthe entire United States, with a particular focus on the Gulf Coast regions. See Ex. 1 (AzariDecl.); Ex. 2 (Kinsella Decl.); Ex. 3 (Wheatman Decl.) (setting out the methodology, media to betargeted, and scope of the extensive notice plan prepared to inform potential class members oftheir options). The media notice effort will include publication in over 2,100 local and nationalnewspapers and nationwide publication in leading national consumer magazines, trade, businessand specialty publications, local television, radio and newspapers in the Gulf Coast Areas,appropriate foreign language and African-American publications, and online banner advertising.The campaign will also include individually mailed notice to class members (who can beidentified from court filings, court records, and GCCF records), including to all those classmembers who filed short-form joinders as part of pretrial preparation for the Limitation andLiability trial. To the extent that records indicate that individual class members are representedby counsel, individual notice will also be mailed to their attorneys. The parties will also make available multiple channels through which class members canlearn more about the settlement. The settlement administrator will establish a toll-free numberstaffed by representatives who can field class members’ questions and help them through the 12
  • 29. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 23 of 77claims process. And most importantly, the administrator will establish a comprehensive noticeand claims website through which class members can learn about the settlement, submit theirclaims online, and check their claim status. The website will feature a list of frequently askedquestions, which will be regularly updated to ensure that the class receives information ofcommon concern. The settlement web address will be included in all notice materials. Everypotential class member will have access to a complete copy of the Settlement Agreement,including its exhibits. Finally, BP has agreed to provide up to $5 million in funds for asupplemental publicity campaign managed by the PSC. As described in argument section II.Bbelow, notice experts forecast that this notice campaign may come to be regarded as one of themost comprehensive and elaborate notice programs in litigation history, with 95% of the adultsin the Gulf Coast exposed to class notice materials on average 8.8 times, and 83% of U.S. adultsexposed on average 3.8 times. B. Four Unique Features Of The Proposed Settlement Guarantee Exceptionally Full And Fair Compensation. The Agreement includes four overarching features that are uniquely designed toguarantee the fairness and adequacy of the proposed settlement: First, Section 4.4.10.3 of the Agreement provides for the satisfaction of all economic andproperty loss claims by class members arising out of the oil spill, even for losses caused by theactions or omissions of Transocean or Halliburton. In other words, BP has taken theextraordinary step of agreeing to pay all of those compensatory damages itself even though thespill was a multi-party, multi-causal event. Second, claimants in many of the claims categories will receive, in addition to calculated 13
  • 30. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 24 of 77baseline damages, Risk Transfer Premium (“RTP”) payments.9 RTP payments are meant tocompensate class members for pre-judgment interest, the risk of oil returning, consequentialdamages, inconvenience, aggravation, the risk of future loss, the lost value of money,compensation for emotional distress, liquidation of legal disputes about punitive damages, andother factors. These RTPs—which are multiples of baseline damages added to many classmembers’ compensatory damages awards, and which were negotiated separately for eachdamage category—will fully compensate claimants for all potential future and unknown lossesrelating to the DWH Spill, along with all other elements of damage, thereby extinguishing claimsfor damages under all conceivable legal theories.10 As the name suggests, from the perspectiveof a class member, RTP payments provide additional monetary recoveries to plaintiffs whocontend they bear the risk of future and unknown losses, whereas from the defense perspectiveBP pays such additional compensation in exchange for broad releases. Third, Section 11 of the Agreement, “Assignment and Protections,” assigns to PlaintiffsBP’s spill-related claims against Transocean and Halliburton. As the Agreement indicates, theassigned claims include claims for repair of the Macondo Well, related economic losses to BP,costs that BP incurred to respond to the spill, and any punitive damage claims that BP may haveagainst Transocean or Halliburton. The Settlement Class may pursue these claims for additionalcompensation on top of full compensatory payments that already have been augmented by RTPs.9 For example, if the compensation amount is $10,000 for a tourism-related injury, and the RTP applicable to arecovery of that type is 2.5, then $10,000 is multiplied by 2.5, which product is then added to the $10,000 to reachthe total amount of compensation (i.e., $10,000 + $25,000 = $35,000 in total compensation).10 The parties concur that the Agreement fully and finally resolves any and all claims for damages (includingpunitive damages)—under any legal theory—by granting comprehensive releases to the defined released parties,including BP, while BP expressly continues to deny liability for punitive damages. Additionally, for damagecategories involving RTPs, plaintiffs should not be deemed to concede that baseline damages would provide fullcompensation in the absence of RTPs. They agree only that the total of baseline damages and RTP paymentstogether constitutes compensation acceptable as a compromise in settlement. 14
  • 31. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 25 of 77 Fourth, unlike most class settlements that do not pay benefits until the court’s approvalorder is final and no longer appealable, this Agreement enables class members to receivesettlement payments on an accelerated schedule. Class members can file claims immediatelyfollowing the Court’s determination of fairness. The Court Supervised Settlement Program willprocess those claims and make settlement payments to class members if they execute anindividual release. Thus, the Agreement allows class members to be compensated promptly, andmuch sooner than is normally the case in class action settlements. C. The Proposed Settlement’s Payment Categories The settlement permits Class Members to submit multiple claims and receivecompensation for multiple categories of damage. For each of the categories, BP and the PSCnegotiated claims processes that provide the fullest and fairest compensation possible to eachtype of individual and entity harmed by the Deepwater Horizon Incident.11 In order toaccomplish this goal, the claims process must take into account the individual circumstances ofeach claimant, thereby adding some necessary complexity to the calculation methods. But inevery instance the payment formulas remain transparent, objective, and fair to the individualsand businesses that will be compensated under them.12 In total, the settlement provides for recovery in the following categories of economic andproperty damage or loss:11 Certain business types are excluded from the class, such as oil and gas. Others, such as gaming, banking andfinancial services, insurance, defense contracting industries, and entities that market BP-branded fuel are excludedfor most claims. Also excluded are Federal and State governmental agencies, employees of MDL 2179 defendants,persons and entities that have been paid by the GCCF and executed a GCCF Release, and persons and entitiesengaged in menhaden (“pogy”) fishing and harvesting. Such businesses are excluded either because (1) any claimedlosses are unlikely to have been caused by the DWH Spill and/or (2) the Parties have concluded that such claimscould more appropriately be handled on an individual basis through other pending lawsuits or other settlements.12 It is important to note that nothing in this Agreement is an admission of law or fact by any party, and nothingcontained in the various claims frameworks or evidence called for under such frameworks or otherwise is intendedto create a presumption or inference for any purpose beyond making claims payments pursuant to the settlement. 15
  • 32. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 26 of 77 1. Economic Loss Individual Loss of Wages 3. Vessels of Opportunity Charter Business Economic Loss Payment Multi-Facility Business Economic Loss Start-Up Business Economic Loss Failed Business Economic Loss 4. Vessel Physical Damage Failed Start-Up Business Economic Loss 2. Property Damage 5. Subsistence Damage Loss of Use/Enjoyment of Real Property Coastal Real Property Damage 6. Seafood Compensation Program Wetlands Real Property Damage Realized Real Property Sales Loss The formulas were developed with the assistance of various experts (includingeconomists, accountants, and real estate experts) who analyzed and responded to questions posedby both BP and the PSC throughout the negotiation process. BP has also agreed to fund settlement and claims administration and the notice program;to provide a separate fund of $57 million to promote the Gulf Coast and its waters; to fund asupplemental publicity campaign up to $5 million to be designed and administered by the PSC;and to offer reimbursement to all categories of claimants for accounting services required forfiling their claims. This reduces the paperwork burdens associated with presenting a claim andenhances the fairness of the settlement. 1. Economic Loss a. Individuals Individual workers in the affected regions will be eligible for benefits to offset spill-related losses, in addition to any applicable RTP determined pursuant to a claims process thattakes into account geographic location, nexus of the worker’s injury to the oil spill, and otherrelevant factors. 16
  • 33. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 27 of 77 The standards for establishing causation for individuals are flexible and provideclaimants with multiple options. Causation is presumed for those individuals most likely to havebeen affected by the spill, including those on the coast and those employed in certain seafood-related businesses. Other individual claimants are required to demonstrate a loss of earningsattributable to the spill during May through December 2010 (or other applicable period in thecase of certain Seafood Industry claimants) based on financial information and/or swornstatements from their employer(s). In addition, as described below, certain individual claimantslacking tax documents or other earnings documentation will be eligible for compensation underthe settlement provided that they meet additional causation requirements. The documentation requirements for individual economic loss claims balance the needfor demonstrating causation and lost earnings with recognition of individuals’ varyingemployment circumstances and ordinary record-keeping practices. All claimants must submit asworn claim form and varying types of support. Four documentation categories are established: Category I: Claimants with Tax Information Documents for 2010 and prior periods, including both full-year and seasonal workers, must submit them, along with Pay Period Earnings Documentation, if they possess it. Category II: Claimants without such Tax Information Documents, but who have Pay Period Earnings Documentation or other earnings documentation for 2010 and prior periods, must submit such documentation. Category III: Claimants with Tax Information Documents or Pay Period Earnings Documentation who lack comparable pre-2010 employment data because they were New Entrants To Employment, Career Changers, or had less than 12 months of earning history in the Claiming Job as of April 20, 2010, must provide information for 2010 and prior and subsequent years so that an appropriate basis for comparison of projected and actual 2010 earnings can be established. Category IV: Claimants without any earnings documentation who were employed in Zones A, B, or C must submit sworn written statements, as well as supporting sworn 17
  • 34. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 28 of 77 written statements by their employer(s) and are subject to additional requirements for establishing causation.13 Individual compensation includes several components and depends in part on the amountof documentation provided. Lost earnings are calculated as the estimated difference between aclaimant’s expected earnings from a job within the class geography during May to December2010 (or April 2011 in the case of certain Seafood Industry claimants), and the claimant’s actualearnings during that claim period. Expected earnings are estimated based on consideration of (1)the claimant’s historical earnings or documented anticipated earnings or, for claimants withoutsufficiently documented pre-spill earnings, the claimant’s 2011 earnings; and (2) for certainclaimants with contemporaneous documentation of pre-spill and post-spill earnings, applicationof defined growth factors so as to take more precise account of year-to-year wage increases.Depending on the location and/or industry in which the claimant was employed, and the amountof documentation provided, the claimant may be eligible for an RTP multiple of lost earnings.Eligible claimants may also receive additional compensation for lost health insurance, pensionbenefits, and qualified training costs and qualified job search costs, which will not be multipliedby an RTP. The claims framework also provides cash benefits for workers who incurred trainingor job search costs as a consequence of the oil spill. Compensation calculated using the above-listed factors will be reduced to take account of previous spill-related payments.13 Self-employed individual vendors are compensated subject to a special compensation framework tailored to theirbusiness. Individual Periodic Vendors, who periodically made retail sales of goods or services to Non-LocalConsumers in certain zones during 2009 and 2010, did not maintain a fixed business location in a building fromwhich they made the sales, and do not have Tax Information Documents sufficient to make a claim for BusinessEconomic Loss must provide other information regarding those sales and a supporting Sworn Statement from anadjacent business. Similarly situated Festival Vendors, who engage in comparable activities at defined Festivals ormajor sporting events, need to provide similar documentation, including a sworn statement from the FestivalCoordinator or other individual with knowledge of the Festival Vendor’s activities. 18
  • 35. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 29 of 77 b. Business Business economic damage claimants will also be compensated under the settlement forpost-spill losses of earnings and profits, and all compensation calculations will factor in any pre-spill growth. The compensation amounts for many business economic damage claimants willalso be enhanced by an RTP. The following discussion describes the claims process for pre-existing businesses that lost earnings or profits. The Agreement and accompanying exhibitsdetail a similar process for failed businesses, start-up businesses, and failed start-up businesses. The Claims Administrator will calculate business economic damage claimants’ expectedpost-spill earnings by following a two-step process. Step one calculates the value of thebusiness’s reduction in profit during a claimant-selected loss period (any three or moreconsecutive months of the eight months following the spill), by comparing the post-spill earningsduring the loss period to pre-spill earnings from the same months in a claimant-selectedbenchmark year.14 Step two accounts for expected profits by calculating a claimant-specificfactor that captures the business’s growth trend during the four months immediately precedingthe spill, and applying it, along with a general, economy-wide growth factor, to determine whatthe business’ expected profits would have been during the loss period, but for the spill. The sumof step one (loss calculation) and step two (expected profit but for spill) results in the businessclaimant’s base compensation amount, which may then be enhanced by applying an RTP and/oroffset by prior payments received, depending on the type of business. Businesses must submit documentation to support their claims that reflect their businessstructure, as well as provide their federal tax returns and profit and loss statements (or otherdocuments) evidencing monthly revenues and expenses. Depending on claimant-specific factors,14 Business economic damage claimants can choose 2009, an average across 2008 and 2009, or an average across2007, 2008, and 2009, as their benchmark year. 19
  • 36. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 30 of 77businesses may be required to submit additional documentation, such as documents evidencingclient cancellations that may have depressed earnings during the benchmark period. Businesses in certain geographic zones and industries, such as seafood processing, willnot be required to provide documentation demonstrating causation, while businesses in otherzones will be required to submit varying degrees of evidence of causation. For example,businesses in Fairhope, Alabama fall into Zone B. In order to recover, they must submitevidence of causation. One such form of evidence is documentation of a V-shaped revenuepattern—an aggregate decline of 8.5% or more in total revenues over a period of threeconsecutive months in the eight months following the spill followed by an aggregate increase of5% or more in total revenues over the same period in 2011. In addition to the lost profits calculated by the two-step process described above,claimants may receive an RTP multiple of that amount based on a schedule negotiated by theparties. Total claimant compensation equals lost profits plus the applicable RTP, minus anyOPA payments already received by the claimant from BP or the GCCF. RTP payments varyaccording to the Claimant’s proximity to the Gulf and the precise type of business involved.Seafood processors who process shrimp, crab, and oyster, for instance, will receive four timestheir documented damages (i.e., an RTP of 3.00). Likewise, tourist businesses closest to Gulfwaters will receive over three times their documented damages (i.e., an RTP of 2.5), whiletourism businesses even 220 miles from the Louisiana coast will receive over double theirdocumented damages (i.e., an RTP of 1.25). The proposed settlement provides for similarcompensation methodologies for Start-Up Businesses, Failed Businesses, and Failed Start-UpBusinesses, with modifications tailored to their specific circumstances. In short, the proposed 20
  • 37. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 31 of 77settlement will carefully provide full and fair recompense for economic loss claims submitted byGulf businesses. 2. Property Damage a. Loss Of Use And Enjoyment The Agreement calculates compensation for coastal property damage claims by using aspecified percentage of a standardized property tax applicable to the property parcel; thepercentage used is based on the presence of oil and the environmental sensitivity of the coastalproperty. An RTP is then applied to the base compensation amount. b. Real Property Damage The Agreement also provides compensation for damages to real property in two sub-categories: (1) Coastal Real Property Claims, and (2) Wetlands Real Property Claims. Under the Coastal Real Property Claims Process, claimants will submit their requests tothe Claims Administration Vendor, and if they can satisfy the documentation requirements toestablish ownership, they will recover a percentage of their 2010 Applicable Property Tax for theparcel, varying from 30% to 45%, depending on the applicable compensation category. An RTPof 2.5 will be applied to the Coastal Real Property Compensation Amount. Additionally, ifCoastal Real Property Claimants can establish that they incurred physical damage from responseoperations, they can recover additional compensation (without augmentation by an RTP). Under the Wetlands Real Property Claims Process, two categories are established: (1)Category A, consisting of parcels documented to contain oil on all or part of the relevant acreagebased on several sources, including the published Shoreline Cleanup Assessment Team(“SCAT”) reports; and (2) Category B, consisting of parcels documented by SCAT as “no oilobserved.” Within Category A, claimants would be compensated a minimum of $35,000 peroiled parcel. Claimants in Category B would be compensated a minimum of $4,500 per acre on 21
  • 38. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 32 of 77a per parcel basis. Finally, an RTP of 2.5 will apply to all Wetlands Real Property Claims.Overall, these provisions will ensure that real property claims will be fully and fairlycompensated on a generous basis. c. Realized Sales Losses Relatedly, the Agreement also provides compensation for those who realized sales lossesas a result of the spill. Under the Agreement, individuals and entities who sold residentialparcels in the Real Property Sales Compensation Zone between April 21, 2010 and December31, 2010 will receive compensation for sales contracts executed on or after April 21, 2010 or forother sales contracts that have been subject to a price reduction due to the DWH Spill(foreclosures or like processes are excluded). The amount of recovery is 12.5% of the sale priceand is not eligible for an RTP. 3. Vessels Of Opportunity (“VoO”) Charter Payment The proposed settlement will also provide funds for those who participated in the VoOprogram. First, all working VoO participants will be entitled to receive at least $41,600 incompensation, with the amount increasing for those with larger boats. To guard against doublerecovery, those working VoO participants who also will receive economic loss compensationthat directly involves the use of their VoO vessel (except in the case of compensation paymentsunder the Seafood Program) will have their VoO compensation partially reduced. Second, thoseVoO participants who were never placed on hire to perform actual services on the water will beentitled to receive up to $10,200, with no offset, even if such a “non-working VoO participant”will also be receiving an award under the Seafood Program. VoO claims, being contractual innature and not involving a transfer of tort injury risk, are not eligible for an RTP. 22
  • 39. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 33 of 77 4. Vessel Physical Damage Claims The Agreement also compensates vessel owners for damage to their vessels. Under theAgreement, claimants may recover for physical damage to an eligible vessel (as well as itsequipment or rigging) due to or resulting from either the DWH spill itself or cleanup operations.The amount of recovery is the lesser of the costs necessary to either conduct a reasonable repairof the vessel or to replace the vessel in its entirety. No RTP is applied to this category of claims.Vessels are eligible whether or not they were enrolled in the VoO program; the only vessels thatmay not recover are those that were working for an Oil Spill Response Organization at the timeof the physical injury. 5. Subsistence Damage Payments The Agreement compensates claimants who relied on seafood and wildlife forsubsistence purposes for the total value of the subsistence natural resources that they lost due tothe oil spill, plus an RTP enhancement to compensate for factors including the value ofsubsistence community customs and culture. Subsistence claimants are defined as individualswho fish, hunt, or harvest Gulf of Mexico natural resources, including seafood and game, in atraditional or customary manner and to sustain the basic dietary, economic, shelter, tool, orclothing needs of themselves and their families. Given the economic challenges facingsubsistence claimants, the Claims Administrator will form a dedicated administrative team toassist subsistence claimants with filing claims and will establish field teams to verify largeclaims. Subsistence claims will be augmented by an RTP of 2.25. 6. The Seafood Compensation Program The Seafood Compensation Program, which is described in Exhibit 10 to the SettlementAgreement, ensures that individuals and businesses in the seafood industry harmed by theDeepwater Horizon Incident are made entirely whole. Notably, the amount that BP has agreed 23
  • 40. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 34 of 77to pay to fund the Seafood Compensation Program exceeds the annual revenue of theseindustries many times over. Under the Seafood Compensation Program, Commercial Fishermen, Seafood BoatCaptains, all other Seafood Crew, Oyster Leaseholders, and Seafood Vessel Owners will becompensated for economic loss claims relating to Seafood, including shrimp, oysters, finfish,blue crab, and other species. A $2.3 billion Seafood Compensation Program Amount providesthe funding for eligible claims under the program including shrimp, oysters, finfish, blue crab,and other species. As developed and approved by the Court-appointed neutral, John W. Perry,Jr., the Seafood Compensation Program allocates the funds on multiple criteria—both betweenvarious industries and amongst different industry participants, such as vessel owners, boatcaptains, oyster leaseholders, and seafood crew. The Seafood Compensation Program contains five separate plans to providecompensation to claimants. Each plan contains its own eligibility and documentationrequirements and each describes the specific compensation methods available to claimants. Theindependent methods of calculation for claims in each plan ensures that claimants will becompensated fairly and adequately for economic losses related to Seafood. Vessel owners andboat captains in the shrimp, oyster, finfish, blue crab, and other seafood plans will becompensated in relation to their seafood harvesting revenues from previous years in SpecifiedGulf Waters. Additional payments, such as per-acre compensation to oyster leaseholders andper-share compensation for Individual Fishing Quotas shareholders in the finfish industry areavailable to eligible claimants. Seafood crew—the mates, boatswains, and deckhands other thanthe boat captain—are all eligible for compensation tied to either their former or expected wagesand hours. Those seafood crew members who cannot provide tax forms, financial information or 24
  • 41. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 35 of 77a sworn statement from an employer to establish employment and compensation may be eligiblefor a lump sum payment if they provide sufficient sworn statements from sponsors or attorneys.15 The Seafood Compensation Program allows claimants to file claims for multiple types ofeconomic losses. For example, a shrimping boat captain who also captains a blue crab vesselmay be eligible for compensation under both compensation plans. Additionally, a vessel ownerwho is also the boat captain may be eligible for vessel owner and boat captain compensation.The RTPs provided are generous, ranging from 2.25 to 8.75. 7. The Gulf Coast Promotional Fund BP has also agreed to finance a $57 million fund to promote the Gulf Coast. This fundwill be administered for the benefit of the Gulf region. In particular, the promotional fund isintended to encourage Gulf Coast tourism, as well as to help grow the Gulf’s seafood industry.Economic analysis suggests that for every dollar of advertising directed towards promoting theGulf Coast, one can expect much more in return in increased tourism and seafood revenues.Individual Gulf tourist industry participants are often unable to establish funds like this purely byprivate agreement because the benefits of fund expenditures unavoidably flow to participatingand non-participating businesses alike. Hence, the actual value to the class of the PromotionalFund that BP is agreeing to establish for the benefit of the Gulf far exceeds its already significant$57 million face amount. ARGUMENTI. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. The parties and their counsel (who have many decades of class action and class15 The Seafood Compensation Program Sworn Claim Form may be submitted any time after a Preliminary ApprovalOrder is issued, but no later than 30 days from the date of entry of a Final Order and Judgment of the District Courtafter it rules upon final approval of the Settlement Agreement. 25
  • 42. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 36 of 77settlement experience) collectively agree that the proposed settlement represents a fair,reasonable, and adequate resolution of this dispute and should be preliminarily approved. A. The Settlement Agreement Meets The Standard For Preliminary Approval. Federal Rule of Civil Procedure 23 governs class actions. Under Rule 23, a class actionmay be settled only with the Court’s approval upon a finding that the settlement is “fair,reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). Although the Rule does not explicitlyrequire it, courts generally undertake their Rule 23(e) obligations pursuant to a two-step process:first, the Court undertakes a preliminary review in order to gain information regarding thesettlement prior to issuing class and settlement notice and scheduling a hearing; second,following preliminary approval, the Court holds a final fairness hearing and decides whether toapprove or disapprove the settlement. See MANUAL FOR COMPLEX LITIGATION (FOURTH) [“MCL4TH”] § 21.632, et seq. “The two-step process for evaluation of proposed settlements has beenwidely embraced by the trial and appellate courts.” In re Chinese-Manufactured Drywall Prods.Liab. Litig., MDL No. 2047, 2012 WL 92498, at *7 (E.D. La. Jan. 10, 2012) (citing MCL 4TH §21.6). Should the Court grant this motion to preliminarily approve the settlement, the Court willlater have the opportunity to conduct a thorough fairness hearing to ensure that the settlementmerits final approval in the ultimate analysis. Today, however, the parties start the approvalprocess by requesting preliminary approval. The preliminary approval process provides theopportunity for the Court to study the details of the settlement and elicit the information that itneeds in order to determine, at the final review stage, whether to approve the settlement. SeeMCL 4th § 21.632, et seq. This initial review embodies the Court’s discretion in managingcomplex litigation in order to ensure that the settlement is appropriately postured for finalfairness review and to determine whether to issue notice of the final fairness hearing. During 26
  • 43. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 37 of 77this process of preliminary review, the Court can also consult with the parties and communicateany concerns it may have about the settlement terms. At this preliminary stage, the court makes a “preliminary determination that the proposed[settlement] class satisfies the criteria set out in Rule 23(a) and at least one of the subsections ofRule 23(b).” MCL 4TH § 21.632.16 Additionally, the court makes a preliminary determinationon the fairness, reasonableness, and adequacy of the settlement terms, provides for notice to theclass, and sets the date for the formal fairness hearing. Id.; see also Chinese-ManufacturedDrywall, 2012 WL 92498, at *7. To obtain preliminary approval, the parties need only demonstrate that that the proposedsettlement (i) appears to be the product of serious, informed, non-collusive negotiations, (ii) hasno obvious deficiencies, (iii) does not improperly grant preferential treatment to classrepresentatives or segments of the class, and (iv) falls within the range of possible approval. See,e.g., In re OCA, Inc. Sec. & Deriv. Litig., No. 05-2165, 2008 WL 4681369, at *11 (E.D. La. Oct.17, 2008); accord, e.g., Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982); McNamarav. Bre-X Minerals Ltd., 214 F.R.D. 424, 430 (E.D. Tex. 2002); In re Nasdaq Market-MakersAntitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997); In re Shell Oil Refinery, 155 F.R.D. 552,555 (E.D. La. 1993) (citing MANUAL FOR COMPLEX LITIGATION (SECOND) § 30.44 (1985));Williams v. New Orleans Pub. Serv. Inc., No. 75-1635, 1988 WL 98283, at *1 (E.D. La. Sept. 15,1988). Notably, the standards that apply at this preliminary stage are “not as stringent as thoseapplied to a motion for final approval.” OCA, 2008 WL 4681369, at *11 (citing Karvaly v. eBay,Inc., 245 F.R.D. 71, 86 (E.D.N.Y. 2007)); accord, e.g., Chinese-Manufactured Drywall, 201216 As noted above, Interim Class Counsel are separately moving for preliminary settlement class certification, andfor settlement purposes BP will not oppose the motion. 27
  • 44. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 38 of 77WL 92498, at *7. Rather, preliminary approval constitutes “a determination that there is whatmight be termed ‘probable cause’ to submit the proposal to class members and hold a full-scalehearing as to its fairness.” In re Traffic Exec. Ass’n.-E. R.R., 627 F.2d 631, 634 (2d Cir. 1980);see also Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80, 101 (D. Conn. 2010) (citing In re TrafficExec, 627 F.2d at 634).17 In this settlement, the total recovery that BP has agreed to provide is uncapped; BP’sinitial estimates place its cost at approximately $7.8 billion. The settlement was negotiated andcrafted by the parties with the guiding principle of providing individualized, fair, and fullcompensation for victims of the oil spill. As discussed above, the settlement was negotiated atarm’s length; does not grant any preferential treatment to class representatives; and provides fulland fair compensation for those in each of the damage categories within the class. For these reasons, there can be no serious dispute that the proposed settlement satisfiesthe comparatively modest standards for preliminary approval. Both because it is alreadyapparent that the Agreement meets the standard for final approval and because the Court’sresolution of whether the Agreement has “any obvious deficiencies” or instead “falls within therange of possible approval” is necessarily informed by the standards that will apply at finalapproval, we address these issues in detail in the following section.17 At the formal fairness hearing stage, the Court will conduct a more thorough review than is required now at thepreliminary approval stage. At no point does the process of reviewing the fairness and adequacy of the settlementrise to the level of scrutiny demanded by a trial, however. See, e.g., Int’l Union, United Auto., Aerospace, & Agric.Implement Workers of Am. v. Gen. Motors Corp., No. 07-14074, 2008 WL 2968408, at *22 (E.D. Mich. July 31,2008) (“The question . . . is whether the parties are using settlement to resolve a legitimate legal and factualdisagreement.”) (quotation omitted); UAW v. Gen. Motors Corp., 235 F.R.D. 383, 387 (E.D. Mich. 2006) (“[A]fairness hearing is not a trial, but instead has a very singular and narrow purpose—to determine whether thesettlement at issue is fair, reasonable, and adequate.”); Ass’n For Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D.457, 467 (S.D. Fla. 2002) (“In evaluating these considerations, the Court must not try the case on the merits.”). 28
  • 45. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 39 of 77 B. The Settlement Agreement Meets The More Demanding Requirements For Final Approval. The public interest strongly favors the settlement of class actions. See, e.g., Kincade v.Gen. Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981) (“‘Particularly in class action suits,there is an overriding public interest in favor of settlement.’”) (quoting Cotton v. Hinton, 559F.2d 1326, 1331 (5th Cir. 1977)); Smith v. Crystian, 91 F. App’x 952, 955 (5th Cir. 2004)(similar); Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 843 (E.D. La. 2007) (“Thepublic interest favoring settlement is especially apparent in the class action context where claimsare complex and . . . could lead to years of protracted litigation and sky-rocketing expenses.”); Inre Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004) (“Additionally, there is anoverriding public interest in settling class action litigation, and it should therefore beencouraged.”); In re Exxon Valdez, 229 F.3d 790, 795 (9th Cir. 2000) (“As a result, the generalpolicy of federal courts to promote settlement before trial is even stronger in the context of large-scale class actions.”); Lazar v. Pierce, 757 F.2d 435, 440 (1st Cir. 1985) (“Last, we should pointto the overriding public interest in favor of the voluntary settlement of disputes, particularlywhere class actions are involved.”). Because “settlement is the preferred means of resolving litigation,” there is a “strongpresumption in favor of finding a settlement fair.” Collins v. Sanderson Farms, Inc., 568 F.Supp. 2d 714, 720 (E.D. La. 2008) (quotation omitted); accord, e.g., In re Educ. Testing Serv.Praxis Principles of Learning & Teaching: Grades 7-12 Litig., 447 F. Supp. 2d 612, 619 (E.D.La. 2006); Neff v. VIA Metro. Transit. Auth., 179 F.R.D. 185, 208 (W.D. Tex. 1998). Inevaluating a class action settlement, courts compare the terms of the settlement with “the likelyrewards the class would have received following a successful trial of the case.” Cotton, 559 F.2dat 1330. Nevertheless, courts should avoid engaging in “a trial on the merits” in evaluating the 29
  • 46. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 40 of 77fairness of a settlement. In re Corrugated Container Antitrust Litig., 643 F.2d 195, 212 (5th Cir.1981). Instead, the Court’s independent judgment and the judgment of experienced counsel forthe parties can guide the assessment of the parties’ relative strength in the case, since plaintiffs’and defense counsel seek the most favorable outcome for their clients in the shadow of a fullylitigated trial. Cotton, 559 F.2d at 1330. With those background principles in mind, the Fifth Circuit has set forth six factors toguide a court’s review of whether to approve a class action settlement at the final approval stage: (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and absent class members.Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004) (quoting Reed v. Gen. Motors Corp., 703F.2d 170, 172 (5th Cir. 1983)); accord, e.g., Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669F.3d 632, 639 n.1 (5th Cir. 2012); Newby v. Enron Corp., 394 F.3d 296, 308 (5th Cir. 2004); Inre Lease Oil Antitrust Litig., 186 F.R.D. 403, 431 (S.D. Tex. 1999). Each of these “Reed”factors counsels in favor of preliminary approval. Although these factors are not required to be met for preliminary approval, applyingthem here nevertheless counsels in favor of preliminary approval, especially when viewed intheir totality. See JOSEPH M. MCLAUGHLIN, 2 MCLAUGHLIN ON CLASS ACTIONS: LAW &PRACTICE § 6:7 (8th ed. 2011) (citing Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee, 616F.2d 305, 322-26 (7th Cir. 1980)) (review and application of the six factors is an exercise inbalancing and the balancing decisions made are reviewed for abuse of discretion); see also In reKatrina Canal Breaches Litig., 628 F.3d 185, 194 (5th Cir. 2010) (“We review the districtcourt’s approval of the settlement for an abuse of discretion.”); Newby, 394 F.3d at 300 (“Adistrict court’s approval of a class action settlement may be set aside only for abuse of 30
  • 47. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 41 of 77discretion.”); see also M.D. ex rel. Stukenberg v. Perry, --- F.3d ----, No. 11-40789, 2012 WL974478 at *2 (5th Cir. 2012) (noting a district court’s “inherent power to manage and controlpending litigation”). Indeed, because all six factors are squarely met now, the standard for finalapproval is already convincingly satisfied, though the Court need only grant preliminaryapproval at this time. 1. Absence Of Fraud And Collusion To begin with, there is no suggestion of fraud or collusion in the negotiation of thissettlement. BP and the PSC have been engaged in fiercely contested litigation involvinghundreds of depositions, tens of millions of pages in discovery, hundreds of motions, and otheradversarial preparations for an imminent trial. The parties reached a settlement only aftermonths of hard-fought, contentious negotiation sessions, many of which were mediated andsupervised by Judge Shushan. Dozens of PSC lawyers and hundreds of plaintiffs’ counsel in theMDL have evaluated the fairness of the settlement. The complete absence of contrary evidence,combined with the fact that Judge Shushan personally mediated the settlement over the pastseveral months, should readily lead the Court to conclude there was no fraud or collusion. See,e.g., Collins, 568 F. Supp. 2d at 725 (citing NEWBERG ON CLASS ACTIONS § 11:51 (4th ed. 2010)(explaining that the presumption against finding fraud or collusion in a settlement in the absenceof contrary evidence is strengthened when a Magistrate Judge participates in the settlementprocess)). The absence of collusion can also be presumed based on the overall fairness andgenerosity of the proposed settlement terms under the commonsense “proof is in the eating test.”Bowling v. Pfizer, Inc., 143 F.R.D. 141, 152 (S.D. Ohio 1992). Under this test, if the terms ofthe proposed settlement are fair, then the reviewing court can deem the formative negotiations tohave been proper. See Corrugated Container, 643 F.2d at 211 (“In general, we think a 31
  • 48. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 42 of 77settlement should stand or fall on the adequacy of its terms . . . If the terms are fair, the courtmay reasonably conclude that counsel did perform adequately.”); Turner, 472 F. Supp. 2d at 846(“Finally, a presumption exists that settlement negotiations were conducted properly in theabsence of collusion if the terms of the proposed settlement are demonstrably fair.”). Likewise, because the settlement has been reached at arm’s length without fraud orcollusion, “the trial court ‘should be hesitant to substitute its own judgment for that of counsel.’”Ruiz v. McKaskle, 724 F.2d 1149, 1152 (5th Cir. 1984) (per curiam) (citation omitted); see alsoGranada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992) (“Absent evidence offraud or collusion, such settlements are not to be trifled with.”). Rather, the fact “that thissettlement is the negotiated result of an adversarial proceeding is an indication of its fairness.”Domingue v. Sun Elec. & Instrumentation, Inc., No. 09-682, 2010 WL 1688793, at *1 (M.D. La.Apr. 26, 2010); see also In re Train Derailment Near Amite La., MDL No. 1531, 2006 WL1561470, *19 (E.D. La. May 24, 2006) (“The fact that a class action settlement is reached afterarms’ length negotiations by experienced counsel generally gives rise to a presumption that thesettlement is fair, reasonable, and adequate . . . .”); In re Mills Corp. Sec. Litig., 265 F.R.D. 246,255 (E.D. Va. 2009) (“Negotiations were sufficiently thorough, contentious, and at arm’s lengthto ensure the propriety of Class Counsel’s decision to enter into the settlement and theproceedings leading thereto.”). Notably, the parties negotiated over attorneys’ fees for class counsel only after reachingan agreement on the relief to be afforded class members. “‘Because the parties have not agreedto an amount or even a range of attorneys’ fees, there is no threat of the issue explicitly taintingthe fairness of settlement bargaining.’” In re Heartland Payment Sys., Inc. Customer Data Sec.Breach Litig., --- F. Supp. 2d ----, MDL No. 09-2046, 2012 WL 948365, at *16 (S.D. Tex. Mar. 32
  • 49. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 43 of 7720, 2012) (quoting Turner, 472 F. Supp. 2d at 845); Lucas v. Kmart Corp., 234 F.R.D. 688, 693(D. Colo. 2006) (“The fact that the parties did not discuss damages until they had madesubstantial progress on the injunctive issues, and did not discuss attorneys’ fees until all otherissues were virtually finalized, is also indicative of a fair and arm’s-length process.”); McAlarnenv. Swift Transp. Co., Inc., No. 09-1737, 2010 WL 365823, at *12 (E.D. Pa. Jan. 29, 2010)(“Furthermore, Class counsel did not discuss attorneys’ fees and costs until after they had cometo terms with Defendant over substantive relief to the Class.”). Moreover, the Agreement has no obvious deficiencies, and does not grant preferentialtreatment to class representatives or to segments of the class. See Harris v. Vector Mktg. Corp.,No. 08-5198, 2011 WL 1627973, at *9 (N.D. Cal. Apr. 29, 2011) (“[T]he absence of anypreferential treatment supports preliminary approval of the Settlement Agreement.”); Brunson v.La.-Pac. Corp., 818 F. Supp. 2d 922, 927 (D.S.C. 2011) (“There are no grounds to doubt thefairness nor are there other obvious deficiencies in the Settlement, such as unduly preferentialtreatment of Plaintiffs or of segments of the class . . . .”); Louie v. Kaiser Found. Health Plan,Inc., No. 08-0795, 2008 WL 4473183, at *7 (S.D. Cal. Oct. 6, 2008) (preliminarily certifying aclass for settlement purposes where the division, even as between formal sub-classes, was theproduct of “reasonable balancing”). Overall, then, the first factor counsels strongly in favor ofapproval. Finally, Magistrate Judge Shushan played an important supervisory role in facilitatingand mediating the settlement. Her evenhanded and daily, and often minute-by-minute, effortsthroughout the last three months of negotiations strongly counsel in favor of the approving thesettlement. See, e.g., Maywalt v. Parker & Parsley Pet. Co., 67 F.3d 1072, 1079 (2d Cir. 1995)(“[T]he supervision of settlement negotiations by a magistrate judge, as occurred here, makes it 33
  • 50. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 44 of 77less likely that . . . [class counsel have promoted] their own interests over those of the class.”); Inre Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y. 2009) (settlementreached after mediation is entitled to a presumption of arms-length dealings and fairness), aff’dsub nom. Priceline.com, Inc. v. Silberman, 405 F. App’x 532 (2d Cir. 2010); Smith v. TowerLoan of Miss., Inc., 216 F.R.D. 338, 353 (S.D. Miss. 2003) (upholding settlement where theMagistrate Judge’s “mediation efforts” helped facilitate the settlement); In re Catfish AntitrustLitig., 939 F. Supp. 493, 497 (N.D. Miss. 1996) (upholding settlement where the MagistrateJudge “was intimately involved with the settlement negotiations among the parties in thisaction”). 2. Complexity, Expense, And Likely Duration Of The Litigation There can be “no dispute that this case is one of the most procedurally complex,expensive, and potentially lengthy cases” in the history of the United States. Shell Oil, 155F.R.D. at 559. Indeed, this case easily surpasses Shell Oil in complexity. Given theunprecedented complexity of this litigation, it is appropriate to “consider the vagaries oflitigation and compare the significance of immediate recovery by way of the compromise to themere possibility of relief in the future, after protracted and expensive litigation.” Id. at 560(quotation omitted); see also Rodriguez v. West Publ’g Grp., 563 F.3d 948, 966 (9th Cir. 2009)(affirming approval of settlement where “a number of serious hurdles remained” for theplaintiffs”); In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (“Complex litigation. . . can occupy a court’s docket for years on end, depleting the resources of the parties and thetaxpayers while rendering meaningful relief increasingly elusive. Accordingly, the FederalRules of Civil Procedure authorize district courts to facilitate settlements in all types of litigation,not just class actions.”); Billitteri v. Secs. Am., Inc., No. 09-1568, 2011 WL 3586217, at *10(N.D. Tex. Aug. 4, 2011) (noting there was little doubt that the amount of time it would take to 34
  • 51. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 45 of 77recover on behalf of class members “would measure in years rather than the monthscontemplated by the parties at this stage”); Klein v. O’Neal, 705 F. Supp. 2d 632, 651 (N.D. Tex.2010) (“When the prospect of ongoing litigation threatens to impose high costs of time andmoney on the parties, the reasonableness of approving a mutually-agreeable settlement isstrengthened.”). Notwithstanding the extraordinary amount of litigation progress that has been made in thetwo years since the DWH Spill, the remaining trial and appellate proceedings, if litigated throughfinal judgment, could last for a decade or more.18 Each of the three previously defined phases ofthe Limitation and Liability trial raises complex issues of law, science, and operative fact.Following these three phases, individual plaintiffs would then need to establish their entitlementto damages, along with the quantum of damages, during trial phases that have not even beenscheduled. As a result, to obtain final judgments in this Court could take many years. SeeCollins, 568 F. Supp. 2d at 726 (finding a potential trial lasting “several weeks” weighs in favorof approving a settlement); Faircloth v. Certified Fin. Inc., No. 99-3097, 2001 WL 527489, at *4(E.D. La. May 16, 2001) (approving settlement where trial “was estimated to last at least twoweeks”); In re Combustion, Inc., 968 F. Supp. 1116, 1127 (W.D. La. 1997) (finding “theprospect of a trial lasting months” weighs heavily in favor of approving a settlement); Shell Oil,155 F.R.D. at 560 (“[E]ven a six month trial is considered extremely lengthy and the expense for18 Complex cases such as this can take decades to resolve. For instance, the Exxon Valdez spill occurred in March1989, but litigation remains ongoing today, over twenty-three years after the spill, and eighteen years after the 1994trial. See, e.g., Isaac Arnsdorf, Exxon Valdez to Be Junked Years After Worst U.S. Ship Spill,http://www.bloomberg.com/news/2012-03-20/exxon-valdez-sold-for-scrap-years-after-worst-u-s-tanker-spill.html(Mar. 20, 2012) (“Last month, a judge ruled that U.S. and Alaskan governments could pursue further damageclaims.”). Likewise, while the Amoco Cadiz spill occurred in March 1978, the Seventh Circuit was still resolvinglitigation arising out of the spill as of September 1993. See In re Oil Spill by Amoco Cadiz, 4 F.3d 997 (7th Cir.1993). Absent a settlement, litigation of this case promises to take as much time as those cases, if not more. Prior tothe testimony of a single witness at the now-stayed Limitation and Liability trial, this case has heard approximately1,200 motions, and the docket includes more than 6,200 entries. 35
  • 52. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 46 of 77the parties, the claimants, and the judicial system would be enormous.”). Moreover, should thiscase proceed to trial, it almost certainly would become more complicated, since there is noreason to suppose that the case would become less complex or contentious as trial began. SeeFaircloth, 2001 WL 527489, at *4 (concluding from the “contentious motion practice on behalfof virtually all parties involved” that the case “would undoubtedly continue on a protractedlitigation path absent approval of the proposed settlement agreement”). Nor would the road end with the entry of judgments in this Court. This litigation hasraised numerous difficult legal questions under federal statutory and general maritime law, manyof first impression. See id. (approving a settlement where the statutes were “extremely intricateand technical”). Given the complexities inherent in litigation of this nature, it is not surprisingthat nearly twenty years elapsed between the Exxon Valdez oil spill and the Supreme Court’sdecision in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). Such litigation represents “anenormous financial and psychological burden on all parties involved” and counsels in favor ofsettlement. Combustion, 968 F. Supp. at 1127; see also Rodriguez, 563 F.3d at 966 (noting thatthe “[i]inevitable appeals would likely prolong the litigation, and any recovery by classmembers, for years”); Ass’n For Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 469(S.D. Fla. 2002) (“[A]bsent settlement, this matter clearly will require a protracted and expensivetrial and appeal, under circumstances where the ultimate results are highly uncertain.”); Smith v.Ajax Magnethermic Corp., No. 02-0980, 2007 WL 3355080, at *6 (N.D. Ohio Nov. 7. 2007)(“Absent a settlement, there is the potential for further protracted litigation and the additionalexpenditure of significant money, time, and resources. Moreover, Plaintiffs are not assured ofrecovery upon the completion of the litigation. A fair settlement, therefore, has significant meritas a resolution to this matter.”). 36
  • 53. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 47 of 77 Because “the most controversial and hard-fought of all the issues in this case” remain tobe litigated, Salinas v. Roadway Express, Inc., 802 F.2d 787, 790 (5th Cir. 1986) (per curiam),this settlement “eliminates the transaction costs that further proceedings would impose” and“provides relief for the class sooner than continued litigation would,” Ayers, 358 F.3d at 369.For the parties, it is therefore entirely “proper to take the bird in the hand instead of a prospectiveflock in the bush.” Shell Oil, 155 F.R.D. at 560. This is particularly true given that the “bird inthe hand” includes RTPs, which means that the total compensation being paid is severalmultiples greater than what plaintiffs claim as their presently demonstrable injury. The secondfactor counsels strongly in favor of approval. 3. The Stage Of The Proceedings And Amount Of Discovery Completed The third factor “asks whether the parties have obtained sufficient information to evaluatethe merits of the competing positions.” In re Educ. Testing Servs., 447 F. Supp. 2d 612, 620(E.D. La. 2006) (quotations omitted). “Thus, the question is not whether the parties havecompleted a particular amount of discovery, but whether the parties have obtained sufficientinformation about the strengths and weaknesses of their respective cases to make a reasonedjudgment about the desirability of settling the case on the terms proposed . . . .” Id. at 620-21. While the question may not be “whether the parties have completed a particular amountof discovery,” id. at 620, in this case there can be no doubt that the parties have completed anextraordinary amount of discovery. The numbers are breathtaking. Over the course of 19months, the parties have deposed 311 fact and expert witnesses with 7,416 documents marked asdeposition exhibits. The parties have produced approximately 90 million pages of documentsand approximately 20 terabytes of data. By any measure, the amount of discovery that hasalready occurred is more than sufficient to ensure a fair settlement. Cf. Faircloth, 2001 WL527489, at *4 (approving a settlement where “thousands” of pages were produced). 37
  • 54. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 48 of 77 Significantly, the Fifth Circuit has said that formal discovery is not a prerequisite to theapproval of a settlement. See Newby, 394 F.3d at 306. Indeed, “[g]enerally speaking, asettlement should stand or fall on the adequacy of its terms.” Id. (alterations and quotationomitted); see also Corrugated Container, 643 F.2d at 211 (rejecting the argument that“representation in the settlement process is necessarily inadequate unless informed by theprocess of discovery”). Here, in light of the staggering amount of discovery that has beencompleted in a compressed timeframe, the Court may presume that the settlement represents aninformed, educated, and fair resolution of this dispute. See, e.g., Turner, 472 F. Supp. 2d at 847;Feinberg v. Hibernia Corp., 966 F. Supp. 442, 445 (E.D. La. 1997); DeHoyos v. Allstate Corp.,240 F.R.D. 269, 292 (W.D. Tex. 2007). Clearly, the massive information developed to dateleaves all parties in a position to assess their respective positions in fine-grained detail and makea reasonable decision on settlement; nothing more, and in fact much less, is required. See, e.g.,Combustion, 968 F. Supp. at 1127. 4. The Probability Of Plaintiffs’ Success On The Merits Consideration of the factor relating to the “probability of the plaintiffs’ success on themerits” also supports settlement. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982); seealso Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 245 (6th Cir.2011). “Counsel should have ‘sufficient information, through adequate discovery, to reasonablyassess the risks of litigation vis-à-vis the probability of success . . . .” Trombley v. Nat’l CityBank, 759 F. Supp. 2d 20, 26 (D.D.C. 2011) (quoting Radosti v. Envision EMI, LLC, 717 F.Supp. 2d 37, 62 (D.D.C. 2010)); Meijer, Inc. v. Warner Chilcott Holdings Co. III, 565 F. Supp.2d 49, 57 (D.D.C. 2008)). Evaluating this factor requires the Court to compare the settlement terms “with the likelyrewards the class would have received following a successful trial of the case.” Reed, 703 F.2d 38
  • 55. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 49 of 77at 172. Thus, “the court must compare the terms of the compromise with the likely rewards oflitigation.” In re Initial Pub. Offering Sec. Litig., 243 F.R.D. 79, 83 (S.D.N.Y. 2007) (quotationomitted). The Court, however, “must not try the case in the settlement hearings because the verypurpose of the compromise is to avoid the delay and expense of such a trial.” Reed, 703 F.2d at172 (quotation omitted). The focus is on policing settlements in light of the principle that theymust not “come too early to be suspicious.” In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100,105 (D.D.C. 2004). With the extensive motion practice on the B1 amended complaint, the reams of discoveryin this case, and the imminence of the Phase I trial, it is clear that the settlement here is notcoming too early, in a fashion suggesting that parties’ counsel lacked sufficient data to evaluatethe strengths and weaknesses of their claims, or in a way that would interfere with or obfuscatethis Court’s ability to assess the probability of success on the parties’ various claims anddefenses. The negotiations here were protracted and reached conclusion only as the start of thetrial loomed and only after many complicated issues were resolved with Magistrate JudgeShushan’s assistance. The parties, and the Court, are highly informed on the facts and legaltheories pertinent to the merits of the claims and defenses on which this litigation, absentsettlement, would ultimately be decided. While the PSC and BP have markedly different opinions regarding the strength of theclaims at issue and ultimate recovery in this litigation, there can be no doubt that both sides haveadvanced important arguments, and neither side can confidently expect a complete victory or onethat would not be subject to the potential risk and/or delay of appeal. This Court is well aware ofthese issues and it can invoke its experience in the litigation that has occurred to date in weighingthis fourth factor. See Heartland Payment Sys., 2012 WL 948365, at *17 (“The court is well 39
  • 56. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 50 of 77aware of the parties’ positions in this case, the legal issues, and the risks to the ConsumerPlaintiffs should litigation continue.” (citing Stott v. Capital Fin. Servs., Inc., 277 F.R.D. 316,344 (N.D. Tex. 2011)). This factor favors approval of the proposed settlement. 5. Range Of Possible Recovery Consistent with the fact that there is litigation risk to both sides, the Agreement providesfor compensation somewhere between the best-case scenarios envisioned by either side. “[T]heessence of a settlement is compromise. A just result is often no more than an arbitrary pointbetween competing notions of reasonableness.” In re Corrugated Container Antitrust Litig., 659F.2d 1322, 1325 (5th Cir. 1981). Thus, the “trial court should not make a proponent of aproposed settlement justify each term of settlement against a hypothetical or speculative measureof what concessions might have been gained; inherent in compromise is a yielding of absolutesand an abandoning of highest hopes.” Cotton, 559 F.2d at 1330 (quotation omitted). In otherwords, the “fact that the plaintiff might have received more if the case had been fully litigated isno reason not to approve the settlement.” Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir. 1989);see also Combustion, 968 F. Supp. at 1129 (“The proposed settlement need only reflect a fair,reasonable, and adequate estimation of the value of the case in view of what might happen attrial.”). In this case, the proposed settlement provides more than sufficient and adequatecompensation to satisfy this standard. This is true for several reasons, including the following:(1) in the Agreement, BP has voluntarily assumed the responsibility to pay not only its fair shareof the recovery necessary to make the proposed class members whole, but to pay allcompensatory damages to class members; and (2) BP has agreed to pay RTPs applicable to manycategories of class members. Under the baseline process of “comparing the settlement to theestimated recovery times a multiplier [i.e., a percentage multiplier < 1] derived from the 40
  • 57. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 51 of 77likelihood of prevailing on the merits,” which the Fifth Circuit has counseled is a touchstone ofthe analysis here, see Corrugated Container, 643 F.2d at 217, this proposed settlement, with its“risk transfer premium” feature (which adds multipliers of 1 or greater than 1 to the basecompensation applicable to many types of claims), easily passes muster. Were the settlement tobe rejected, further litigation would be unlikely to provide the plaintiffs with the negotiatedRTPs, so any consideration of the range of possible outcomes favors approval of the settlement.See, e.g., Ayers, 358 F.3d at 373. Notably, the baseline goal is to compensate the Settlement Class Members for alldemonstrable economic loss claims that are defined in the Agreement’s damage categories. Therecoveries by Class Members under the Agreement are not discounted while certain other claimsthey possess are reserved.19 Collectively, that set of outcomes falls well within the reasonablebounds of a fair settlement. The fifth factor thus likewise robustly supports approval. 6. Opinions Of Class Counsel, Class Representatives, And Absent Class Members Here, the PSC and BP both strongly believe that the proposed settlement represents a fairand reasonable resolution of this sharply contested litigation. Where “counsel for both partieshave significant experience in litigating and negotiating settlement of class actions,” this fact isstrong evidence that the settlement is fair and reasonable. DeHoyos, 240 F.R.D. at 287(quotations omitted); Cotton, 559 F.2d at 1330 (“In performing this balancing task, the trial courtis entitled to rely upon the judgment of experienced counsel for the parties.”); Turner, 472 F.19 Six categories of claims are expressly reserved and explicitly defined in the Agreement. They may besummarized briefly as follows: (1) bodily injury claims; (2) claims of BP shareholders in any derivative or directactions; (3) claims of natural persons for moratoria losses; (4) claims relating to menhaden (or “pogy”) fishing,processing, selling, catching, or harvesting; (5) economic damage claims suffered by entities or employees in thebanking, gaming, financial, insurance, oil and gas, real estate development, defense contractor industries, andentities selling or marketing BP-branded fuel (including jobbers and branded dealers); and (6) claims for punitivedamages against Halliburton and Transocean. 41
  • 58. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 52 of 77Supp. 2d at 852 (same principle); Combustion, 968 F. Supp. at 1128 (noting it was “not lost onthe Court that counsel for the compromising parties, some of the most able attorneys in thecountry, when armed with extensive knowledge of the facts, decided that settlement rather than a. . . trial was in the best interest of their clients”); In re OCA, 2008 WL 4681369, at *11 (“Thesettlement was reached after over three years of litigation and extensive discovery, and thuscounsel for all parties were experienced and familiar with the factual and legal issues in thecase”); San Antonio Hispanic Police Officers Org., Inc. v. City of San Antonio, 188 F.R.D. 433,461 (W.D. Tex. 1999) (“In reviewing the opinions of counsel, the Court is to bear in mind thatcounsel for each side possess the unique ability to assess the potential risks and rewards oflitigation . . . .” (quotation omitted)). The Fifth Circuit has recognized that courts must rely to a large degree on the judgmentof competent counsel, terming such counsel the “linchpin” of an adequate settlement. Reed, 703F.2d at 175 (further noting “the value of the assessment of able counsel negotiating at arm’slength cannot be gainsaid” because “[l]awyers know their strengths and they know where thebones are buried”); see also Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978) (holding that if experienced counsel determine a settlement is in the class’s best interests,“the attorney’s views must be accorded great weight”). Here, counsel for both the PSC and BP have many decades of experience in prosecutingand defending class action lawsuits. Collectively, they have been involved in some of the largestand most complex class and mass tort settlements in the nation’s history—e.g., asbestos, tobacco,retiree healthcare benefits, insurance, discrimination, pharmaceutical products, etc. In fact,counsel for the PSC and BP have previously been lead counsel in reaching two of the largestsettlements ever negotiated in this country—i.e., the tobacco settlement with the States (the 42
  • 59. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 53 of 77PSC’s Mr. Rice), and union retiree health care benefits for General Motors (BP’s counsel Mr.Godfrey, acting as GM’s counsel in the retiree health care class settlements).20 These and otherextraordinarily experienced negotiating counsel were also armed with the facts developedthrough the extensive and fully completed Phase I discovery and Phase I trial preparations. Allof that groundwork deeply informed the reasonable assessments each side reached concerningthe range of outcomes in this case, which is much farther along than cases of concern addressedin certain judicial decisions, where other litigation was being settled in its nascent stages. Not sohere. The sixth factor therefore also supports preliminary approval. * * * In all, the Court’s present task is made relatively uncomplicated thanks to the factors setout above. The settlement’s structure guarantees fair treatment of each individual claimant,regardless of type or extent of damage. Accordingly, the parties respectfully request that theCourt preliminarily approve the settlement and schedule a formal fairness hearing where it willconsider whether to grant final approval to the settlement.II. THE PROPOSED NOTICE TO THE CLASS COMPLIES WITH RULE 23(C)(2) AND RULE 23(E). Where parties seek certification of a settlement class pursuant to Rule 23(b)(3) andapproval of a settlement pursuant to Rule 23(e)—as the PSC does here by separate motion,unopposed by BP—“notice of the class action must meet the requirements of both Rule 23(c)(2)and Rule 23(e).” In re CertainTeed Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 480(E.D. Pa. 2010); accord In re Serzone Prods. Liab. Litig., 231 F.R.D. 221, 231 (S.D. W. Va.2005). In this case, the parties jointly submit that the agreed-upon comprehensive notice20 See UAW v. Gen. Motors Corp., No. 05-73991, 2006 WL 891151 (E.D. Mich. Mar. 31,2006), aff’d Int’l Union,United Auto., Aerospace, & Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007). 43
  • 60. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 54 of 77program easily satisfies these requirements. A. The Proposed Notice Distribution Method And Notice Contents Comply With Rule 23(c)(2). Rule 23(c)(2) provides that where a class is certified pursuant to Rule 23(b)(3), “the courtmust direct to class members the best notice that is practicable under the circumstances,including individual notice to all members who can be identified through reasonable effort.”Fed. R. Civ. P. 23(c)(2)(B). The notice is required to state (1) the nature of the action; (2) thedefinition of the class certified; (3) the class claims, issues or defenses; (4) that a class membermay enter an appearance though an attorney if the member so desires; (5) that the court willexclude from the class any member who requests exclusion; (6) the time and manner forrequesting exclusion; and (7) the binding effect of a class judgment under Rule 23(c)(3). Id. The notice protocol agreed upon by the parties is fully described in the Declaration ofCameron R. Azari, Esq., (Ex. 1); the Declaration of Katherine Kinsella (Ex. 2); and theDeclaration of Shannon R. Wheatman, Ph.D. (Ex. 3). As the exhibits make plain, the notice plancomplies with all requirements pertaining to both the manner of distribution and the contents ofthe notice. 1. The Proposed Notice Distribution Method Satisfies Rule 23(c)(2). Courts routinely approve class notice distribution plans far less robust than thatcontemplated here. For example, in In re Chinese-Manufactured Drywall, the court approved anotice program consisting of nothing more than individual notice to all class members and theircounsel, and the posting of the settlement agreement on the Court’s MDL website. See 2012 WL92498, at *13. The Court found that the notice was “written in plain and straightforwardlanguage; it also objectively and neutrally apprises all Class Members on the nature of the action,the definition of Class and Subclasses, and relevant deadlines and restrictions, as well as the date 44
  • 61. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 55 of 77and location for the final Fairness Hearing.” Id. And in In re Combustion, in addition to mailing individual notice to class members, theclass notice was “published in two local newspapers, the Baton Rouge Morning Advocate andthe Denham Springs News on March 13, 1997.” 968 F. Supp. at 1129. The court found the“direct mailings as well as publication in two local newspapers [to be] reasonable and sufficientto satisfy the Due Process requirement of notice, as well as all notice requirements of [Rule 23].”Id.; see also In re OCA, 2008 WL 4681369, at *16 (notice plan calling for direct mailing to classmembers, as well as publication in the national edition of the Wall Street Journal and distributionby a news wire and the Depository Trust Company’s Legal Electronic Notice System wassufficient). As discussed above, the Agreement provides for both individual and media notice. Thus,individual notice will be mailed to every plaintiff in any lawsuit that has been consolidated intothe MDL and every plaintiff who has filed a short-form joinder into the B1 Master Complaint (asamended), as well as other available lists of potential class members. To ensure that noindividuals are unintentionally omitted, all addresses will be checked against the NationalChange of Address Database. Moreover, because “Rule 23 itself contemplates that current address information mightnot be available for all potential class members,” Eatmon v. Palisades Collection LLC, No. 08-306, 2011 WL 147680, at *4 (E.D. Tex. Jan. 18, 2011), the parties have also agreed upon amassive, nationwide media effort that will include publication in (1) leading national consumermagazines; (2) trade, business, and specialty publications; (3) local newspapers; (4) AfricanAmerican, Vietnamese, Spanish, and Cajun language publications; (5) local televisionadvertising; (6) local radio advertising; (7) online banner advertising; (8) an informational 45
  • 62. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 56 of 77release; (9) a nationally televised public service announcement; and (10) a case website. Thisstate of the art notice plan is more than sufficient to comply with the dictates of Rule 23(c)(2)(B).See, e.g., MCL 4TH § 21.311 (“Publication in magazines, newspapers, or trade journals may benecessary if individual class members are not identifiable after reasonable effort or as asupplement to other notice efforts.”). Further, the Court may take judicial notice of thesignificant media attention engendered by every aspect of this litigation, and thus the resultingpress coverage the settlement will generate. Independent media coverage will increase thedissemination of information about the settlement and thereby magnify the effect of formalnotice. 2. The Proposed Notice Contents Satisfy Rule 23(c)(2). In addition to satisfying the distribution requirements, the proposed notice also satisfiesthe requirements pertaining to its contents. In compliance with Rule 23(c)(2)(B), the proposednotice states (1) the nature of the action; (2) the definition of the class certified; (3) the classclaims, issues, or defenses; (4) that a class member may enter an appearance though an attorneyif the member so desires; (5) that the court will exclude from the class any member who requestsexclusion; (6) the time and manner for requesting exclusion; and (7) the binding effect of a classjudgment under Rule 23(c)(3). See In re OCA, 2008 WL 4681369, at *15 (approving classnotice where the “plain language of the Notice apprises all class members of the nature of theaction, the definition of the class, the class claims and the defenses, the class members’ right tobe heard, the class members’ right to exclusion, the time and manner for requesting exclusion,and the binding effect of a class judgment”) (citations omitted). The notice does so in simpleterms written in plain English. As the experts at Hilsoft Media and Kinsella Media haveconcluded, “The Notices have been designed to provide a clear, concise, plain languagestatement of Class Members’ legal rights and options.” Azari Decl. ¶ 23; see also Kinsella Decl. 46
  • 63. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 57 of 77¶ 7 (concluding that the notice plan “is a multi-faceted notification effort that fully meets therequirements of Rule 23(c)(2) of the Federal Rules of Civil Procedure”). The settlement notice will direct class members to a website where class members canview relevant materials, including the Settlement Agreement with all Exhibits, the Bon Secourclass action complaint, the Court’s orders relating to the settlement, instructions regarding howto submit a claim, as well as other pertinent pleadings and informational materials. The websitewill include a list of frequently asked questions, and the list will be updated regularly to reflectany areas of common concern. In addition, notice will include a toll-free telephone number forclass members to contact the claims administrator to obtain additional information about thesettlement and the claims process. The proposed notice will apprise class members of thematerial terms of the settlement and outline the procedures and related deadlines. These includehow a class member may exclude himself, herself, or itself from the class or object to thesettlement’s terms. The notice also informs class members of the date and place of the hearing atwhich the Court will consider final approval of the settlement. B. The Proposed Notice Complies With Rule 23(e). In contrast to the form of notice of certification for a Rule 23(b)(3) class as required byRule 23(c)(2)(B), the form of notice for a settlement under Rule 23(e) is left in the Court’sdiscretion to a greater degree. Thus, under the Rules, the sole requirement is that the Court“direct notice in a reasonable manner to all class members who would be bound by theproposal.” Fed. R. Civ. P. 23(e)(1) (emphasis added). Under this Rule, subject to the minimumrequirements of due process, the Court has complete discretion over the form and manner ofnotice. See, e.g., Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979) (notingthe “mechanics of the notice process are left to the discretion of the district court subject only tothe broad ‘reasonableness’ standards imposed by due process”); Navarro-Ayala v. Hernandez- 47
  • 64. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 58 of 77Colon, 951 F.2d 1325, 1337 (1st Cir. 1991) (same principle); Quigley v. Braniff Airways, Inc., 85F.R.D. 74, 77 (N.D. Tex. 1979) (noting a district court’s “virtually complete discretion as to themanner and method of notice”). The requirements of due process are straightforward in the settlement context. Noticemust only be “reasonably calculated, under all the circumstances, to apprise interested parties ofthe pendency of the [settlement] and afford them an opportunity to present their objections.”Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); accord, e.g., Int’l Union,United Auto., Aerospace & Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d615, 629 (6th Cir. 2007). Significantly, compliance with Rule 23(c)(2) itself can satisfy the DueProcess Clause. See In re Enron Corp. Secs., Derivs., & “ERISA” Litig., No. MDL-1446, 2008WL 4178151, at *2 (S.D. Tex. Sept. 8, 2008). The extensive notice program here is eminently reasonable and, in fact, is exceptionallyfar-reaching. Both BP and the PSC have retained experts to ensure that the notice program morethan complies with all requirements imposed by the Federal Rules. For instance, BP has retainedHilsoft Notifications. Hilsoft Notifications has been responsible for dozens of class action noticeprograms, including for the In Re Trans Union privacy litigation—which included 190 millionclass members and required use of the Internet, magazines, newspapers, and both television andradio. See generally In re Trans Union Corp. Privacy Litig., 629 F.3d 741 (7th Cir. 2011). ThePSC, in turn, has retained Kinsella Media. Kinsella Media also specializes in providing classaction notices in complex litigation and has spent hundreds of millions of dollars on mediaoutreach efforts to provide notice in over 700 cases. The experts at Hilsoft Notifications and Kinsella Media have developed thecomprehensive notice program proposed in this case. As noted above, Hilsoft Notifications has 48
  • 65. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 59 of 77estimated, using the traditional sources in the field and computer modeling, that 95% of theadults in the Gulf Coast will be exposed to class notice materials 8.8 times on average, and 83%of U.S. adults will be exposed 3.8 times on average. See Azari Decl. ¶ 19. Experts in the fieldrefer to a notice program with benchmarks reaching that level as having both significant “reach”and “frequency.” Id. ¶¶ 12-14 & n.2; see also id. ¶ 20 (“In my experience, the projected reachand frequency of the Notice Plan media effort in the Gulf Coast Areas will surpass that of thevast majority of other court-approved notice programs, and has been designed to meet andexceed due process requirements. The reach and frequency to all U.S. adults is also consistentwith the most thorough and expansive class action media notice efforts.”); Kinsella Decl. ¶ 10(stating that the reach and frequency may be even greater than reported, as certain local andcommunity newspapers, trade publications, and other publications are not measured). In short, the proposed notice program is extraordinarily robust, and far and away exceedsthe minimum requirements imposed by the Federal Rules and thus of the Due Process Clause.The Court should have no reluctance in approving the proposed notice program.21III. THE COURT SHOULD ADJOURN THE LIMITATION AND LIABILITY TRIAL UNTIL AFTER THE FAIRNESS HEARING. To facilitate settlement, BP respectfully requests (and the PSC does not object) that theCourt should adjourn the Limitation and Liability trial pending this Court’s final review of thesettlement through the fairness hearing process. The law is plain that the Court has the power tostay all matters in a MDL pending final approval of a proposed settlement. See, e.g., In re SonyCorp. SXRD Rear Projection Television Mktg., Sales Practices & Prods. Liab. Litig., MDL No.21 In the coming days, BP and the PSC will request, by separate motion, that the Court a guardian ad litem,consistent with Section 31 of the Settlement Agreement. The purpose of appointing a guardian ad litem is toprovide a neutral party whose sole responsibility is to assess the fairness of the proposed Settlement for those classmembers who lack the capacity to determine for themselves whether the proposed Settlement adequately and fairlyrepresents their interests. 49
  • 66. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 60 of 7709-2102, 2010 WL 1993817, at *6 (S.D.N.Y. May 19, 2010); In re Napster, Inc. CopyrightLitig., MDL No. 1369, 2007 WL 2907892, at *2 (N.D. Cal. Oct. 2, 2007); cf. Landis v. N. Am.Co., 299 U.S. 248, 254 (1936) (explaining that “the power to stay proceedings is incidental to thepower inherent in every court”). The fact that BP has not requested a complete stay of all litigation counsels in favor ofgranting this request. Indeed, it is routine for courts to grant a complete stay of all proceedingsuntil after the fairness hearing—relief that goes far beyond what BP is seeking here. See, e.g.,Marino v. Pioneer Edsel Sales, Inc., 349 F.3d 746, 749 (4th Cir. 2003) (in light of a class actionsettlement “all proceedings were stayed pending a fairness hearing.”); In re Chinese-Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2011 WL 2313866, at *1 (E.D. La.June 9, 2011) (“[T]he Court issued a written Preliminary Approval Order which included anumber of rulings and terms, including dates and terms for notice to be issued, a final fairnesshearing on October 27, 2011, and a stay order on related proceedings during the Rule 23approval process.”); Marcus v. Dept. of Revenue, 206 F.R.D. 509, 514 (D. Kan. 2002) (“Allfurther litigation of this proceeding is hereby stayed pending final determination of theacceptance of the settlement agreement at the fairness hearing.”).22 The fact that BP is seeking a far more modest stay means that the Court can continue tomove other aspects of this massive litigation along without compromising the ability of the PSC22 Pursuant to the All-Writs Act, 28 U.S.C. § 1651(a), a court considering whether to preliminarily approve asettlement has the far-reaching power to enjoin any overlapping or parallel actions to allow the court to effectivelyand expeditiously administer the proposed settlement agreement. See In re Diet Drugs Prods. Liab. Litig., 282 F.3d220, 236 (3d Cir. 2002) (“The threat to the federal court’s jurisdiction [over a preliminary settlement] posed byparallel state actions is particularly significant . . . .”); In re Napster, 2007 WL 2907892, at *2 (“Upon the Court’sentry of this Order, all further proceedings in this lawsuit (including, but not limited to, any existing discoveryobligations) shall be stayed pending Final Settlement Approval or termination of the Settlement Agreement,whichever occurs earlier, except for those matters necessary to obtain and/or effectuate the Final SettlementApproval.”); see also Carlough v. Amchem Prods., Inc., 10 F.3d 189, 203-04 (3d Cir. 1993) (district court’spreliminary injunction enjoining absent members of purported federal class in an asbestos related tort action fromprosecuting state claims was necessary in aid of its jurisdiction because prospect of settlement was imminent afteryears of pretrial negotiations in a complex matter). 50
  • 67. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 61 of 77and BP to settle the Economic Class claims.IV. REQUESTED PROCEDURES AND TIMETABLE As demonstrated above, preliminarily approving a class action settlement necessitatescompliance with various procedural requirements. MCL 4TH § 21.632. Accordingly, BP and thePSC jointly request that the Court now (1) make a preliminary determination that the Agreementis fair, reasonable, and adequate; (2) approve the notice program so that notice may issue; and (3)at BP’s request (without objection from the PSC) adjourn and stay the Limitation and Liabilitytrial pending a fairness hearing. To effectuate final approval of the settlement, the parties furtherask that the Court (4) set a date by which objections to the settlement are due; (5) set a date bywhich members of the class must opt out of the settlement class; (6) set a date for replysubmissions responding to any objections; and (7) set a date for a fairness hearing, at which timethe parties will request that the Court issue final approval of the settlement and enter a finaljudgment. The parties respectfully propose the following timetable, which is reflected in theattached proposed form of order: • Notice to be sent out by May 3, 2012 • Motion papers in support of settlement to be filed by August 13, 2012 • Objections to be filed by August 31, 2012 • Opt-Out period to be closed by October 1, 2012 • Reply submissions to be filed by October 22, 2012 • Fairness hearing to be set and commenced on or about November 8, 2012 CONCLUSION The Agreement that has been reached by the parties is fair, adequate, and reasonable. It 51
  • 68. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 62 of 77makes the plaintiff class entirely whole (and more), while sparing class members years oflitigation with no guarantee of a recovery rising to the generous levels provided for in theagreement. The PSC and BP respectfully request that their joint motion be granted, to enable thesettlement approval process, including class notice, to commence and advance towards a formalfairness hearing under Rule 23(e). 52
  • 69. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 63 of 77April 18, 2012 Respectfully submitted,__/s/ Stephen J. Herman_______________ ___/s/ James Parkerson Roy________________Stephen J. Herman, La. Bar No. 23129 James Parkerson Roy, La. Bar No. 11511HERMAN HERMAN KATZ & COTLAR DOMENGEAUX WRIGHT ROY & EDWARDSLLP LLC820 O’Keefe Avenue 556 Jefferson Street, Suite 500New Orleans, Louisiana 70113 Lafayette, Louisiana 70501Telephone: (504) 581-4892 Telephone: (337) 233-3033Fax No. (504) 569-6024 Fax No. (337) 233-2796Interim Class Counsel/Plaintiffs Liaison Interim Class Counsel/Plaintiffs Liaison CounselCounsel MDL 2179MDL 2179 PLAINTIFFS’ STEERING COMMITTEE ___________________________________________________Joseph F. Rice Conrad S.P. “Duke” WilliamsMOTLEY RICE LLC WILLIAMS LAW GROUP28 Bridgeside Blvd. 435 Corporate Drive, Suite 101Mount Pleasant, SC 29464 Maison Grand CaillouOffice: (843) 216-9159 Houma, LA 70360Telefax: (843) 216-9290 Office: (985) 876-7595 Telefax: (985) 876-7594Brian H. Barr Robin L. GreenwaldLEVIN, PAPANTONIO, THOMAS, WEITZ & LUXENBERG, PCMITCHELL, ECHSNER & PROCTOR, PA 700 Broadway316 South Baylen St., Suite 600 New York, NY 10003Pensacola, FL 32502-5996 Office: (212) 558-5802Office: (850) 435-7045 Telefax: (212) 344-5461Telefax: (850) 436-6187Jeffrey A. Breit Rhon E. JonesBREIT DRESCHER IMPREVENTO & BEASLEY, ALLEN, CROW, METHVIN,WALKER, P.C. PORTIS & MILES, P. C.999 Waterside Drive, Suite 1000 218 Commerce St., P.O. Box 4160Norfolk, VA 23510 Montgomery, AL 36104Office: (757) 670-3888 Office: (334) 269-2343Telefax: (757) 670-3895 Telefax: (334) 954-7555
  • 70. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 64 of 77Elizabeth J. Cabraser Matthew E. LundyLIEFF, CABRASER, HEIMANN & LUNDY, LUNDY, SOILEAU & SOUTH,BERNSTEIN, LLP LLP275 Battery Street, 29th Floor 501 Broad StreetSan Francisco, CA 94111-3339 Lake Charles, LA 70601Office: (415) 956-1000 Office: (337) 439-0707Telefax: (415) 956-1008 Telefax: (337) 439-1029Philip F. Cossich, Jr. Michael C. PalmintierCOSSICH, SUMICH, PARSIOLA & deGRAVELLES, PALMINTIER,TAYLOR HOLTHAUS & FRUGÉ8397 Highway 23, Suite 100 618 Main StreetBelle Chasse, LA 70037 Baton Rouge, LA 70801-1910Office: (504) 394-9000 Office: (225) 344-3735Telefax: (504) 394-9110 Telefax: (225) 344-0522Robert T. Cunningham Paul M. SterbcowCUNNINGHAM BOUNDS, LLC LEWIS, KULLMAN, STERBCOW &1601 Dauphin Street, P. O. Box 66705 ABRAMSONMobile, AL 36660 601 Poydras Street, Suite 2615Office: (251) 471-6191 New Orleans, LA 70130Telefax: (251) 479-1031 Office: (504) 588-1500 Telefax: (504) 588-1514Alphonso Michael “Mike” Espy Scott SummyMORGAN & MORGAN, P.A. BARON & BUDD, P.C.188 East Capitol Street, Suite 777 3102 Oak Lawn Avenue, Suite 1100Jackson, MS 39201 Dallas, TX 75219Office: (601) 949-3388 Office: (214) 521-3605Telefax: (601) 949-3399 Telefax: (214) 599-1172Calvin C. Fayard, Jr. Mikal C. Watts (PSC)FAYARD & HONEYCUTT WATTS GUERRA CRAFT, LLP519 Florida Avenue, SW Four Dominion Drive, Building 3, Suite 100Denham Springs, LA 70726 San Antonio, TX 78257Office: (225) 664-4193 Office: (210) 447-0500Telefax: (225) 664-6925 Telefax: (210) 447-0501Ervin A. GonzalezCOLSON HICKS EIDSON255 Alhambra Circle, PenthouseCoral Gables, FL 33134Office: (305) 476-7400Telefax: (305) 476-7444
  • 71. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 65 of 77 ___/s/ Richard C. Godfrey, P.C._________________James J. Neath Richard C. Godfrey, P.C.Mark HolsteinBP AMERICA INC. J. Andrew Langan, P.C.501 Westlake Park Boulevard Andrew B. Bloomer, P.C.Houston, TX 77079 Wendy L. BloomTelephone: (281) 366-2000 R. Chris HeckTelefax: (312) 862-2200 Christopher J. Esbrook KIRKLAND & ELLIS LLPDaniel A. Cantor 300 North LaSalle StreetAndrew T. Karron Chicago, IL 60654Ellen K. Reisman Telephone: (312) 862-2000ARNOLD & PORTER LLP Telefax: (312) 862-2200555 Twelfth Street, NWWashington, DC 20004 Jeffrey Bossert ClarkTelephone: (202) 942-5000 KIRKLAND & ELLIS LLPTelefax: (202) 942-5999 655 Fifteenth Street, N.W. Washington, D.C. 20005Jeffrey Lennard Telephone: (202) 879-5000Keith Moskowitz Telefax: (202) 879-5200SNR DENTON233 South Wacker Drive /s/ Don K. HaycraftSuite 7800 Don K. Haycraft (Bar #14361)Chicago, IL 60606 R. Keith Jarrett (Bar #16984)Telephone: (312) 876-8000 LISKOW & LEWISTelefax: (312) 876-7934 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139OF COUNSEL Telephone: (504) 581-7979 Telefax: (504) 556-4108 Robert C. “Mike” Brock COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 662-5985 Telefax: (202) 662-6291 ATTORNEYS FOR BP EXPLORATION & PRODUCTION INC. AND BP AMERICA PRODUCTION COMPANY
  • 72. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 66 of 77 APPENDIX A: PROPOSED CLASS DEFINITION*Economic and Property Damages Settlement Class shall mean the NATURAL PERSONS andENTITIES defined in this Section 1, subject to the EXCLUSIONS in Section 2 below. If aperson or entity is included within the geographical descriptions in Section 1.1 or Section 1.2,and their claims meet the descriptions of one or more of the Damage Categories described inSection 1.3, that person or entity is a member of the Economic and Property Damages SettlementClass, unless the person or entity is excluded under Section 2: 1.1. Individuals. Unless otherwise specified, all Natural Persons residing in the United States who, at any time between April 20, 2010 and April 16, 2012, lived in, worked in, were offered and accepted work in, owned or leased real or personal property located within, or owned or leased or worked on a vessel harbored or HOME PORTED in the States of Louisiana, Mississippi, or Alabama, the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas, or the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington in the State of Florida, including all adjacent Gulf waters, bays, estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, Alabama, or those described counties of Texas or Florida (the “GULF COAST AREAS”) (Exhibit 22), or the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas, as specifically shown and described in Exhibit 23 (“SPECIFIED GULF WATERS”), or worked on a vessel in Specified Gulf Waters after April 20, 2009. With respect to SEAFOOD CREW Claims, persons must have worked on a vessel that landed SEAFOOD in the Gulf Coast Areas after April 20, 2009. and 1.2. Entities. All Entities doing business or operating in the Gulf Coast Areas or Specified Gulf Waters that: 1.2.1. at any time from April 20, 2010 to April 16, 2012, owned, operated, or leased a physical facility in the Gulf Coast Areas or Specified Gulf Waters and (A) sold products in the Gulf Coast Areas or Specified Gulf Waters (1) directly to CONSUMERS or END USERS of those products or (2) to another Entity that sold those products directly to Consumers or End Users of those products, or (B) regularly purchased Seafood harvested from Specified Gulf Waters in order to produce goods for resale;* The Class Definition includes certain capitalized defined terms, the meaning of which is given in the DeepwaterHorizon Economic and Property Damages Settlement Agreement. Exhibits referenced in the above definition areincluded as exhibits to the Settlement Agreement. Exhibits 22 and 23 are also reproduced as Appendixes B and C,respectively, to this memorandum. A-1
  • 73. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 67 of 77 1.2.2. are service businesses with one or more full-time employees (including owner-operators) who performed their full-time services while physically present in the Gulf Coast Areas or Specified Gulf Waters at any time from April 20, 2010 to April 16, 2012; or 1.2.3. owned, operated, or leased a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; or 1.2.4. owned or leased REAL PROPERTY in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012; 1.3. Individuals and Entities who meet the geographical descriptions of Sections 1.1 or 1.2 above are included in the Economic Class only if their Claims meet the descriptions of one or more of the Damage Categories described below. 1.3.1. The following are summaries of the Damage Categories, which are fully described in the attached Exhibits 1A-15: 1.3.1.1. Seafood Compensation Program. Damages suffered by a COMMERCIAL FISHERMAN, Seafood Crew, or SEAFOOD VESSEL OWNER that owned, operated, leased or worked on a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) Landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; and damages suffered by, inter alia, OYSTER LEASEHOLDERS and IFQ Owners. (Exhibit 10). Claims for Economic Damage arising from the fishing, processing, selling, catching, or harvesting of menhaden (or “pogy”) fish are excluded from the Seafood Compensation Program and other Economic Damage Claims under this Agreement. 1.3.1.2. Economic Damage Category. Loss of income, earnings or profits suffered by Natural Persons or Entities as a result of the DEEPWATER HORIZON INCIDENT, subject to certain Exclusions. (Exhibits 16-19) 1.3.1.3. Subsistence Damage Category. Damages suffered by Natural Persons who fish or hunt to harvest, catch, barter, consume or trade Gulf of Mexico natural resources, including Seafood and GAME, in a traditional or customary manner, to sustain their basic or family dietary, economic security, shelter, tool or clothing needs, and who relied upon subsistence resources that were diminished or restricted in the geographic region used by the CLAIMANT due to or resulting from the Deepwater Horizon Incident. (Exhibit 9) 1.3.1.4. VoO Charter Payment Category. Damages suffered by Natural Persons or Entities who registered to participate in BP’s Vessels of Opportunity (“VoO”) program and executed a VoO MASTER VESSEL A-2
  • 74. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 68 of 77 CHARTER AGREEMENT with BP, Lawson, USMS, USES, DRC, or any other BP subcontractor as CHARTERER, and completed the initial VoO training program. 1.3.1.5. Vessel Physical Damage Category. Physical damage that was sustained by an eligible Claimant’s eligible vessel due to or resulting from the Deepwater Horizon Incident or the Deepwater Horizon Incident response cleanup operations, including the Vessels of Opportunity Program. (Exhibit 14) 1.3.1.6. Coastal Real Property Damage Category. Damages alleged by a Coastal Real Property Claimant that meet the requirements set forth in the Coastal Real Property Claim Framework. 1.3.1.7. Wetlands Real Property Damage Category. Damages alleged by a Wetlands Real Property Damage Claimant that meet the requirements set forth in the Wetlands Real Property Claim Framework. 1.3.1.8. Real Property Sales Damage Category. Damages alleged by a Real Property Sales Claimant that meet the requirements set forth in the Real Property Sales Framework. 1.3.1.9. Individuals/Employees in Otherwise Excluded Oil and Gas, Gaming, Banking, Insurance, Funds, Defense Contractors, Developers Industries, and any Entity selling or marketing BP-branded fuel (including jobbers and branded dealers): As more fully described in Exhibit 16 and Section 5.10 below, individuals and employees of businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims for Economic Damage outside of these excluded industries, and may pursue all other recovery permitted under other aspects of the Settlement. 1.3.1.10. Individuals/Employees in Support Services to Oil and Gas Industry: As more fully described in Exhibit 16 and Section 5.10 below, individuals and employees of businesses/employers in the SUPPORT SERVICES TO OIL AND GAS INDUSTRY, described in Exhibit 16 may submit Claims for Economic Damage incurred as a result of their employment in the Support Services to Oil and Gas Industry for (i) non- moratoria business interruption from Support Services to Oil and Gas Industry activities and (ii) non oil and gas industry Economic Damages due to or resulting from the Deepwater Horizon Incident, except for moratoria claims. As is also more fully described in Exhibit 16, these individuals and employees may also pursue Claims for other Economic Damage outside the Support Service to Oil and Gas Industry, and may pursue all other recovery permitted under other aspects of the Settlement. A-3
  • 75. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 69 of 77 1.3.1.11. Businesses/Employers in Otherwise Excluded Gaming, Banking, Insurance, Funds, Defense Contractors and Developers Industries: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands Real Property Damage, but are not entitled to recover under any other aspect of the Settlement. 1.3.1.12. Businesses/Employers in Support Services to Oil and Gas Industry: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in the “Support Services to Oil and Gas Industry,” described in Exhibit 16, may submit Claims for (i) non- moratoria business interruption from Support Services to Oil and Gas Industry activities and (ii) non-oil and gas industry Economic Damages arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, except for moratoria claims, and may pursue all other recovery permitted under other aspects of the Settlement.Exclusions from the Economic and Property Damages Settlement Class Definition 2.1. Notwithstanding the above, the following individuals and Entities, including any and all of their past and present predecessors, successors, personal representatives, agents, trustees, insurers, reinsurers, indemnitors, subrogees, assigns, and any other Natural Person, legal or juridical person or Entity entitled to assert any Claim on behalf of or in respect of any such individual or Entity in their respective capacities as such are excluded from the Economic Class. 2.2. Excluded Individuals or Entities: 2.2.1. Any Economic Class Member who or which timely elects to be excluded from the Economic Class under the deadlines and procedures to be set forth in the ECONOMIC AND PROPERTY DAMAGES SETTLEMENT CLASS ACTION SETTLEMENT NOTICE. 2.2.2. Defendants in MDL 2179, and individuals who are current employees, or who were employees during the CLASS PERIOD, of BP or other defendants in MDL 2179. 2.2.3. The Court, including any sitting judges on the United States District Court for the Eastern District of Louisiana, their law clerks serving during the pendency of the MDL, and members of any such judge’s or current law clerk’s immediate family. 2.2.4. The following exclusions are based on the substantive nature of the business, not the legal or juridical form of that business. Any of the following types of Entity, or any Natural Person to the extent he or she A-4
  • 76. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 70 of 77 alleges Economic Damage based on their employment by such an Entity, during the Class Period are excluded: 2.2.4.1. Financial Institutions as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, commercial banks; savings institutions; credit card issuers; credit insurers; factors or other sales finance entities; financial or investment advisers or portfolio managers; fund managers; investment banking entities; lending institutions; real estate mortgage or lending entities; brokers or dealers of securities, commodities, commodity contracts or loans; securities or commodities exchanges; entities serving as custodians, fiduciaries or trustees of securities or other financial assets; or entities engaged in other financial transaction intermediation, processing, reserve or clearinghouse activities, provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.1 unless they are subject to a different exclusion: stand-alone ATMs, credit unions, pawn shops, businesses engaged predominantly in making payday loans or paycheck advances and businesses that sell goods and services and offer financing on these purchases to their customers. 2.2.4.2. Funds, Financial Trusts, and Other Financial Vehicles, as identified in the NAICS codes listed on Exhibit 18, after giving effect to the bracketed exceptions contained in NAICS Codes 525920 and 523991, which include by way of example, public- open end investment funds; investment funds; real estate investment trusts; REMICS; mutual funds; money market funds; derivatives; health and welfare funds; insurance funds; pension funds; financial trusts; and special purpose financial vehicles provided, that successions, estates, testamentary trusts, trusts of Natural Persons, bankruptcy estates, limited liability companies, corporations, Sub-Chapter “S” corporations, partnerships, limited partnerships, joint ventures, and any other businesses or juridical Entities, shall not be excluded pursuant to this Section 2.2.4.2 solely by reason of their form of legal or juridical structure or organization, except to the extent they are excluded pursuant to another exclusion in Section 2.2 of this Agreement. 2.2.4.3. Gaming, as identified in the NAICS codes listed on Exhibit 18, which includes, by way of example, casinos; casino hotels; off-track betting parlors; racetracks and other gambling establishments provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.3 unless they are subject to a different exclusion: (a) bingo parlors, and (b) video gaming at bars, bingo parlors, hotels, off-track betting parlors, racetracks, restaurants and truck stops. A-5
  • 77. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 71 of 77 2.2.4.4. Insurance Entities, as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, insurance carriers issuing disability, health, life, medical, property and casualty, title or other insurance; reinsurers; insurance agencies and brokerages; underwriting agencies or organizations; claims adjusters and processors; third-party insurance or fund administrators; or other insurance-related businesses. 2.2.4.5. Oil and Gas Industry, as identified in the NAICS codes listed on Exhibit 17, which includes by way of example, firms engaged in: extracting crude petroleum, natural gas or other hydrocarbons; drilling wells; preparing, maintaining or constructing petroleum or natural gas well-sites or other mineral extraction sites; mining; maintaining or constructing petroleum or natural gas pipeline or distribution facilities; pipeline distribution of crude petroleum, refined petroleum, oil or natural gas; petroleum or natural gas refining or other mineral refining and/or manufacturing; manufacturing petroleum lubricating oil and grease, petrochemical products, or other petroleum and coal products or chemical products derived from extracted minerals; merchant wholesaling of construction and mining (except oil well) machinery and equipment; wholesale distribution of oil well machinery, equipment and supplies; wholesale distribution of petroleum, petroleum products, other extracted minerals, chemical products produced from extracted or refined minerals, petroleum bulk stations and terminals, petroleum and petroleum products merchant wholesalers. 2.2.4.6. Defense Contractors/Subcontractors, including firms which derive in excess of at least 50% of their annual revenue from contracts with the United States Department of Defense and Individuals whose employer qualifies as a Defense Contractor. 2.2.4.7. Real Estate Developers, including any Natural Person or Entity that develops commercial, residential or industrial properties. This includes, but is not limited to, any Entity developing an entire subdivision (as defined by the law of the state in which the parcel is located) of Real Property, including condominiums with multiple residential units and/or a residential subdivision with contiguous home sites and homes, provided, however, that Real Estate Developers shall be eligible to assert Coastal Real Property Claims under Section 5.7 and Real Property Sales Damage Claims under Section 5.9 2.2.4.8. Any Entity selling or marketing BP-branded fuel, including jobbers and branded dealers. A-6
  • 78. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 72 of 77 2.2.5. GOVERNMENTAL ORGANIZATIONS, as defined in this Agreement, provided that Native American tribal Entities may consent to participate in the Settlement as to otherwise eligible Claims. 2.2.6. Any Natural Person or Entity who or that made a claim to the GCCF, was paid and executed a GCCF RELEASE AND COVENANT NOT TO SUE, provided, however, that the execution of a GCCF Release and Covenant Not to Sue shall not prevent a Natural Person or Entity from making a VoO Charter Payment Claim or a Vessel Damage Claim, nor shall a release covering only bodily injury prevent a Natural Person from making Claims under this Agreement. A-7
  • 79. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 73 of 77 Appendix B (Settlement Agreement Ex. 22) B-1
  • 80. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 74 of 77 Appendix C (Settlement Agreement Ex. 23) C-1
  • 81. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 75 of 77 C-2
  • 82. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 76 of 77 C-3
  • 83. Case 2:10-md-02179-CJB-SS Document 6266-1 Filed 04/18/12 Page 77 of 77 CERTIFICATE OF SERVICE I hereby certify that the above and foregoing pleading has been served on All Counsel byelectronically uploading the same to Lexis Nexis File & Serve in accordance with Pretrial OrderNo. 12, and that the foregoing was electronically filed with the Clerk of Court of the UnitedStates District Court for the Eastern District of Louisiana by using the CM/ECF System, whichwill send a notice of electronic filing in accordance with the procedures established in MDL2179, on this 18th day of April 2012. /s/ Don K. Haycraft Don K. Haycraft
  • 84. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 1 of 206 Exhibit 1
  • 85. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 2 of 206 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANAIn Re: Oil Spill by the Oil Rig “Deepwater * MDL NO. 2179 Horizon” in the Gulf of Mexico, on April * 20, 2010 * SECTION J * * * HONORABLE CARL J. * BARBIER * * MAGISTRATE JUDGE * SHUSHAN *Bon Secour Fisheries, Inc., et al., individually *and on behalf of themselves and all others * Civil Action No. 12-970similarly situated, * * SECTION: J Plaintiffs, * *v. * HONORABLE CARL J. BARBIER *BP Exploration & Production Inc.; * MAGISTRATE JUDGE SHUSHANBP America Production Company; *BP p.l.c., * * Defendants. * * * DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLANI, CAMERON R. AZARI, ESQ., hereby declare and state as follows: 1. My name is Cameron R. Azari, Esq. I am over the age of twenty-one and I havepersonal knowledge of the matters set forth herein, and I believe them to be true and correct. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 1
  • 86. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 3 of 206 2. I am a nationally recognized expert in the field of legal notice and I have served as amedia expert in dozens of federal and state cases involving class action notice plans. 3. I am the Director of Legal Notice for Hilsoft Notifications, a firm that specializes indesigning, developing, analyzing and implementing large-scale, un-biased, legal notificationplans. Hilsoft has been involved with some of the most complex and significant notices andnotice programs in recent history. 4. With experience in more than 200 cases, notices prepared by Hilsoft Notificationshave appeared in 53 languages with distribution in almost every country and territory in theworld. Judges, including in published decisions, have recognized and approved numerous noticeplans developed by Hilsoft Notifications, which decisions have always withstood collateralreviews by other courts and appellate challenges. EXPERIENCE RELEVANT TO THIS CASE 5. Hilsoft Notifications has served as notice expert and has been recognized andappointed by courts to design and provide notice in many large and complex cases, including:Schulte v. Fifth Third Bank (overdraft litigation settlement with direct mail to millions of classmembers and publication in relevant local newspapers, 2011) No. 1:09-cv-6655 (N.D. Ill.); In reResidential Schools Class Action Litigation, Canada (notice program for the landmark settlementbetween the Canadian government and Aboriginal former students; Phase IV notice program iscurrently being implemented, 2011/2012); In re Department of Veterans Affairs (VA) Data TheftLitigation (notices appeared across the country in newspapers, consumer magazines andspecialty publications with a total circulation exceeding 76 million, 2009), MDL 1796 (D. D.C); DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 2
  • 87. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 4 of 206and Vereen v. Lowe’s Home Centers (massive combined individual and media notice effortrelated to defective drywall, 2011) SU10-CV-2267B (Ga. Super. Ct.). 6. We have been recognized by courts for our testimony as to which method ofnotification is appropriate for a given case, and have provided testimony on numerous occasionson whether a certain method of notice represents the best notice practicable under thecircumstances. For example: a) In Schulte v. Fifth Third Bank, No. 1:09-cv-6655 (N.D. Ill.), Judge Robert M. Dow, Jr. stated on July 29, 2011: The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members. b) In Williams v. Hammerman & Gainer Inc., No. 11-C-3187-B (27th Jud. D. Ct. La.), Judge Ellis J. Daigle stated on June 30, 2011: Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings—including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court’s order of 30th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members’ right to be represented by private counsel, at their own cost, and Settlement Class members’ right to appear in Court to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 3
  • 88. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 5 of 206 members of the Settlement Class. c) In In re: Department of Veterans Affairs (VA) Data Theft Litigation, MDL No. 1796 (D. D.C.), Judge James Robertson stated on September 23, 2009: The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all person entitled to receive notice. d) In In re: Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, MDL 09-2046 (S.D. Tex.), Judge Lee Rosenthal stated on March 2, 2012: The notice that has been given clearly complies with Rule 23(e)(1)’s reasonableness requirement… Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, ¶ 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice “were written in easy-to-understand plain English.” In re Black Farmers Discrimination Litig., — F. Supp. 2d —, 2011 WL 5117058, at *23 (D.D.C. 2011); accord AGGREGATE LITIGATION § 3.04(c).15 The notice provided “satisf[ies] the broad reasonableness standards imposed by due process” and Rule 23. Katrina Canal Breaches, 628 F.3d at 197 (internal quotation marks omitted). e) In Dolen v. ABN AMRO Bank N.V., No. 01-L-454, 01-L-493, (3rd Jud. Cir. Ill.), Judge Barbara Crowder stated on March 23, 2009: The Court finds that the Notice Plan is the best notice practicable under the circumstances and provides the Eligible Members of the Settlement Class sufficient information to make informed and meaningful decisions regarding their options in this Litigation and the effect of the Settlement on their rights. The Notice Plan further satisfies the requirements of due process and 735 ILCS 5/2-803. That Notice Plan is approved and accepted. This Court further finds that the Notice of Settlement and Claim Form comply with 735 ILCS 5/2-803 and are appropriate as part of the Notice Plan and the Settlement, and thus they are hereby DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 4
  • 89. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 6 of 206 approved and adopted. This Court further finds that no other notice other than that identified in the Notice Plan is reasonably necessary in this Litigation. 7. Numerous other court opinions and comments as to our testimony, and opinions onthe adequacy of our notice efforts, are included in Hilsoft Notifications’ curriculum vitaeattached as Exhibit 1. 8. In forming my expert opinions, I and my staff draw from our in-depth class actioncase experience, as well as our educational and related work experiences. I am an active memberof the Oregon State Bar, receiving my Bachelor of Science from Willamette University and myJuris Doctor from Northwestern School of Law at Lewis and Clark College. I have served as theDirector of Legal Notice for Hilsoft Notifications since 2008 and have overseen the detailedplanning of virtually all of our court-approved notice programs since that time. Prior toassuming my current role with Hilsoft Notifications, I served in a similar role as Director of EpiqLegal Noticing (previously called Huntington Legal Advertising). Overall, I have twelve yearsexperience in the design and implementation of legal notification and claims administrationprograms, having been personally involved in well over one hundred successful notice programs.I have been directly and personally responsible for designing all of the notice planning here,including analysis of the individual notice options and the media audience data and determiningthe most effective mixture of media required to reach the greatest practicable number of Classmembers. 9. This affidavit will describe the Economic and Property Damages Settlement NoticePlan (“E&PD Notice Plan” or “Notice Plan”) and notices (the “Notice” or “Notices”) designedby Hilsoft Notifications and proposed here for the Economic and Property Damages Settlement(“E&PD Settlement”) with BP Exploration & Production Inc. and BP America Production DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 5
  • 90. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 7 of 206Company Inc. ("BP") in In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico on April 20, 2010, MDL No. 2179 Litigation, including how the Notice Plan wasdeveloped and why it will be effective. The Notice Plan and its attachments are attached heretoas Exhibit 2 to this affidavit. We developed the Notice Plan and Notices based on our extensiveprior experience and research into the notice issues in this case. We have analyzed the mosteffective method of notice for this Class. NOTICE PLANNING METHODOLOGY 10. Considerable efforts have been undertaken to compile names and addresses of allknown or likely Settlement Class Members. As described in the Notice Plan, the final mailinglist will include all records in the Gulf Coast Claims Facility database that do not relate solely toa medical claim, people and entities who filed a Short Form Joinder in MDL 2179 and knownVessels of Opportunity lists, among others. Additionally, public records were searched toidentify current postal addresses for property owners who are likely eligible to submit coastalreal property, wetlands real property and real property sales claims. 11. Rule 23 directs that the best notice practicable under the circumstances mustinclude “individual notice to all members who can be identified through reasonable effort.”1 Theproposed notice effort satisfies this direction. If a postal address is available or can beascertained for a likely Class Member, notice will be sent by first class mail. If there is an emailaddress available, notice will also be sent by electronic means. Address updating (both prior tomailing and on undeliverable pieces) and re-mailing protocols will meet or exceed those used inother class action settlements.1 FRCP 23(c)(2)(B). DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 6
  • 91. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 8 of 206 12. Separate from the compilation of the individual notice mailing lists, data sourcesand tools that are commonly employed by experts in this field were used to analyze the reach andfrequency2 of the media portion of this Notice Program. These include GfK MediamarkResearch & Intelligence, LLC (“MRI”) data,3 which provides statistically significant readershipand product usage data, and Audit Bureau Circulation (“ABC”)4 statements, which certify howmany readers buy or obtain copies of publications. Broadcast media planning data was providedby Neilsen Media Research5 and Arbitron Inc6. Online media planning data was provided bycomScore, Inc.7 These tools, along with demographic breakdowns indicating how many peopleuse each media vehicle, as well as computer software that take the underlying data and factor outthe duplication among audiences of various media vehicles, allow us to determine the net2 Reach is defined as the percentage of a class exposed to a notice, net of any duplication among people who mayhave been exposed more than once. Notice “exposure” is defined as the opportunity to read a notice. The average“frequency” of notice exposure is the average number of times that those reached by a notice would be exposed to anotice.3 GfK Mediamark Research & Intelligence, LLC (“MRI”) is a leading source of publication readership and productusage data for the communications industry. MRI offers comprehensive demographic, lifestyle, product usage andexposure to all forms of advertising media collected from a single sample. As the leading U.S. supplier ofmultimedia audience research, MRI provides information to magazines, televisions, radio, Internet, and other media,leading national advertisers, and over 450 advertising agencies—including 90 of the top 100 in the United States.MRI’s national syndicated data is widely used by companies as the basis for the majority of the media andmarketing plans that are written for advertised brands in the U.S.4 Established in 1914, ABC is a non-profit cooperative formed by media, advertisers, and advertising agencies toaudit the paid circulation statements of magazines and newspapers. ABC is the leading third party auditingorganization in the U.S. It is the industry’s leading, neutral source for documentation on the actual distribution ofnewspapers printed and bought by readers. Widely accepted throughout the industry, it certifies over 3,000publications, categorized by metro areas, region, and other geographical divisions. Its publication audits areconducted in accordance with rules established by its Board of Directors. These rules govern not only how auditsare conducted, but also how publishers report their circulation figures. ABC’s Board of Directors is comprised ofrepresentatives from the publishing and advertising communities.5 Nielsen ratings are the audience measurement systems developed by the Nielsen Company, in an effort todetermine the audience size and composition of television programming in the United States. The Nielsen methodhas since become the primary source of audience measurement information in the television industry around theworld.6 Arbitron Inc. is an international media and marketing research firm serving the media—radio, television, cable andout-of-home; the mobile industry as well as advertising agencies and advertisers around the world.7 comScore, Inc.is a global leader in measuring the digital world and a preferred source of digital marketingintelligence. In an independent survey of 800 of the most influential publishers, advertising agencies and advertisersconducted by William Blair & Company in January 2009, comScore was rated the “most preferred online audiencemeasurement service” by 50% of respondents, a full 25 points ahead of its nearest competitor. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 7
  • 92. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 9 of 206(unduplicated) reach of a particular media schedule. We combine the results of this analysis tohelp determine notice plan sufficiency and effectiveness. 13. Tools and data trusted by the communications industry and courts. Virtually allof the nation’s largest advertising agency media departments utilize, scrutinize, and rely uponsuch independent, time-tested data and tools, including net reach and de-duplication analysismethodologies, to guide the billions of dollars of advertising placements that we see today,providing assurance that these figures are not overstated. These analyses and similar planningtools have become standard analytical tools for evaluations of notice programs, and have beenregularly accepted by courts. 14. In fact, advertising and media planning firms around the world have long relied onaudience data and techniques: ABC data has been relied on since 1914; 90-100% of mediadirectors use reach and frequency planning;8 all of the leading advertising and communicationstextbooks cite the need to use reach and frequency planning;9 and a leading treatise says it mustbe used for reach and frequency planning: “In order to obtain this essential information, we mustuse the statistics known as reach and frequency.”10 Ninety of the top one hundred media firmsuse MRI data, which has a 95% confidence interval, and at least 3,000 media firms in 25different countries use media planning software for reach and frequency planning.118 See generally Peter B. Turk, Effective Frequency Report: Its Use And Evaluation By Major Agency MediaDepartment Executives, 28 J. ADVERTISING RES. 56 (1988); Peggy J. Kreshel et al., How Leading AdvertisingAgencies Perceive Effective Reach and Frequency, 14 J.ADVERTISING 32 (1985).9 Textbook sources that have identified the need for reach and frequency for years include: JACK S. SISSORS & JIMSURMANEK, ADVERTISING MEDIA PLANNING, 57-72 (2d ed. 1982); KENT M. LANCASTER & HELEN E. KATZ,STRATEGIC MEDIA PLANNING 120-156 (1989); DONALD W. JUGENHEIMER & PETER B. TURK, ADVERTISING MEDIA123-126 (1980); JACK Z. SISSORS & LINCOLN BUMBA, ADVERTISING MEDIA PLANNING 93-122 (4th ed. 1993); JIMSURMANEK, INTRODUCTION TO ADVERTISING MEDIA: RESEARCH, PLANNING, AND BUYING 106-187 (1993).10 AMERICAN ADVERTISING AGENCY ASSOCIATION, GUIDE TO MEDIA RESEARCH 25 (1987), revised 1993.11 For example, Telmar is the worlds leading supplier of media planning software and support services. Over 3,000users in 25 countries, including 95% of the worlds top agencies, use Telmar systems for media and marketingplanning tools including reach and frequency planning functions. Established in 1968, Telmar was the firstcompany to provide media planning systems on a syndicated basis. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 8
  • 93. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 10 of 206 ECONOMIC AND PROPERTY DAMAGES NOTICE PLAN SUMMARY 15. The E&PD Settlement Agreement defines the “Class” as: A. Individuals. Unless otherwise specified, all Natural Persons residing in the United States who, at any time between April 20, 2010 and April 16, 2012, lived in, worked in, were offered and accepted work in, owned or leased real or personal property located within, or owned or leased or worked on a vessel harbored or HOME PORTED in the States of Louisiana, Mississippi, or Alabama, the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas, or the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington in the State of Florida, including all adjacent Gulf waters, bays, estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, Alabama, or those described counties of Texas or Florida (the “GULF COAST AREAS”) (Exhibit 22), or the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas, as specifically shown and described in Exhibit 23 (“SPECIFIED GULF WATERS”), or worked on a vessel in Specified Gulf Waters after April 20, 2009. With respect to SEAFOOD CREW Claims, persons must have worked on a vessel that landed SEAFOOD in the Gulf Coast Areas after April 20, 2009. and B. Entities. All Entities doing business or operating in the Gulf Coast Areas or Specified Gulf Waters that: a) at any time from April 20, 2010 to April 16, 2012, owned, operated, or leased a physical facility in the Gulf Coast Areas or Specified Gulf Waters and (A) sold products in the Gulf Coast Areas or Specified Gulf Waters (1) directly to CONSUMERS or END USERS of those products or (2) to another Entity that sold those products directly to Consumers or End Users of those products, or (B) regularly purchased Seafood harvested from Specified Gulf Waters in order to produce goods for resale; b) are service businesses with one or more full-time employees (including owner-operators) who performed their full- time services while physically present in the Gulf Coast Areas or Specified Gulf Waters at any time from April 20, 2010 to April 16, 2012; or DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 9
  • 94. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 11 of 206 c) owned, operated, or leased a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; or d) owned or leased REAL PROPERTY in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012; C. Individuals and Entities who meet the geographical descriptions of Sections A or B above are included in the Economic Class only if their Claims meet the descriptions of one or more of the Damage Categories described in the Settlement Agreement. 16. To guide the selection of measured media in reaching unknown E&PD SettlementClass Members, the Notice Plan has a primary target audience of: all adults 18 years and older,currently living in the Gulf Coast Areas. To further extend the reach of the Plan to unknownClass Members who do not currently reside in the Gulf Coast Areas, the Plan includes a broadnational effort to reach adults 18 years and older across the United States. 17. To frame the local portion of the Notice Plan, local media was analyzed for eachDesignated Marketing Area (“DMA”)12 in which the largest population center within eachrespective DMA included a portion of the defined Gulf Coast Areas. Twenty-six (26) individualDMAs encompassing the Gulf Coast Areas have been used to establish the geographic scope forthe local portion of the media plan. They are as follows: Houston Mobile-Pensacola-Ft. Walton Ft. Meyers-Naples Beaumont- Port Arthur Montgomery-Selma Panama City New Orleans Dothan Hattiesburg-Laurel Lake Charles Miami-Ft. Lauderdale Alexandria, LA Lafayette, LA Tallahassee-Thomasville Monroe-El Dorado Baton Rouge Gainesville Shreveport12 DMA or “Designated Marketing Area” is a term used by Nielsen Media Research to identify an exclusivegeographic area of counties or parishes in which the home market television stations hold a dominance of total hoursviewed. There are 210 DMAs in the U.S. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 10
  • 95. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 12 of 206 Biloxi-Gulfport Tampa-St. Petersburg-Sarasota Jackson, MS Columbus-Tupelo-West Point Meridian Huntsville-Decatur (FL) Greenwood-Greenville Birmingham (Anniston and Tuscaloosa) 18. The E&PD Notice Plan includes Notice mailed to known potential ClassMembers, compiled from various lists provided by the settling parties and their experts. Framedby the 26 DMAs listed above, an extensive schedule of local newspaper, radio, television andInternet placements has been proposed to reach Class Members in the Gulf Coast Areas. Toreach Class Members across the United States, the schedule includes well-read consumermagazines, a national daily business newspaper, highly trafficked websites and Sunday localnewspapers (via newspaper supplements). Notice placements will also appear in non-measuredtrade, business and specialty publications, African-American, Vietnamese and Spanish languagepublications and Cajun radio programming. An informational release, television public serviceannouncements (“PSAs”), and case website will provide additional notice exposures. 19. The combined measurable effort will reach at least 95% of adults aged 18+ in the26 identified DMAs covering the Gulf Coast Areas an average of 8.8 times each and anestimated 83% of all U.S. adults an average of 3.8 times each. 20. In my experience, the projected reach and frequency of the Notice Plan media effortin the Gulf Coast Areas will surpass that of the vast majority of other court-approved noticeprograms, and has been designed to meet and exceed due process requirements. The reach andfrequency to all U.S. adults is also consistent with the most thorough and expansive class actionmedia notice efforts. 21. Hilsoft was also retained to design and implement a Notice Plan for thecontemporaneously filed Medical Benefits Settlement with BP. The two Notice Plans are DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 11
  • 96. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 13 of 206separate and distinct. For the purposes of this affidavit, the adequacy of the E&PD Notice Planand notices are discussed. A separate affidavit for the Medical Benefits Settlement has beensubmitted to the Court regarding the proposed Medical Benefits Notice Plan and Notices. 22. To prevent confusion over the two settlements, the proposed E&PD Notice Planhighlights that the Court is considering two separate settlements. Each Notice Plan includesunique individual mailing pieces, mailed separately in different colored envelopes. Printpublication notice consists of a single advertising unit with one Summary Publication Notice thataddresses the E&PD Settlement, and a separate Summary Publication Notice that addresses theMedical Benefits Settlement. Depending on the publication, the Summary Publication Noticeswill appear either side-by-side or stacked one above the other. Broadcast and Internet bannerefforts will provide the message that there is one settlement addressing economic and propertydamage claims, and a separate settlement addressing medical claims. ECONOMIC AND PROPERTY DAMAGES NOTICE PLAN 23. We designed the Notice Program to reach the greatest practicable number of E&PDSettlement Class Members, ensuring that the Class will receive multiple opportunities to beexposed to the Notice, to see, review, understand, and be reminded about it, and to respondappropriately if they so choose. The E&PD Notice Plan utilizes direct mail, paid published,broadcast, and Internet notice placements, as well as an informational release, a television PSAand a case website, as outlined below. The Notices have been designed to provide a clear,concise, plain language statement of Class Members’ legal rights and options. The Notices alertClass Members that the content may affect them. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 12
  • 97. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 14 of 206 Individual Mailed Notice 24. For each unique name and address of a known or likely Economic and PropertyDamages Settlement Class Member, a Notice Packet will be mailed via first class mail in a flatenvelope. The Notice Packet will include a Cover Letter and Detailed Notice, and is expected toinclude a color map folio. Potential Class Members will be directed to the settlement websiteand the toll-free number for detailed information on how to file a Claim, to access Claim Forms,and to seek assistance as needed with filing a claim. The Cover Letter and Detailed Notice areincluded in the attachments to the Notice Plan (Exhibit 2 to this affidavit). 25. The mailing list has been compiled from multiple lists of known or likelySettlement Class Members, including the following: • Short Form Joinders filed in MDL 2179; • The MDL 2179 Plaintiffs list; • Gulf Coast Claims Facility (“GCCF”) list of non-medical claimants and those who requested information about the GCCF process and provided contact information to the GCCF 13; • BP Claims Facility list of claimants who filed claims under the Oil Pollution Act of 1990, prior to the creation of the GCCF; • Vessels of Opportunity (“VoO”) lists and lists of VoO contractors who subcontracted out to other vessels; and • Lists of ascertainable Coastal Real Property owners, Wetlands Real Property owners and Real Property Sales owners who are presumptively members the Settlement Class and do not have to demonstrate a loss in order to be eligible to file a claim. 26. Prior to mailing, all addresses will be checked against the National Change ofAddress (“NCOA”) database maintained by the United States Postal Service (“USPS”).14 If a13 An Economic and Property Damage Settlement Notice packet will be mailed to all names and addresses in theGCCF database that do not unambiguously relate only to a medical claim. (Individuals who unambiguously relateonly to a medical claim will be mailed a Notice packet related to the separate Medical Benefits Settlement). For anyrecord in the GCCF database where there is any ambiguity as to the subject matter of that individual’s claim orrequest for further information, an Economic and Property Damage Notice Packet will be mailed. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 13
  • 98. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 15 of 206record is returned by NCOA as invalid, the administrator will update the address through third-party address search services and re-mail as appropriate. Notices returned as undeliverable willbe re-mailed to any new address available through postal service information, for example, to theaddress provided by the postal service on returned pieces for which the automatic forwardingorder has expired (but which is still during the period in which the postal service returns thepiece with the address indicated) or to better addresses that may be found after reasonable,additional third-party source lookups. Upon successfully locating better addresses, Notices willbe promptly re-mailed on an ongoing basis leading up to the Fairness Hearing. Additionally, theNotice Packet will be mailed to all persons who request one via the toll-free phone numbermaintained by the administrator. 27. For some known or likely Settlement Class Members, only a name and emailaddress is available and no other means exist of determining a physical address. Theseindividuals will be sent notice via email. For known or likely Settlement Class Members forwhom a physical address and an email address are available, notice will be sent via email inaddition to postal mail. The Email Notice will include substantially the same content as the textof the Publication Notice that is specific to the E&PD Settlement, and will contain a link to thesettlement website where the Detailed Notice and other detailed settlement information can beaccessed. The Email Notice will be provided using an embedded HTML text format. Thisformat will provide text that is easy to read without graphics, tables, images and other elementsthat would increase the likelihood that the message is blocked by Internet Service Providers(ISPs) and/or SPAM filters. Prior to transmitting the Email Notice, the Claims Administrator will14 The NCOA database contains records of all permanent change of address submissions received by the USPS forthe last four years. The USPS makes this data available to mailing firms and lists submitted to it are automaticallyupdated with any reported move based on a comparison with the person’s name and known address. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 14
  • 99. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 16 of 206notify major ISPs about the scheduled notification effort to get these messages “white-listed” fordelivery to recipient mailboxes. 28. Each Email Notice will be transmitted with a unique message identifier. If thereceiving email server cannot deliver the message, a “bounce code” should be returned to thesending server along with the unique message identifier. For any Email Notice for which abounce code is received indicating that the message was undeliverable, at least two additionalattempts will be made to deliver the Notice by email. 29. The Notice Packet will also be sent to known attorneys who represent likely ClassMembers other than Class Counsel. Gulf Coast Areas Local Newspaper Notice 30. The Notice Plan to the Gulf Coast Areas includes notice placements in daily andweekly newspapers covering each of the DMAs specified in paragraph 17 above. These 26DMAs ringing the Gulf Coast Areas will be covered by a total of 347 individual, localnewspapers. 31. The Publication Notice will run in an additional 17 newspapers in the Memphis(12), Atlanta (1) and Columbus (4) DMAs. These three DMAs lie predominately outside theClass geography, but do have small areas carved into the states of Mississippi (Memphis DMA)and Alabama (Atlanta and Columbus DMAs). It is these small areas that are covered by the 17additional newspapers. Including these insertions, the Publication Notice will run in a total of364 individual, local newspapers. 32. The Publication Notice will appear four times as a full-page ad unit in eachnewspaper—twice on Sunday and twice on a weekday in daily newspapers and over four DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 15
  • 100. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 17 of 206successive weeks in weekly newspapers for a total of 1,456 insertions. The selected newspapershave a combined circulation of over 8 million. In most instances, the Notice will appear a fifthor sixth time in each local newspaper via the two planned insertions in the nationwide newspapersupplements (Parade, USA Weekend and American Profile) discussed below. When this occurs,the Notice will appear on successive Sundays with the weekday insertion in-between the twolocal newspaper Sunday insertions. As placed, the Publication Notice ad unit will includeseparate Notices addressing both the E&PD Settlement, and the separate Medical BenefitsSettlement. Depending on the publication, the separate Notice text for each Settlement willappear either side-by-side or stacked one above the other. 33. The list of selected local newspapers is included as Attachment 3 to the E&PDNotice Plan (attached hereto as Exhibit 2). Gulf Coast Areas Local Television Notice 34. The E&PD Notice Plan provides for 30-second television spots that will appear onlocal broadcast and cable television in the same 26 DMAs as the daily and weekly newspaperplacements. 35. We conservatively estimate that 2,730 30-second spots will run over a four-weekperiod. Television placements will substantially occur over the initial three weeks with thefourth week reserved for any remaining inventory. Approximately 300 Gross Rating Points(“GRPs”)15 per market and over 67 million gross impressions will be generated. Ads are plannedto air on the top three local television stations per market and on the top six cable networks permarket. It is likely that additional spots will be negotiated at the time of the buy.15 A “GRP” is a gross rating point. One rating point equals one percent of a target population. Gross rating pointsmay include the same person reached more than once, so ratings can and often do exceed 100. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 16
  • 101. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 18 of 206 36. A variety of dayparts (morning, daytime, syndicated day/prime access/early fringe,early news, and prime/syndicated prime) will be used to increase reach among persons withdifferent viewing habits. 37. On its own, the Television Notice is estimated to reach an average of 83% of adultsaged 18+ in the Gulf Coast Areas with an estimated average frequency of 3.6 times each. Adultswill be exposed to the television Notice more than 67 million times during the period in whichthe television schedule airs. 38. The E&PD Notice Plan also includes a television PSA effort. The TelevisionNotice will be distributed to over 1,200 broadcast television stations throughout the United Stateswith a statement to station managers on why the announcement provides important legalinformation that may be relevant to their viewers. Gulf Coast Areas Local Radio 39. The E&PD Notice Plan provides for 30-second radio units, which will appear overa two-week schedule on selected mainstream radio stations in the same 26 DMAs as the dailyand weekly newspaper placements and television ads. 40. It is estimated that the mainstream local Radio Notice will generate approximately180 GRPs per market. We conservatively estimate that 8,712 total spots will be run, but it ispossible that additional spots will be negotiated at the time of the buy. On its own, themainstream Local Radio Notice is estimated to reach an average of 45% of adults aged 18+ inthe Gulf Coast Areas with an estimated average frequency of 4 times each. 41. Targeting rural communities, the radio notice will also appear on “StateNets,” aradio network specializing in reaching rural areas. Typical StateNets features are news, regional DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 17
  • 102. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 19 of 206weather and other informational programs. We estimate that over 14,000 total spots will run onapproximately 200 radio stations in the 26 DMAs over a three-week period. 42. Additionally, the Radio Notice will be placed on appropriate African-American andSpanish language stations. We estimate that 4,032 spots will run on African-American stations.A further 936 spots will run on Spanish language stations in areas of the Gulf Coast with highconcentrations of Spanish-speaking adults. The Spanish language Radio Notice will be recordedas a 60-second spot to accommodate the translation. 43. A radio buy will also be executed, targeted toward the Cajun population in SouthernLouisiana. Approximately 100 spots will run over a two-week period on local stations,including: KLRZ-FM, KLEB-AM, and KANE-AM. The spot will be voiced in a Cajun dialect. Gulf Coast Areas Foreign Language and Ethnic Publications 44. The Publication Notice will appear in publications covering ethnic and languagegroups identified as having a significant presence in the Gulf Coast Areas. The Notice willappear in 46 selected publications as a double-page spread or full-page ad unit three times inselected daily and weekly publications and one time in selected monthly publications coveringthe African-American, Vietnamese and Spanish language populations in the Gulf Coast Areas.The Notice will be translated into Vietnamese and Spanish where appropriate. The 46 selectedpublications have a combined estimated circulation of over 1.8 million. National Newspaper Inserts and Consumer Publications 45. The E&PD Notice Plan includes highly visible notice placements in thirteen leadingweekly and monthly publications. Notices will appear twice in the national newspapersupplements Parade and USA Weekend and once in American Profile which appear in over2,190 Sunday newspapers nationwide with distribution in large cities and small towns. The DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 18
  • 103. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 20 of 206newspapers appear in a wide geographic area, covering both large markets (A and B counties16with Parade and USA Weekend) and small cities and towns (C and D counties17 with AmericanProfile). Combined, Parade, USA Weekend and American Profile have an estimated circulationof more than 65 million. 46. Notices will appear twice in People, and once in Better Homes and Gardens, AARPBulletin, National Geographic, Cosmopolitan, Sports Illustrated, Southern Living, People enEspanol, Ebony and Essence, for a total of 11 insertions. 47. The selected publications include the top four in the country in terms of circulationand six of the top seven. The selected publications cover all demographic groups, specificallytargeting men’s and women’s publications, magazines aimed at older demographic segments,Spanish-speaking readers and publications specifically targeting African-American readers. 48. The selected Sunday newspaper inserts and consumer publications have a totalcirculation of over 114 million. Adults will be exposed to the Notice through these publicationsalone more than 521 million times during the notice period. This includes the same reader morethan once, because readers of one publication read other publications as well. Detailedinformation on each of the publications selected is included in the E&PD Notice Plan attached asExhibit 2.16 “County/parish size A” is defined as highly urbanized areas and belong to the 21 largest Metropolitan StatisticalAreas. The combined counties/parishes contain 40% of the United States households. “County/parish size B” isdefined as counties/parishes not defined as A counties/parishes that have more than 85,000 households. Thecombined counties/parishes contain 30% of United States households.17 “County/parish size C” is defined as counties/parishes not defined as A or B counties/parishes that have morethan 20,000 households or are in Consolidated Metropolitan Statistical Areas or Metropolitan Statistical Areas withmore than 20,000 households. “County/parish size D” is defined as all counties/parishes not classified as A, B or Ccounties/parishes. They are considered very rural. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 19
  • 104. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 21 of 206 Nationwide and Regional Business and Trade Publications 49. The Publication Notice will appear once or twice as a double-page spread orequivalent size ad unit in 34 selected publications targeted to the industries and activities mostlikely to have been directly affected by the Deepwater Horizon event. The selected publications,which include the national edition of the Wall Street Journal, have a combined circulation ofover 5 million. Internet Banner Notices 50. The E&PD Notice Plan provides for Banner Notices measuring 728 x 90 pixels and300 x 250 pixels, which will be placed on the following national online networks: Yahoo!, MSN,AOL, Weather.com, and 24/7 Real Media (a network that represents over 900 websites includingthose related to health, fitness, and news and information). 51. Where available, banners will also be placed on the websites of the selected tradeand specialty publications included in the print publication plan. 52. Combined, approximately 72 million adult impressions will be generated by thesebanner notices over a one month period. Clicking on the banner will link the reader to the casenotice website where they can obtain information about the Settlement and link directly to theseparate claims administration websites for each Settlement. 53. To complement print notices in the selected local newspapers, digital 728 x 90 pixeland 300 x 250 pixel banners will be placed on newspaper and local TV websites in the identifiedgeographies. Banner Notices will run across 31 days and deliver more than 42 millionimpressions across Louisiana, Mississippi, Alabama and portions of Texas and Florida. Eachbanner notice will include a clickable link to the case notice website. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 20
  • 105. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 22 of 206 Informational Release 54. To build additional reach and extend exposures, a party-neutral informationalrelease will be issued to approximately 4,200 print and broadcast and 5,500 online press outletsthroughout the United States. 55. An informational release serves a potentially valuable role, providing additionalnotice exposure beyond that which will be provided through paid media. There is no guaranteethat any news stories will result, but if they do, Class Members will have additional opportunitiesto learn that their rights are at stake in credible news media, adding to their understanding. Case Website 56. A neutral, informational, notice website with an easy to remember domain namewill serve as the notice page for both Settlements (the E&PD Settlement as well as the MedicalBenefits Settlement) where potential Settlement Class Members can obtain additionalinformation and documents including the Detailed and Summary Notices, SettlementAgreements, Preliminary Approval Orders and any other information that the parties agree toprovide or that the Court may require. The case notice website will also include information onhow potential Settlement Class Members can opt-out of the Settlement if they choose. 57. The case notice website address will be prominently displayed in all printed noticedocuments, and appear in all broadcast media including the informational release and TV PSAs.The Banner Notices will link directly to the website. 58. Visitors to the case notice website will be able to easily link to separate claimsadministration websites tailored to each Settlement via prominent buttons on the notice websitehomepage (one reading “Economic and Property Damages Claims” and the other reading DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 21
  • 106. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 23 of 206“Medical Claims”). Claim Forms and other information specific to each Settlement will beavailable at these claims administration sites. The case notice website will be color-coordinatedwith the claims administration websites and all pages that a visitor might see will have aconsistent look and functionality. To stress the separateness of the two Settlements, the claimsadministration sites will have different, but compatible, color schemes. The case notice websitewill reflect this by having the button links to each claims administration website in the specificcolor scheme of the website it is linking to. Both claims administration websites will include aprominent link to the other claims administration website for visitors interested in bothsettlements. 59. The claims administrator claims filing website will include an interactive map ofthe Gulf Coast where visitors will be able to input their property or residency address or select ageographic location to assist them in determining if the address falls into one or more of thedefined Settlement “Zones.” 60. All website content (including the Notices) will be available in English, Spanishand Vietnamese. Translated Notices may also be made available in Khmer, Lao andHaitian/Creole if requested. 61. To facilitate locating the case notice website, sponsored search listings will beacquired on the three most highly-visited Internet search engines: Google, Yahoo! and Bing.When search engine visitors search on common keyword combinations such as “DeepwaterHorizon settlement,” “Gulf property settlement,” or “BP oil spill settlement,” the sponsoredsearch listing will display either at the top of the page prior to the search results or in the upperright hand column. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 22
  • 107. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 24 of 206 Toll-free Telephone Number and Postal Mailing Address 62. A single toll-free number will be established for both Settlements. Callers will havethe option of selecting to listen in English, Spanish or Vietnamese. Initially, all callers will hearan introductory message that two separate settlements related to the Deepwater Horizon oil spill -one settlement addressing economic and property damages claims, and a separate settlementaddressing medical claims - have been reached. Callers will then have the option to continue toget information about one or the other settlement, request a Detailed Notice by mail and have theoption to choose to speak with a live operator. 63. A postal mailing address and email address for each claims administrator will beprovided, allowing Class Members to request additional information or ask questions via thesechannels. PERFORMANCE OF E&PD NOTICE PROGRAM Reach 64. Using standard advertising media industry methodologies to calculate the overlapinherent in exposures to the measured publication, broadcast and Internet activity, we arrive at acombined measurable reach of at least 95% of adults in the Gulf Coast Areas18 aged 18+ and anestimated 83% of all U.S. adults aged 18+. Reach will be enhanced further by the IndividualMailed Notice effort, notice placements in unmeasured trade, business and specialtypublications, African-American publications, Vietnamese and Spanish language publications,and the informational release, television PSAs and case website.18 While there is some variation in reach of the individual Notice Plan components from DMA to DMA, theestimated reach of the entire Notice Plan is at least 95% in each of the 26 DMAs that cover the Gulf Coast Areas. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 23
  • 108. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 25 of 206 65. Many courts have accepted and understood that a 75 or 80 percent reach is morethan adequate. In 2010, the Federal Judicial Center issued a Judges’ Class Action Notice andClaims Process Checklist and Plain Language Guide. This Guide states that, “the lynchpin in anobjective determination of the adequacy of a proposed notice effort is whether all the noticeefforts together will reach a high percentage of the class. It is reasonable to reach between 70–95%. A study of recent published decisions showed that the median reach calculation onapproved notice plans was 87%.”19 Here we were able to exceed that and develop a notice planthat will perform at the highest level of reportable reach. These statistics reinforce the fact thatthe E&PD Notice Plan is broad in scope and is designed to reach the greatest practicable numberof Class Members. Average Frequency of Exposure 66. The E&PD Notice Plan will provide Class Members with the best practicableopportunity to view and understand the Notice and their rights, including their rights to opt-outand object to the Settlement and their right to file a claim. A by-product of using media vehiclesnecessary to achieve a broad net reach is frequency of exposure to notice stemming frominherent audience overlap. 67. As a result, adults in the Gulf Coast Areas reached will, on average, have 8.8exposure opportunities20 to the proposed Notice Program and each U.S. adult aged 18+ reachedwill, on average, have 3.8 exposure opportunities to the proposed Notice Program. Thefrequency of exposure will be further enhanced by the Individual Mailed Notice effort, notice19 Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide(2010), p. 3.20 The estimated frequency of 8.8 times is a conservative average across all 26 DMAs covering the Gulf CoastAreas. Frequency by DMA is estimated to range from a low of 7.9 times to a high of 9.6 times or more. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 24
  • 109. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 26 of 206placements in unmeasured trade, business and specialty publications, African-Americanpublications, Vietnamese and Spanish language publications, informational release, televisionPSAs, and case website. PLAIN LANGUAGE NOTICE DESIGN 68. As fully explained in the E&PD Notice Plan, the Notices themselves are designedto be “noticed,” reviewed, and—by presenting the information in plain language— understoodby Class Members. The design of the Notices follows the principles embodied in the FederalJudicial Center’s illustrative “model” notices posted at www.fjc.gov. Many courts, and aspreviously cited, the FJC itself, have approved notices that we have written and designed in asimilar fashion. The Notices contain substantial, albeit easy-to-read, summaries of all of the keyinformation about Class Members’ rights and options. Consistent with our normal practice, allnotice documents will undergo a final edit prior to actual mailing and publication forgrammatical errors and accuracy. Along with our submission of the E&PD Notice Plan attachedas Exhibit 2, we have included all of the following proposed forms of notice: • The Cover Letter and Detailed Notice that will be mailed to all known potential Settlement Class Members and to those who call to request one as well as made available at the website. • The Email Notice that will be sent to known or likely Settlement Class Members for whom an email address is available. • The Publication Notice as it will appear in magazines and newspapers. • The Television Notice Script that will be produced as a 30-second unit and aired as a paid local spot and nationally via the TV PSA effort. • The Radio Notice Script that will be produced as a 30-second spot (60-second when translated into Spanish) and aired as a paid local spot. • The Internet Banner Notices that will be posted on a variety of web properties. • The neutral Informational Release that will be issued to news outlets throughout the U.S. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 25
  • 110. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 27 of 206 69. All Notices were designed to increase noticeability and comprehension. Becausemailing recipients are accustomed to receiving junk mail that they may be inclined to discard unread,the program calls for steps to bring the mailed Notice to the attention of Settlement Class Members.Once people “notice” the Notices, it is critical that they can understand them. As such, the Notices,as produced, are clearly worded with an emphasis on simple, plain language to encourage readershipand comprehension. 70. The mailed Notice Packet will be inserted into a flat 9x12 envelope and will carry aprominent callout on the front of the envelope (“DEEPWATER HORIZON – Economic andProperty Damages Settlement”) and a more descriptive callout on the back of the envelope (“Ifyou had economic loss or property damage because of the Deepwater Horizon oil spill, youcould get money from a class action settlement.”). To reduce confusion for people that may bemembers of the E&PD Settlement Class and the Medical Benefits Settlement Class, the envelopewill coordinate with the color of the E&PD Settlement claims administration website and be distinctfrom the color of the envelope containing the Medical Settlement Notice Packet (which willcoordinate with the Medical Benefits claims administration website). The Publication Noticefeatures a prominent headline (“Deepwater Horizon Oil Spill – Economic and Property DamagesSettlement – Providing Money to Individuals and Businesses”) in bold text. These designelements alert recipients and readers that the Notice is an important document authorized by a courtand that the content may affect them, thereby supplying reasons to read the Notice. 71. The Detailed Notice provides substantial information to Settlement Class Members. TheE&PD Detailed Notice begins with a summary page providing a concise overview of the importantinformation and a table highlighting key options available to E&PD Settlement Class Members. Atable of contents, categorized into logical sections, helps to organize the information, while a DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 26
  • 111. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 28 of 206question and answer format makes it easy to find answers to common questions by breaking theinformation into simple headings. 72. The Email Notice will include substantially the same content as the text of thePublication Notice that is specific to the E&PD Settlement, and will contain an embedded link to thenotice website where the Detailed Notice and other settlement information can be accessed. TheEmail Notice will be provided using an embedded HTML text format. This format will provide textthat is easy to read without graphics, tables, images and other elements that would increase thelikelihood that the message is blocked by Internet Service Providers (ISP’s) and/or SPAM filters. 73. The ad units in which the Publication Notice will appear in will promote attention to theE&PD Settlement. The Notices are either full-page units in the local newspapers or double-pagespreads in most print publications to promote readership. 74. The Television and Radio Notices are designed to stand apart from regular consumerads. Because they are designed to look and sound different from commercials selling products,viewers and listeners will understand the Notice’s significance and take notice. Key words andconcepts will be depicted on screen. The principles of communication dictate visual and verbalrepetition of key concepts presented. A convenient response-oriented approach is provided. In theTelevision Notice, the website and toll-free number will be spoken and shown on the screen longenough to allow Class Members to write them down or remember them. The Radio Notice willrepeat the toll-free number and website if time permits. Simple information allows sufficientunderstanding. Although concise, the purpose of the Notice is served by delivering the substance ofthe message (that there are two separate Settlements) and prompting a response to get moreinformation. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 27
  • 112. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 29 of 206 CONCLUSION 75. In class action notice planning, execution, and analysis, we are guided by dueprocess considerations under the United States Constitution, by federal and local rules andstatutes, and further by case law pertaining to notice. This framework directs that the noticeprogram be designed to reach the greatest practicable number of potential Class Members and, ina settlement class action notice situation such as this, that the notice or notice program itself notlimit knowledge of the availability of benefits—nor the ability to exercise other options—toClass Members in any way. All of these requirements will be met in this case. 76. Our notice effort follows the guidance for how to satisfy due process obligationsthat a notice expert gleans from the United States Supreme Court’s seminal decisions, which are:a) to endeavor to actually inform the class, and b) to demonstrate that notice is reasonablycalculated to do so: A. “But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it,” Mullane v. Central Hanover Trust, 339 U.S. 306, 315 (1950). B. “[N]otice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) citing Mullane at 314. 77. The Notice Program will provide the best notice practicable under thecircumstances of this case, conforms to all aspects of Federal Rule of Civil Procedure 23, andcomports with the guidance for effective notice articulated in the Manual for Complex Litigation4th. DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 28
  • 113. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 30 of 206 78. As reported above, the E&PD Notice Plan will effectively reach at least 95% ofadults in the Gulf Coast Areas aged 18+ and no less than 83% of U.S. adults aged 18+. It willdeliver “noticeable” Notices to capture Class Members’ attention, and provide them withinformation necessary to understand their rights and options. 79. The E&PD Notice Plan schedule will afford enough time to provide full and propernotice to Class Members before any opt-out and objection deadline. 80. At the appropriate time, Hilsoft may also develop and implement subsequent noticeefforts as agreed to by the parties and/or directed by the Court, including a reminder notice effortin advance of the claim filing deadline. Any reminder notice effort will be guided by theperformance of and response to the E&PD Notice Plan. 81. At the conclusion of the E&PD Notice Plan, we will provide a final report verifyingits effective implementation.I declare under penalty of perjury that the foregoing is true and correct. Executed on April17, 2012. ______________________________________ Cameron R. Azari, Esq. © 2012 Hilsoft Notificatio DECLARATION OF CAMERON R. AZARI, ESQ. ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN 29
  • 114. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 31 of 206AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT NOTICES AND NOTICE PLAN
  • 115. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 32 of 206Exhibit 1 to Declaration of Cameron Azari: Hilsoft Notifications Curriculum Vitae
  • 116. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 33 of 206 Hilsoft Notifications Philadelphia Area Office Portland Area Office 1420 Locust Str 30F 10300 SW Allen Boulevard Philadelphia, PA 19102 Beaverton, OR,97005 (215) 721-2120 (503) 350-5822 (215) 721-6886 fax (503) 350-5210 fax Leading expert firm for large-scale notice plan design, implementation, and analysis, for claims processes, class actions and mass tort bankruptcies  Court-approved notice plans withstoodchallenge to U.S. Supreme Court  50+ favorable judicial comments–0 unfavorable  More than 240 cases with notices appearing in 209 countries and 53 different languages  More than 20MDL cases  Equal work for defendants and plaintiffs  Case examples include (also seeHwww.hilsoft.comH):  Largest discretionary class action notice campaign involving virtually every adult in the United States for the settlement of In re Trans Union Corp. Privacy Litigation.  Largest U.S. and Canadian retail consumer security breach notice program designed and implemented in the settlement of In re TJX Companies, Inc., Customer Data Security Breach Litigation.  Most complex national data theft class action settlement involving millions of class members in Lockwood v. Certegy Check Services, Inc.  Most comprehensive notice ever in a securities class action for the $1.1 billion settlement of In re Royal Ahold Securities and ERISA Litigation.  Largest and most complex class action in Canadian history. Designed/implemented groundbreaking notice to disparate, remote aboriginal people in the multi-billion dollar In re Residential Schools Litigation.  Largest race-based pricing case with national settlement notice to 25 million policyholders in Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 62-68 (S.D. N.Y. 2003).  Most complex notice program in history by providing worldwide notice in the $1.25 billion settlement of In re Holocaust Victims Assets, “Swiss Banks,” No. CV-96-4849 (E.D.N.Y.). Designed/implemented all U.S. and international media notice with 500+ publications in 40 countries and 27 languages.  The largest U.S. claims process ever. Designed/implemented multi-media notice campaign for the U.S. Dept. of Agriculture’s $10 billion tobacco growers’ transition payment program.  National settlement notice to 40 million people in Scott v. Blockbuster, No. D 162-535 (Tex., 136th Jud. Dist.). Withstood collateral review, Peters v. Blockbuster, 65 S.W.3d 295, 307 (Tex. App.-Beaumont 2001).  Multi-national claims bar date notice In re The Babcock & Wilcox Co., No. 00-10992 (E.D. La.) to asbestos personal injury claimants. Opposing notice expert’s reach methodology challenge rejected by court.  National publication notice in Avery v. State Farm, No. 97-L-114 (Cir. Ct. Ill.) withstood challenges to Illinois Supreme Court and U.S. Supreme Court, and re-affirmed in Avery v. State Farm, 321 Ill. App. 3d 269 (5th Dist. 2001). Notice program untouched when Illinois Supreme Court decertified Class.
  • 117. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 34 of 206 KEY BIO’SCameron Azari, Esq., Director of Legal NoticingLegal Noticing Director Cameron Azari, Esq. has nine years experience in the design andimplementation of legal notification and claims administration programs. He is a nationally recognizedspecialist in the creation of notification campaigns in compliance with Fed R. Civ. P. 23(c)(2) (d)(2)and (e) and similar state class action statutes. Cam has been responsible for dozens of legal noticeand advertising programs. High profile class actions he has been involved in include companies suchas Aetna, Humana, Wells Fargo, General Motors, Goodyear, Cigna, City of Miami, Budget Rent-a-Car, AT&T, AIG and T-Mobile. He is an active author and speaker on a broad array of legal noticeand class action topics ranging from amendments to FRCP Rule 23 to email noticing, response ratesand optimizing settlement effectiveness. Cam is an active member of the Oregon State Bar. Hereceived his B.S. from Willamette University and his J.D. from Northwestern School of Law at Lewisand Clark College. Cam can be reached at caza@legalnotice.com.Lauran Schultz, Executive DirectorLauran Schultz is responsible for overall management of Hilsoft Notifications. He consultsextensively with clients on notice adequacy and innovative legal notice programs that are bothefficient and informed by the many court-approved programs developed by Hilsoft Notifications overclose to a decade. High profile actions he has been involved in include companies such as:TransUnion, Ford Motors, Chrysler, TJX, Certegy, AIG, Dominion Resource Services, CNA,Continental Tire, Wal-Mart, Carrier Corporation, Vivendi, Parmalat, ConAgra and Toyota. Lauran hasover a dozen years of consulting and management experience developing innovative marketingprograms for nationally and internationally recognized brands such as National City, HSBC andRegions Bank along with affiliates of the American Automobile Association and Better BusinessBureau. Prior to joining Epiq Systems in 2005, Lauran was a Senior Vice President of National CityBank in Cleveland, Ohio. Lauran’s education includes advanced study in political science at theUniversity of Wisconsin-Madison, Cornell University and the London School of Economics along witha Ford Foundation fellowship from the Social Science Research Council and American Council ofLearned Societies. Lauran can be reached at lschultz@hilsoft.com. ARTICLES AND PRESENTATIONSCameron Azari Speaker, “Class Action Litigation Trends: A Look into New Cases, Theories ofLiability & Updates on the Cases to Watch.” ACI’s Consumer Finance Class Actions and Litigation,New York, NY, January, 2012.Lauran Schultz Speaker, “Legal Notice Best Practices: Building a Workable Settlement Structure.”CLE International’s 7th Annual Class Action Conference, San Francisco, CA, May, 2011.Cameron Azari Speaker, “Data Breaches Involving Consumer Financial Information: LitigationExposures and Settlement Considerations.” ACI’s Consumer Finance Class Actions and Litigation,New York, NY, January, 2011.Cameron Azari Speaker, “Notice in Consumer Class Actions: Adequacy, Efficiency and BestPractices.” CLE International’s 5th Annual Class Action Conference: Prosecuting and DefendingComplex Litigation, San Francisco, CA, 2009.Lauran Schultz Speaker, “Efficiency and Adequacy Considerations in Class Action Media NoticePrograms.” Chicago Bar Association, Chicago, IL, 2009.Cameron Azari Author, “Clearing the Five Hurdles of Email - Delivery of Class Action Legal Notices”- Thomson Reuters Class Action Litigation Reporter – June, 2008.Cameron Azari Speaker, “Planning for a Smooth Settlement.” ACI: Class Action Defense - ComplexSettlement Administration for the Class Action Litigator, Phoenix, AZ, 2007. 2
  • 118. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 35 of 206 Cameron Azari Speaker, Noticing and Response Rates in Class Action Settlements” – Class Action Bar Gathering, Vancouver, British Columbia, 2007. Cameron Azari Speaker, “Structuring a Litigation Settlement.” CLE International’s 3rd Annual Conference on Class Actions, Los Angeles, CA, 2007. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Skadden Arps Slate Meagher & Flom, LLP, 2006. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Bridgeport Continuing Legal Education, Class Action and the UCL, 2006. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stoel Rives litigation group, Portland/Seattle/Boise/Salt Lake City, 2005. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stroock Stroock & Lavan litigation group, Los Angeles, CA, 2005. Cameron Azari Author, “Twice the Notice or No Settlement” – Current Developments – Issue II, August, 2003. Cameron Azari Speaker, “A Scientific Approach to Legal Notice Communication” – Weil Gotshal litigation group, New York, 2003. JUDICIAL COMMENTSJudge Robert M. Dow, Jr., Schulte v. Fifth Third Bank, (July 29, 2011) No. 1:09-cv-6655 (N.D. Ill.): The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members.Judge Lee Rosenthal, In re: Heartland Payment Systems, Inc Customer Data Security Breach Litigation,(March 2, 2012) MDL 09-2046 (S.D. Tex.): The notice that has been given clearly complies with Rule 23(e)(1)’s reasonableness requirement… Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, ¶ 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice “were written in easy-to-understand plain English.” In re Black Farmers Discrimination Litig., — F. Supp. 2d —, 2011 WL 5117058, at *23 (D.D.C. 2011); accord AGGREGATE LITIGATION § 3.04(c).15 The notice provided “satisf[ies] the broad reasonableness standards imposed by due process” and Rule 23. Katrina Canal Breaches, 628 F.3d at 197 (internal quotation marks omitted).Judge Barbara Crowder, Dolen v. ABN AMRO Bank N.V., (March 23, 2009) No. 01-L-454, 01-L-493, (3rd Jud.Cir. Ill.): The Court finds that the Notice Plan is the best notice practicable under the circumstances and provides the Eligible Members of the Settlement Class sufficient information to make informed and meaningful decisions regarding their options in this Litigation and the effect of the Settlement on their rights. The Notice Plan further satisfies the requirements of due process and 735 ILCS 5/2-803. That Notice Plan is approved and accepted. This Court further finds that the Notice of Settlement and Claim Form comply with 735 ILCS 5/2-803 and are appropriate as part of the Notice Plan and the Settlement, and thus they are hereby approved and adopted. This Court further finds that no other notice other than that identified in the Notice Plan is reasonably necessary in this Litigation. 3
  • 119. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 36 of 206Judge Ellis J. Daigle, Williams v. Hammerman & Gainer Inc., (June 30, 2011) No. 11-C-3187-B (27th Jud. D.Ct. La.): Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings—including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court’s order of 30th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members’ right to be represented by private counsel, at their own cost, and Settlement Class members’ right to appear in Court to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class.Judge Stefan R. Underhill, Mathena v. Webster Bank, N.A., (March 24, 2011) No. 3:10-cv-1448 (D. Conn.): The form, content, and method of dissemination of Notice given to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process.Judge Ted Stewart, Miller v. Basic Research, LLC, (September 2, 2010) No. 2:07-cv-871 (D. Utah): Plaintiffs state that they have hired a firm specializing in designing and implementing large scale, unbiased, legal notification plans.69 Plaintiffs represent to the Court that such notice will include: 1) individual notice by electronic mail and/or first-class mail sent to all reasonably identifiable Class members; 2) nationwide paid media notice through a combination of print publications, including newspapers, consumer magazines, newspaper supplements and the Internet; 3) a neutral, Court-approved, informational press release; 4) a neutral, Court-approved Internet website; and 5) a toll-free telephone number. Similar mixed media plans have been approved by other district courts post class certification. The Court finds this plan is sufficient to meet the notice requirement.Judge Sara Loi, Pavlov v. Continental Casualty Co., (October 7, 2009) No. 5:07cv2580 (N.D. Ohio): As previously set forth in this Memorandum Opinion, the elaborate notice program contained in the Settlement Agreement provides for notice through a variety of means, including direct mail to each class member, notice to the United States Attorney General and each State, a toll free number, and a website designed to provide information about the settlement and instructions on submitting claims. With a 99.9% effective rate, the Court finds that the notice program constituted the “best notice that is practicable under the circumstances,” Fed. R. Civ. P. 23(c)(2)(B), and clearly satisfies the requirements of Rule 23(c)(2)(B).Judge James Robertson, In re: Department of Veterans Affairs (VA) Data Theft Litigation, (September 23,2009) MDL No. 1796 (D. D.C.): The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all person entitled to receive notice. 4
  • 120. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 37 of 206Judge Lisa F. Chrystal, Little v. Kia Motors America, Inc., (August 27, 2009) No. UNN-L-0800-01 (N.J. Super.Ct.): The Court finds that the manner and content of the notices for direct mailing and for publication notice, as specified in the Notice Plan (Exhibit 2 to the Affidavit of Lauran R. Schultz), provides the best practicable notice of judgment to members of the Plaintiff Class.Judge Robert W. Gettleman, In re Trans Union Corp., (September 17, 2008) MDL No. 1350 (N.D. Ill.): The Court finds that the dissemination of the Class Notice under the terms and in the format provided for in its Preliminary Approval Order constitutes the best notice practicable under the circumstances, is due and sufficient notice for all purposes to all persons entitled to such notice, and fully satisfies the requirements of the Federal Rules of Civil Procedure, the requirements of due process under the Constitution of the United States, and any other applicable law…Accordingly, all objections are hereby OVERRULED.Judge William G. Young, In re TJX Companies, (September 2, 2008) MDL No. 1838 (D. Mass.): The form, content, and method of dissemination of notice provided to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process.Judge Steven D. Merryday, Lockwood v. Certegy Check Services, Inc., (September 3, 2008) No. 8:07-cv-1434-T-23TGW (M.D. Fla.): The form, content, and method of dissemination of the notice given to the Settlement Class were adequate and reasonable and constituted the best notice practicable in the circumstances. The notice as given provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions of the Settlement Agreement, and these proceedings to all persons entitled to such notice, and the notice satisfied the requirements of Rule 23, Federal Rules of Civil Procedure, and due process.Judge Philip S. Gutierrez, Shaffer v. Continental Casualty Co., (June 11, 2008) SACV-06-2235-PSG (PJWx)(C.D. Cal.): …was reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and met all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clauses), the Rules of the Court, and any other applicable law.Judge Robert L. Wyatt, Gunderson v. AIG Claim Services, Inc., (May 29, 2008) No. 2004-002417 (14th Jud.D. Ct. La.): Notices given to Settlement Class members…were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination…Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class.Judge Mary Anne Mason, Palace v. DaimlerChrysler Corp., (May 29, 2008) No. 01-CH-13168 (Ill. Cir. Ct.): The form, content, and method of dissemination of the notice given to the Illinois class and to the Illinois Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The notice, as given, provided valid, due, and sufficient 5
  • 121. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 38 of 206 notice of the proposed Settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings, to all Persons entitled to such notice, and said notice fully satisfied the requirements of due process and complied with 735 ILCS §§5/2-803 and 5/2-806.Judge David De Alba, Ford Explorer Cases, (May 29, 2008) JCCP Nos. 4226 & 4270 (Cal. Super. Ct.): [T]he Court is satisfied that the notice plan, design, implementation, costs, reach, were all reasonable, and has no reservations about the notice to those in this state and those in other states as well, including Texas, Connecticut, and Illinois; that the plan that was approved— submitted and approved, comports with the fundamentals of due process as described in the case law that was offered by counsel.Judge Kirk D. Johnson, Webb v. Liberty Mutual Ins. Co., (March 3, 2008) No. CV-2007-418-3 (Ark. Cir. Ct.): The Court finds that there was minimal opposition to the settlement. After undertaking an extensive notice campaign to Class members of approximately 10,707 persons, mailed notice reached 92.5% of potential Class members.Judge Carol Crafton Anthony, Johnson v. Progressive Casualty Ins., Co., (December 6, 2007) No. CV-2003-513 (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated…Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice reached a large majority of the Class members. The Court finds that such notice constitutes the best notice practicable…The forms of Notice and Notice Plan satisfy all of the requirements of Arkansas law and due process.Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co., (August 20, 2007) No. CV-2007-154-3(Ark. Cir. Ct.): The Court does find that all notices required by the Court to be given to class members was done within the time allowed and the manner best calculated to give notice and apprise all the interested parties of the litigation. It was done through individual notice, first class mail, through internet website and the toll-free telephone call center…The Court does find that these methods were the best possible methods to advise the class members of the pendency of the action and opportunity to present their objections and finds that these notices do comply with all the provisions of Rule 23 and the Arkansas and United States Constitutions.Judge Robert Wyatt, Gunderson v. F.A. Richard & Associates, Inc., (July 19, 2007) No. 2004-2417-D (14thJud. D. Ct. La.): Okay. Let me sign this one. This is the final Order and Judgment regarding the fairness, reasonableness and adequacy. And I am satisfied in all respects regarding the presentation that’s been made to the Court this morning in the Class memberships, the representation, the notice, and all other aspects and I’m signing that Order at this time. Congratulations, gentlemen.Judge Lewis A. Kaplan, In re Parmalat Securities Litig., (July 19, 2007) MDL No. 1653-LAK (S.D. N.Y.): The Court finds that the distribution of the Notice, the publication of the Publication Notice, and the notice methodology…met all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, (including the Due Process clause), the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 78u-4, et seq.) (the “PSLRA”), the Rules of the Court, and any other applicable law.Judge Joe Griffin, Beasley v. The Reliable Life Insurance Co., (March 29, 2007) No. CV-2005-58-1 (Ark. Cir.Ct.): [T]he Court has, pursuant to the testimony regarding the notification requirements, that were specified and adopted by this Court, has been satisfied and that they meet the requirements of due process. They are fair, reasonable, and adequate. I think the method of notification certainly 6
  • 122. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 39 of 206 meets the requirements of due process…So the Court finds that the notification that was used for making the potential class members aware of this litigation and the method of filing their claims, if they chose to do so, all those are clear and concise and meet the plain language requirements and those are completely satisfied as far as this Court is concerned in this matter.Judge Lewis A. Kaplan, In re Parmalat Securities Litig., (March 1, 2007) MDL No. 1653-LAK (S.D. N.Y.): The court approves, as to form and content, the Notice and the Publication Notice, attached hereto as Exhibits 1 and 2, respectively, and finds that the mailing and distribution of the Notice and the publication of the Publication Notice in the manner and the form set forth in Paragraph 6 of this Order…meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Securities Exchange Act of 1934, as emended by Section 21D(a)(7) of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(a)(7), and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons and entities entitled thereto.Judge Anna J. Brown, Reynolds v. The Hartford Financial Services Group, Inc., (February 27, 2007) No.CV-01-1529-BR (D. Ore): [T]he court finds that the Notice Program fairly, fully, accurately, and adequately advised members of the Settlement Class and each Settlement Subclass of all relevant and material information concerning the proposed settlement of this action, their rights under Rule 23 of the Federal Rules of Civil Procedure, and related matters, and afforded the Settlement Class with adequate time and an opportunity to file objections to the Settlement or request exclusion from the Settlement Class. The court finds that the Notice Program constituted the best notice practicable under the circumstances and fully satisfied the requirements of Rule 23 and due process.Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the Midwest, (February 13, 2007) No.CV-2006-409-3 (Ark. Cir. Ct.): Based on the Court’s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Class Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminary Approval Order, was the best notice practicable under the circumstances to all members of the Settlement Class. Accordingly, the Class Notice and Claim Form as disseminated are finally approved as fair, reasonable, and adequate notice under the circumstances. The Court finds and concludes that due and adequate notice of the pendency of this Action, the Stipulation, and the Final Settlement Hearing has been provided to members of the Settlement Class, and the Court further finds and concludes that the notice campaign described in the Preliminary Approval Order and completed by the parties complied fully with the requirements of Arkansas Rule of Civil Procedure 23 and the requirements of due process under the Arkansas and United States Constitutions.Judge Richard J. Holwell, In re Vivendi Universal, S.A. Securities Litig., 2007 WL 1490466, at *34 (S.D.N.Y.): In response to defendants’ manageability concerns, plaintiffs have filed a comprehensive affidavit outlining the effectiveness of its proposed method of providing notice in foreign countries. According to this…the Court is satisfied that plaintiffs intend to provide individual notice to those class members whose names and addresses are ascertainable, and that plaintiffs’ proposed form of publication notice, while complex, will prove both manageable and the best means practicable of providing notice.Judge Samuel Conti, Ciabattari v. Toyota Motor Sales, U.S.A., Inc., (November 17, 2006) No. C-05-04289-SC(N.D. Cal.): After reviewing the evidence and arguments presented by the parties…the Court finds as follows…The class members were given the best notice practicable under the circumstances, and that such notice meets the requirements of the Due Process Clause of the U.S. Constitution, and all applicable statutes and rules of court. 7
  • 123. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 40 of 206Judge Ivan L.R. Lemelle, In re High Sulfur Content Gasoline Prods. Liability Litig, (November 8, 2006) MDLNo. 1632 (E.D. La.): This Court approved a carefully-worded Notice Plan, which was developed with the assistance of a nationally-recognized notice expert, Hilsoft Notifications…The Notice Plan for this Class Settlement was consistent with the best practices developed for modern-style “plain English” class notices; the Court and Settling Parties invested substantial effort to ensure notice to persons displaced by the Hurricanes of 2005; and as this Court has already determined, the Notice Plan met the requirements of Rule 23 and constitutional due process.Judge Catherine C. Blake, In re Royal Ahold Securities and “ERISA” Litig., (November 2, 2006) MDL-1539(D. Md.): The global aspect of the case raised additional practical and legal complexities, as did the parallel criminal proceedings in another district. The settlement obtained is among the largest cash settlements ever in a securities class action case and represents an estimated 40% recovery of possible provable damages. The notice process appears to have been very successful not only in reaching but also in eliciting claims from a substantial percentage of those eligible for recovery.Judge Elaine E. Bucklo, Carnegie v. Household International, (August 28, 2006) No. 98 C 2178 (N.D. Ill.): [T]he Notice was disseminated pursuant to a plan consisting of first class mail and publication developed by Plaintiff’s notice consultant, Hilsoft Notification[s]…who the Court recognized as experts in the design of notice plans in class actions. The Notice by first-class mail and publication was provided in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies all requirements of Rule 23(e) and due process.Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the Midwest, (June 13, 2006) No. CV-2005-58-1 (Ark. Cir. Ct.): Based on the Court’s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Individual Notice and the Publication Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminarily Approval Order, was the best notice practicable under the circumstances…and the requirements of due process under the Arkansas and United States Constitutions.Judge Norma L. Shapiro, First State Orthopaedics et al. v. Concentra, Inc., et al., (May 1, 2006) No. 2:05-CV-04951-NS (E.D. Pa.): The Court finds that dissemination of the Mailed Notice, Published Notice and Full Notice in the manner set forth here and in the Settlement Agreement meets the requirements of due process and Pennsylvania law. The Court further finds that the notice is reasonable, and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice, is the best practicable notice; and is reasonably calculated, under the circumstances, to apprise members of the Settlement Class of the pendency of the Lawsuit and of their right to object or to exclude themselves from the proposed settlement.Judge Thomas M. Hart, Froeber v. Liberty Mutual Fire Ins. Co., (April 19, 2006) No. 00C15234 (Ore. Cir. Ct.): The court has found and now reaffirms that dissemination and publication of the Class Notice in accordance with the terms of the Third Amended Order constitutes the best notice practicable under the circumstances.Judge Catherine C. Blake, In re Royal Ahold Securities and “ERISA” Litig., (January 6, 2006) MDL-1539 (D.Md.): I think it’s remarkable, as I indicated briefly before, given the breadth and scope of the proposed Class, the global nature of the Class, frankly, that again, at least on a preliminary basis, and I will 8
  • 124. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 41 of 206 be getting a final report on this, that the Notice Plan that has been proposed seems very well, very well suited, both in terms of its plain language and in terms of its international reach, to do what I hope will be a very thorough and broad-ranging job of reaching as many of the shareholders, whether individual or institutional, as possibly can be done to participate in what I also preliminarily believe to be a fair, adequate and reasonable settlement.Judge Catherine C. Blake, In re Royal Ahold Securities & “ERISA” Litig., 437 F.Supp.2d 467, 472 (D. Md.2006): The court hereby finds that the Notice and Notice Plan described herein and in the Order dated January 9, 2006 provided Class Members with the best notice practicable under the circumstances. The Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement and Plan of Allocation, to all persons entitled to such notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.Judge Robert H. Wyatt, Jr., Gray v. New Hampshire Indemnity Co., Inc., (December 19, 2005) No. CV-2002-952-2-3 (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The Notice contained the essential elements necessary to satisfy due process, including the Settlement Class definition, the identities of the Parties and of their counsel, a summary of the terms of the proposed settlement, Class Counsel’s intent to apply for fees, information regarding the manner in which objections could be submitted, and requests for exclusions could be filed. The Notice properly informed Class members of the formula for the distribution of benefits under the settlement…Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice was also effected by publication in many newspapers and magazines throughout the nation, reaching a large majority of the Class members multiple times. The Court finds that such notice constitutes the best notice practicable.Judge Michael J. O’Malley, Defrates v. Hollywood Entm’t Corp., (June 24, 2005) No. 02 L 707 (Ill. Cir. Ct.): [T]his Court hereby finds that the notice program described in the Preliminary Approval Order and completed by HEC complied fully with the requirements of due process, the Federal Rules of Civil Procedure and all other applicable laws.Judge Wilford D. Carter, Thibodeaux v. Conoco Phillips Co., (May 26, 2005) No. 2003-481 F (14th J.D. Ct.La.): Notice given to Class Members…were reasonably calculated under all the circumstances and have been sufficient, both as to the form and content…Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due process and sufficient notice to all potential members of the Class as Defined.Judge Michael Canaday, Morrow v. Conoco Inc., (May 25, 2005) No. 2002-3860 G (14th J.D. Ct. La.): The objections, if any, made to due process, constitutionality, procedures, and compliance with law, including, but not limited to, the adequacy of notice and the fairness of the proposed Settlement Agreement, lack merit and are hereby overruled.Judge John R. Padova, Nichols v. SmithKline Beecham Corp., (April 22, 2005) No. 00-6222 (E.D. Pa.): Pursuant to the Order dated October 18, 2004, End-Payor Plaintiffs employed Hilsoft Notifications to design and oversee Notice to the End-Payor Class. Hilsoft Notifications has extensive experience in class action notice situations relating to prescription drugs and cases in which unknown class members need to receive notice…After reviewing the individual mailed Notice, the 9
  • 125. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 42 of 206 publication Notices, the PSAs and the informational release, the Court concludes that the substance of the Notice provided to members of the End-Payor Class in this case was adequate to satisfy the concerns of due process and the Federal Rules.Judge Douglas L. Combs, Morris v. Liberty Mutual Fire Ins. Co., (February 22, 2005) No. CJ-03-714(D. Okla.): I am very impressed that the notice was able to reach – be delivered to 97 ½ percent members of the class. That, to me, is admirable. And I’m also – at the time that this was initially entered, I was concerned about the ability of notice to be understood by a common, nonlawyer person, when we talk about legalese in a court setting. In this particular notice, not only the summary notice but even the long form of the notice were easily understandable, for somebody who could read the English language, to tell them whether or not they had the opportunity to file a claim.Judge Joseph R. Goodwin, In re Serzone Products Liability Litig., 231 F.R.D. 221, 231 (S.D. W. Va. 2005): The Notice Plan was drafted by Hilsoft Notifications, a Pennsylvania firm specializing in designing, developing, analyzing and implementing large-scale, unbiased legal notification plans. Hilsoft has disseminated class action notices in more than 150 cases, and it designed the model notices currently displayed on the Federal Judicial Center’s website as a template for others to follow…To enhance consumer exposure, Hilsoft studied the demographics and readership of publications among adults who used a prescription drug for depression in the last twelve months. Consequently, Hilsoft chose to utilize media particularly targeting women due to their greater incidence of depression and heavy usage of the medication.Judge Richard G. Stearns, In re Lupron® Marketing and Sales Practice Litig., (November 24, 2004) MDL1430 (D. Mass.): After review of the proposed Notice Plan designed by Hilsoft Notifications…is hereby found to be the best practicable notice under the circumstances and, when completed, shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Rule 23 the Federal Rules of Civil Procedure and due process.Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice Litig., (November 23, 2004) MDL1430 (D. Mass.): I actually find the [notice] plan as proposed to be comprehensive and extremely sophisticated and very likely be as comprehensive as any plan of its kind could be in reaching those most directly affected.Judge James S. Moody, Jr., Mantzouris v. Scarritt Motor Group Inc., (August 10, 2004) No. 8:03 CV- 0015-T-30 MSS (M.D. Fla.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the members of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement, it is hereby determined that all members of the Class, except for Ms. Gwendolyn Thompson, who was the sole person opting out of the Settlement Agreement, are bound by this Order and Final Judgment entered herein.Judge Robert E. Payne, Fisher v. Virginia Electric & Power Co., (July 1, 2004) No. 3:02CV431 (E.D. Va.): The record here shows that the class members have been fully and fairly notified of the existence of the class action, of the issues in it, of the approaches taken by each side in it in such a way as to inform meaningfully those whose rights are affected and to thereby enable them to exercise their rights intelligently…The success rate in notifying the class is, I believe, at least in my experience, I share Ms. Kauffman’s experience, it is as great as I have ever seen in practicing or serving in this job…So I don’t believe we could have had any more effective notice. 10
  • 126. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 43 of 206 Judge John Kraetzer, Baiz v. Mountain View Cemetery, (April 14, 2004) No. 809869-2 (Cal. Super. Ct.): The notice program was timely completed, complied with California Government Code section 6064, and provided the best practicable notice to all members of the Settlement Class under the circumstances. The Court finds that the notice program provided class members with adequate instructions and a variety of means to obtain information pertaining to their rights and obligations under the settlement so that a full opportunity has been afforded to class members and all other persons wishing to be heard…The Court has determined that the Notice given to potential members of the Settlement Class fully and accurately informed potential Members of the Settlement Class of all material elements of the proposed settlement and constituted valid, due, and sufficient notice to all potential members of the Settlement Class, and that it constituted the best practicable notice under the circumstances. Hospitality Mgmt. Assoc., Inc. v. Shell Oil Co., 356 S.C. 644, 663, 591 S.E.2d 611, 621 (Sup. Ct. S.C. 2004): Clearly, the Cox court designed and utilized various procedural safeguards to guarantee sufficient notice under the circumstances. Pursuant to a limited scope of review, we need go no further in deciding the Cox courts findings that notice met due process are entitled to deference.1BJudge Joseph R. Goodwin, In re Serzone Prods. Liability Litig., 2004 U.S. Dist. LEXIS 28297, at *10(S.D. W. Va.): The Court has considered the Notice Plan and proposed forms of Notice and Summary Notice submitted with the Memorandum for Preliminary Approval and finds that the forms and manner of notice proposed by Plaintiffs and approved herein meet the requirements of due process and Fed.R.Civ.P. 23(c) and (e), are the best notice practicable under the circumstances, constitute sufficient notice to all persons entitled to notice, and satisfy the Constitutional requirements of notice.Judge James D. Arnold, Cotten v. Ferman Mgmt. Servs. Corp., (November 26, 2003) No. 02-08115 (Fla. Cir.Ct.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the member of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement… Judge Judith K. Fitzgerald, In re Pittsburgh Corning Corp., (November 26, 2003) No. 00-22876-JKF (Bankr. W.D. Pa.): The procedures and form of notice for notifying the holders of Asbestos PI Trust Claims, as described in the Motion, adequately protect the interests of the holders of Asbestos PI Trust Claims in a manner consistent with the principles of due process, and satisfy the applicable requirements of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Judge Carter Holly, Richison v. American Cemwood Corp., (November 18, 2003) No. 005532 (Cal. Super. Ct.): As to the forms of Notice, the Court finds and concludes that they fully apprised the Class members of the pendency of the litigation, the terms of the Phase 2 Settlement, and Class members’ rights and options…Not a single Class member—out of an estimated 30,000—objected to the terms of the Phase 2 Settlement Agreement, notwithstanding a comprehensive national Notice campaign, via direct mail and publication Notice…The notice was reasonable and the best notice practicable under the circumstances, was due, adequate, and sufficient notice to all Class members, and complied fully with the laws of the State of California, the Code of Civil Procedure, due process, and California Rules of Court 1859 and 1860. Judge Thomas A. Higgins, In re Columbia/HCA Healthcare Corp., (June 13, 2003) No. 3-98-MDL-1227 (M.D. Tenn.): 11
  • 127. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 44 of 206 Notice of the settlement has been given in an adequate and sufficient manner. The notice provided by mailing the settlement notice to certain class members and publishing notice in the manner described in the settlement was the best practicable notice, complying in all respects with the requirements of due process.Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 68 (S.D.N.Y. 2003): In view of the extensive notice campaign waged by the defendant, the extremely small number of class members objecting or requesting exclusion from the settlement is a clear sign of strong support for the settlement…The notice provides, in language easily understandable to a lay person, the essential terms of the settlement, including the claims asserted…who would be covered by the settlement…[T]he notice campaign that defendant agreed to undertake was extensive…I am satisfied, having reviewed the contents of the notice package, and the extensive steps taken to disseminate notice of the settlement, that the class notice complies with the requirements of Rule 23 (c)(2) and 23(e). In summary, I have reviewed all of the objections, and none persuade me to conclude that the proposed settlement is unfair, inadequate or unreasonable.Judge Edgar E. Bayley, Dimitrios v. CVS, Inc., (November 27, 2002) No. 99-6209; Walker v. Rite Aid Corp.,No. 99-6210; and Myers v. Rite Aid Corp., No. 01-2771 (Pa. Ct. C.P.): The Court specifically finds that: fair and adequate notice has been given to the class, which comports with due process of law.Judge Dewey C. Whitenton, Ervin v. Movie Gallery, Inc., (November 22, 2002) No. 13007 (Tenn. Ch.): The content of the class notice also satisfied all due process standards and state law requirements…The content of the notice was more than adequate to enable class members to make an informed and intelligent choice about remaining in the class or opting out of the class.Judge James R. Williamson, Kline v. The Progressive Corp., (November 14, 2002) No. 01-L-6 (Ill. Cir. Ct.): Notice to the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The notice contained the essential elements necessary to satisfy due process…Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (September 13, 2002) No. L-008830.00 (N.J.Super. Ct.): Here, the comprehensive bilingual, English and Spanish, court-approved Notice Plan provided by the terms of the settlement meets due process requirements. The Notice Plan used a variety of methods to reach potential class members. For example, short form notices for print media were placed…throughout the United States and in major national consumer publications which include the most widely read publications among Cooper Tire owner demographic groups.Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., (September 3, 2002) No. 00 Civ. 5071-HB(S.D. N.Y.): The Court further finds that the Class Notice and Publication Notice provided in the Settlement Agreement are written in plain English and are readily understandable by Class Members. In sum, the Court finds that the proposed notice texts and methodology are reasonable, that they constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and that they meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law.Judge Milton Gunn Shuffield, Scott v. Blockbuster Inc., (January 22, 2002) No. D 162-535 (Tex. Jud. Dist.Ct.) Ultimately withstood challenge to Court of Appeals of Texas. Peters v. Blockbuster 65 S.W.3d 295, 307 (Tex.App.-Beaumont, 2001): 12
  • 128. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 45 of 206 In order to maximize the efficiency of the notice, a professional concern, Hilsoft Notifications, was retained. This Court concludes that the notice campaign was the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the settlement and afford them an opportunity to present their objections…The notice campaign was highly successful and effective, and it more than satisfied the due process and state law requirements for class notice.Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 30, 2001) No. MID-L-8839-00-MT(N.J. Super. Ct.): The parties have crafted a notice program which satisfies due process requirements without reliance on an unreasonably burdensome direct notification process…The form of the notice is reasonably calculated to apprise class members of their rights. The notice program is specifically designed to reach a substantial percentage of the putative settlement class members.Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 29, 2001) No. L-8830-00-MT (N.J.Super. Ct.): I saw the various bar graphs for the different publications and the different media dissemination, and I think that was actually the clearest bar graph I’ve ever seen in my life…it was very clear of the time periods that you were doing as to each publication and which media you were doing over what market time, so I think that was very clear.Judge Stuart R. Pollak, Microsoft I-V Cases, (April 1, 2001) J.C.C.P. No. CJC-00-004106 (Cal. Super. Ct.): [C]oncerning dissemination of class notice; and I have reviewed the materials that have been submitted on that subject and basically I’m satisfied. I think it’s amazing if you’re really getting 80 percent coverage. That’s very reassuring. And the papers that you submitted responded to a couple things that had been mentioned before and I am satisfied with all that.Judge Stuart R. Pollak, Microsoft I-V Cases, (March 30, 2001) J.C.C.P. No. 4106 (Cal. Super. Ct.): Plaintiffs and Defendant Microsoft Corporation have submitted a joint statement in support of their request that the Court approve the plan for dissemination of class action notice and proposed forms of notice, and amend the class definition. The Court finds that the forms of notice to Class members attached hereto as Exhibits A and B fairly and adequately inform the Class members of their rights concerning this litigation. The Court further finds that the methods for dissemination of notice are the fairest and best practicable under the circumstances, and comport with due process requirements. LEGAL NOTICE CASESHilsoft Notifications has served as notice expert for planning, implementation and/or analysis in the followingpartial listing of cases: Andrews v. MCI (900 Number Litig.) S.D. Ga., CV 191-175 Harper v. MCI (900 Number Litig.) S.D. Ga., CV 192-134 In re Bausch & Lomb Contact Lens Litig. N.D. Ala., 94-C-1144-WW In re Ford Motor Co. Vehicle Paint Litig. E.D. La., MDL 1063 Castano v. Am. Tobacco E.D. La., CV 94-1044 Cox v. Shell Oil (Polybutylene Pipe Litig.) Tenn. Ch., 18,844 In re Amino Acid Lysine Antitrust Litig. N.D. Ill., MDL 1083 13
  • 129. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 46 of 206In re Dow Corning Corp. (Breast Implant Bankruptcy) E.D. Mich., 95-20512-11-AJSKunhel v. CNA Ins. Companies N.J. Super. Ct., ATL-C-0184-94In re Factor Concentrate Blood Prods. Litig. (Hemophiliac N.D. Ill., MDL 986HIV)In re Ford Ignition Switch Prods. Liability Litig. D. N.J., 96-CV-3125Jordan v. A.A. Friedman (Non-Filing Ins. Litig.) M.D. Ga., 95-52-COLKalhammer v. First USA (Credit Card Litig.) Cal. Cir. Ct., C96-45632010-CALNavarro-Rice v. First USA (Credit Card Litig.) Ore. Cir. Ct., 9709-06901Spitzfaden v. Dow Corning (Breast Implant Litig.) La. D. Ct., 92-2589Robinson v. Marine Midland (Finance Charge Litig.) N.D. Ill., 95 C 5635McCurdy v. Norwest Fin. Alabama Ala. Cir. Ct., CV-95-2601Johnson v. Norwest Fin. Alabama Ala. Cir. Ct., CV-93-PT-962-SIn re Residential Doors Antitrust Litig. E.D. Pa., MDL 1039Barnes v. Am. Tobacco Co. Inc. E.D. Pa., 96-5903Small v. Lorillard Tobacco Co. Inc. N.Y. Super. Ct., 110949/96Naef v. Masonite Corp (Hardboard Siding Litig.) Ala. Cir. Ct., CV-94-4033In re Synthroid Mktg. Litig. N.D. Ill., MDL 1182Chisolm v. Transouth Fin. 4th U.S. Cir. Ct., 97-1970Raysick v. Quaker State Slick 50 Inc. D. Tex., 96-12610Castillo v. Mike Tyson (Tyson v. Holyfield Bout) N.Y. Super. Ct., 114044/97Avery v. State Farm Auto. Ins. (Non-OEM Auto Parts Litig.) Ill. Cir. Ct., 97-L-114Walls v. The Am. Tobacco Co. Inc. N.D. Okla., 97-CV-218-HTempest v. Rainforest Café (Securities Litig.) D. Minn., 98-CV-608Stewart v. Avon Prods. (Securities Litig.) E.D. Pa., 98-CV-4135Goldenberg v. Marriott PLC Corp (Securities Litig.) D. Md., PJM 95-3461Delay v. Hurd Millwork (Building Products Litig.) Wash. Super. Ct., 97-2-07371-0Gutterman v. Am. Airlines (Frequent Flyer Litig.) Ill. Cir. Ct., 95CH982Hoeffner v. The Estate of Alan Kenneth Vieira (Un-scattered Cal. Super. Ct., 97-AS 02993Cremated Remains Litig.)In re Graphite Electrodes Antitrust Litig. E.D. Pa., MDL 1244In re Silicone Gel Breast Implant Prods. Liability Litig., N.D. Ala., MDL 926Altrichter v. INAMEDSt. John v. Am. Home Prods. Corp. (Fen/Phen Litig.) Wash. Super. Ct., 97-2-06368Crane v. Hackett Assocs. (Securities Litig.) E.D. Pa., 98-5504In re Holocaust Victims Assets Litig. (Swiss Banks Litig.) E.D. N.Y., CV-96-4849McCall v. John Hancock (Settlement Death Benefits) N.M. Cir. Ct., CV-2000-2818Williams v. Weyerhaeuser Co. (Hardboard Siding Litig.) Cal. Super. Ct., CV-995787 14
  • 130. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 47 of 206Kapustin v. YBM Magnex Int’l Inc. (Securities Litig.) E.D. Pa., 98-CV-6599Leff v. YBM Magnex Int’l Inc. (Securities Litig.) E.D. Pa., 95-CV-89In re PRK/LASIK Consumer Litig. Cal. Super. Ct., CV-772894Hill v. Galaxy Cablevision N.D. Miss., 1:98CV51-D-DScott v. Am. Tobacco Co. Inc. La. D. Ct., 96-8461Jacobs v. Winthrop Fin. Assocs. (Securities Litig.) D. Mass., 99-CV-11363Int’l Comm’n on Holocaust Era Ins. Claims – Worldwide Former Secretary of State LawrenceOutreach Program Eagleburger CommissionBownes v. First USA Bank (Credit Card Litig.) Ala. Cir. Ct., CV-99-2479-PRWhetman v. IKON (ERISA Litig.) E.D. Pa., 00-87Mangone v. First USA Bank (Credit Card Litig.) Ill. Cir. Ct., 99AR672aIn re Babcock and Wilcox Co. (Asbestos Related Bankruptcy) E.D. La., 00-10992Barbanti v. W.R. Grace and Co. (Zonolite / Asbestos Litig.) Wash. Super. Ct., 00201756-6Brown v. Am. Tobacco Cal. Super. Ct., J.C.C.P. 4042, 711400Wilson v. Servier Canada Inc. (Canadian Fen/Phen Litig.) Ont. Super. Ct., 98-CV-158832 S.D. N.Y. 87 B 20142, 87 B 20143, 87 BIn re Texaco Inc. (Bankruptcy) 20144.Olinde v. Texaco (Bankruptcy, Oil Lease Litig.) M.D. La., 96-390Gustafson v. Bridgestone/Firestone, Inc. (Recall Related Litig.) S.D. Ill., 00-612-DRHIn re Bridgestone/Firestone Tires Prods. Liability Litig. S.D. Ind., MDL 1373Gaynoe v. First Union Corp. (Credit Card Litig.) N.C. Super. Ct., 97-CVS-16536Carson v. Daimler Chrysler Corp. (Fuel O-Rings Litig.) W.D. Tenn., 99-2896 TU AProvidian Credit Card Cases Cal. Super. Ct., J.C.C.P. 4085Fields v. Great Spring Waters of Am., Inc. (Bottled Water Litig.) Cal. Super. Ct., 302774Sanders v. Great Spring Waters of Am., Inc. (Bottled Water Cal. Super. Ct., 303549Litig.)Sims v. Allstate Ins. Co. (Diminished Auto Value Litig.) Ill. Cir. Ct., 99-L-393APeterson v. State Farm Mutual Auto. Ins. Co. (Diminished Auto Ill. Cir. Ct., 99-L-394AValue Litig.)Microsoft I-V Cases (Antitrust Litig. Mirroring Justice Dept.) Cal. Super. Ct., J.C.C.P. 4106Westman v. Rogers Family Funeral Home, Inc. (Remains Cal. Super. Ct., C-98-03165Handling Litig.)Rogers v. Clark Equipment Co. Ill. Cir. Ct., 97-L-20Garrett v. Hurley State Bank (Credit Card Litig.) Miss. Cir. Ct., 99-0337Ragoonanan v. Imperial Tobacco Ltd. (Firesafe Cigarette Ont. Super. Ct., 00-CV-183165 CPLitig.)Dietschi v. Am. Home Prods. Corp. (PPA Litig.) W.D. Wash., C01-0306LDimitrios v. CVS, Inc. (PA Act 6 Litig.) Pa. C.P., 99-6209Jones v. Hewlett-Packard Co. (Inkjet Cartridge Litig.) Cal. Super. Ct., 302887In re Tobacco Cases II (California Tobacco Litig.) Cal. Super. Ct., J.C.C.P. 4042 15
  • 131. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 48 of 206Scott v. Blockbuster, Inc (Extended Viewing Fees Litig.) 136th Tex. Jud. Dist., D 162-535Anesthesia Care Assocs. v. Blue Cross of Cal. Cal. Super. Ct., 986677Ting v. AT&T (Mandatory Arbitration Litig.) N.D. Cal., C-01-2969-BZIn re W.R. Grace & Co. (Asbestos Related Bankruptcy) Bankr. D. Del., 01-01139-JJFTalalai v. Cooper Tire & Rubber Co. (Tire Layer Adhesion N.J. Super. Ct.,, MID-L-8839-00 MTLitig.)Kent v. Daimler Chrysler Corp. (Jeep Grand Cherokee Park-to- N.D. Cal., C01-3293-JCSReverse Litig.)Int’l Org. of Migration – German Forced Labour Compensation Geneva, SwitzerlandProgrammeMadsen v. Prudential Federal Savings & Loan (Homeowner’s 3rd Jud. Dist. Ct. Utah, C79-8404Loan Account Litig.)Bryant v. Wyndham Int’l., Inc. (Energy Surcharge Litig.) Cal. Super. Ct., GIC 765441, GIC 777547In re USG Corp. (Asbestos Related Bankruptcy) Bankr. D. Del., 01-02094-RJNThompson v. Metropolitan Life Ins. Co. (Race Related Sales S.D. N.Y., 00-CIV-5071 HBPractices Litig.)Ervin v. Movie Gallery Inc. (Extended Viewing Fees) Tenn. Ch., CV-13007Peters v. First Union Direct Bank (Credit Card Litig.) M.D. Fla., 8:01-CV-958-T-26 TBMNational Socialist Era Compensation Fund Republic of AustriaIn re Baycol Litig. D. Minn., MDL 1431Claims Conference–Jewish Slave Labour Outreach Program German Government InitiativeWells v. Chevy Chase Bank (Credit Card Litig.) Md. Cir. Ct., C-99-000202Walker v. Rite Aid of PA, Inc. (PA Act 6 Litig.) C.P. Pa., 99-6210Myers v. Rite Aid of PA, Inc. (PA Act 6 Litig.) C.P. Pa., 01-2771In re PA Diet Drugs Litig. C.P. Pa., 9709-3162Harp v. Qwest Communications (Mandatory Arbitration Litig.) Ore. Circ. Ct., 0110-10986Tuck v. Whirlpool Corp. & Sears, Roebuck & Co. (Microwave Ind. Cir. Ct., 49C01-0111-CP-002701Recall Litig.)Allison v. AT&T Corp. (Mandatory Arbitration Litig.) 1st Jud. D.C. N.M., D-0101-CV-20020041Kline v. The Progressive Corp. Ill. Cir. Ct., 01-L-6Baker v. Jewel Food Stores, Inc. & Dominick’s Finer Foods, Ill. Cir. Ct., 00-L-9664Inc. (Milk Price Fixing)In re Columbia/HCA Healthcare Corp. (Billing Practices Litig.) M.D. Tenn., MDL 1227Foultz v. Erie Ins. Exchange (Auto Parts Litig.) C.P. Pa., 000203053Soders v. General Motors Corp. (Marketing Initiative C.P. Pa., CI-00-04255Litigation)Nature Guard Cement Roofing Shingles Cases Cal. Super. Ct., J.C.C.P. 4215Curtis v. Hollywood Entm’t Corp. (Additional Rental Charges) Wash. Super. Ct., 01-2-36007-8 SEADefrates v. Hollywood Entm’t Corp. Ill. Cir. Ct., 02L707Pease v. Jasper Wyman & Son, Merrill Blueberry Farms Inc., Me. Super. Ct., CV-00-015Allen’s Blueberry Freezer Inc. & Cherryfield Foods Inc. 16
  • 132. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 49 of 206West v. G&H Seed Co. (Crawfish Farmers Litig.) 27th Jud. D. Ct. La., 99-C-4984-ALinn v. Roto-Rooter Inc. (Miscellaneous Supplies Charge) C.P. Ohio, CV-467403McManus v. Fleetwood Enter., Inc. (RV Brake Litigation) D. Ct. Tex., SA-99-CA-464-FBBaiz v. Mountain View Cemetery (Burial Practices) Cal. Super. Ct., 809869-2Stetser v. TAP Pharm. Prods, Inc. & Abbott Laboratories N.C. Super. Ct., 01-CVS-5268(Lupron Price Litigation)Richison v. Am. Cemwood Corp. (Roofing Durability Cal. Super. Ct., 005532Settlement)Cotten v. Ferman Mgmt. Servs. Corp. 13th Jud. Cir. Fla., 02-08115In re Pittsburgh Corning Corp. (Asbestos Related Bankruptcy) Bankr. W.D. Pa., 00-22876-JKFMostajo v. Coast Nat’l Ins. Co. Cal. Super. Ct., 00 CC 15165Friedman v. Microsoft Corp. (Antitrust Litigation) Ariz. Super. Ct., CV 2000-000722Multinational Outreach - East Germany Property Claims Claims ConferenceDavis v. Am. Home Prods. Corp. (Norplant Contraceptive D. La., 94-11684Litigation)Walker v. Tap Pharmaceutical Prods., Inc. (Lupron Price N.J. Super. Ct., CV CPM-L-682-01Litigation)Munsey v. Cox Communications (Late Fee Litigation) D. La., Sec. 9, 97 19571Gordon v. Microsoft Corp. (Antitrust Litigation) 4th Jud. D. Ct. Minn., 00-5994Clark v. Tap Pharmaceutical Prods., Inc. 5th Dist. App. Ct. Ill., 5-02-0316Fisher v. Virginia Electric & Power Co. E.D. Va., 3:02-CV-431Mantzouris v. Scarritt Motor Group, Inc. M.D. Fla., 8:03-CV-0015-T-30-MSS W. Va. Cir. Ct., 01-C-1530, 1531, 1533, 01-C-Johnson v. Ethicon, Inc. (Product Liability Litigation) 2491 to 2500Schlink v. Edina Realty Title 4th Jud. D. Ct. Minn., 02-018380Tawney v. Columbia Natural Res. (Oil & Gas Lease Litigation) W. Va. Cir. Ct., 03-C-10EWhite v. Washington Mutual, Inc. (Pre-Payment Penalty 4th Jud. D. Ct. Minn., CT 03-1282Litigation)Acacia Media Techs. Corp. v. Cybernet Ventures Inc, (Patent C.D. Cal., SACV03-1803 GLT (Anx)Infringement Litigation)Bardessono v. Ford Motor Co. (15 Passenger Vans) Wash. Super. Ct., 32494Gardner v. Stimson Lumber Co. (Forestex Siding Litigation) Wash. Super. Ct., 00-2-17633-3SEAPoor v. Sprint Corp. (Fiber Optic Cable Litigation) Ill. Cir. Ct., 99-L-421Thibodeau v. Comcast Corp. E.D. Pa., 04-CV-1777Cazenave v. Sheriff Charles C. Foti (Strip Search Litigation) E.D. La., 00-CV-1246National Assoc. of Police Orgs., Inc. v. Second Chance Body Mich. Cir. Ct., 04-8018-NPArmor, Inc. (Bullet Proof Vest Litigation)Nichols v. SmithKline Beecham Corp. (Paxil) E.D. Pa., 00-6222Yacout v. Federal Pacific Electric Co. (Circuit Breaker) N.J. Super. Ct., MID-L-2904-97Lewis v. Bayer AG (Baycol) 1st Jud. Dist. Ct. Pa., 002353In re Educ. Testing Serv. PLT 7-12 Test Scoring Litig. E.D. La., MDL-1643 17
  • 133. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 50 of 206Stefanyshyn v. Consol. Indus. Corp. (Heat Exchanger) Ind. Super. Ct., 79 D 01-9712-CT-59Barnett v. Wal-Mart Stores, Inc. Wash. Super. Ct., 01-2-24553-8 SEAIn re Serzone Prods. Liability Litig. S.D. W. Va., MDL 1477Ford Explorer Cases Cal. Super. Ct., J.C.C.P. 4226 & 4270In re Solutia Inc. (Bankruptcy) S.D. N.Y., 03-17949-PCBIn re Lupron Marketing & Sales Practices Litig. D. Mass., MDL 1430Morris v. Liberty Mutual Fire Ins. Co. D. Okla., CJ-03-714Bowling, et al. v. Pfizer Inc. (Bjork-Shiley Convexo-Concave S.D. Ohio, C-1-91-256Heart Valve)Thibodeaux v. Conoco Philips Co. D. La., 2003-481Morrow v. Conoco Inc. D. La., 2002-3860Tobacco Farmer Transition Program U.S. Dept. of Agric.Perry v. Mastercard Int’l Inc. Ariz. Super. Ct., CV2003-007154Brown v. Credit Suisse First Boston Corp. C.D. La., 02-13738In re Unum Provident Corp. D. Tenn., 1:03-CV-1000In re Ephedra Prods. Liability Litig. D. N.Y., MDL-1598Chesnut v. Progressive Casualty Ins. Co. Ohio C.P., 460971Froeber v. Liberty Mutual Fire Ins. Co. Ore. Cir. Ct., 00C15234Luikart v. Wyeth Am. Home Prods. (Hormone Replacement) W. Va. Cir. Ct., 04-C-127Salkin v. MasterCard Int’l Inc. (Pennsylvania) Pa. C.P., 2648Rolnik v. AT&T Wireless Servs., Inc. N.J. Super. Ct., L-180-04Singleton v. Hornell Brewing Co. Inc. (Arizona Ice Tea) Cal. Super. Ct., BC 288 754Becherer v. Qwest Commc’ns Int’l, Inc. Ill. Cir. Ct., 02-L140Clearview Imaging v. Progressive Consumers Ins. Co. Fla. Cir. Ct., 03-4174Mehl v. Canadian Pacific Railway, Ltd D. N.D., A4-02-009Murray v. IndyMac Bank. F.S.B N.D. Ill., 04 C 7669Gray v. New Hampshire Indemnity Co., Inc. Ark. Cir. Ct., CV-2002-952-2-3George v. Ford Motor Co. M.D. Tenn., 3:04-0783Allen v. Monsanto Co. W. Va. Cir. Ct., 041465Carter v. Monsanto Co. W. Va. Cir. Ct., 00-C-300Carnegie v. Household Int’l, Inc. N. D. Ill., 98-C-2178Daniel v. AON Corp. Ill. Cir. Ct., 99 CH 11893In re Royal Ahold Securities and “ERISA” Litig. D. Md., MDL 1539In re Pharmaceutical Industry Average Wholesale Price Litig. D. Mass., MDL 1456Meckstroth v. Toyota Motor Sales, U.S.A., Inc. 24th Jud. D. Ct. La., 583-318Walton v. Ford Motor Co. Cal. Super. Ct., SCVSS 126737Hill v. State Farm Mutual Auto Ins. Co. Cal. Super. Ct., BC 194491 18
  • 134. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 51 of 206First State Orthopaedics et al. v. Concentra, Inc., et al. E.D. Pa. 2:05-CV-04951-ABSauro v. Murphy Oil USA, Inc. E.D. La., 05-4427In re High Sulfur Content Gasoline Prods. Liability Litig. E.D. La., MDL 1632Homeless Shelter Compensation Program City of New YorkRosenberg v. Academy Collection Service, Inc. E.D. Pa., 04-CV-5585Chapman v. Butler & Hosch, P.A. 2nd Jud. Cir. Fla., 2000-2879In re Vivendi Universal, S.A. Securities Litig. S.D. N.Y., 02-CIV-5571 RJHDesportes v. American General Assurance Co. Ga. Super. Ct., SU-04-CV-3637In re: Propulsid Products Liability Litig. E.D. La., MDL 1355Baxter v. The Attorney General of Canada (Residential School Ont. Super. Ct., 00-CV-192059 CPAAttendees)McNall v. Mastercard Int’l, Inc. (Currency Conversion Fees) 13th Tenn. Jud. Dist. Ct.Lee v. Allstate Ill. Cir. Ct., 03 LK 127Turner v. Murphy Oil USA, Inc. E.D. La., 2:05-CV-04206-EEF-JCWCarter v. North Central Life Ins. Co. Ga. Super. Ct., SU-2006-CV-3764-6Harper v. Equifax E.D. Pa., 2:04-CV-03584-TONBeasley v. Hartford Insurance Co. of the Midwest Ark. Cir. Ct., CV-2005-58-1Springer v. Biomedical Tissue Services, LTD (Human Tissue Ind. Cir. Ct., 1:06-CV-00332-SEB-VSSLitig.)Spence v. Microsoft Corp. (Antitrust Litig.) Wis. Cir. Ct., 00-CV-003042Pennington v. The Coca Cola Co. (Diet Coke) Mo. Cir. Ct., 04-CV-208580Sunderman v. Regeneration Technologies, Inc. (Human Tissue S.D. Ohio, 1:06-CV-075-MHWLitig.)Splater v. Thermal Ease Hydronic Systems, Inc. Wash. Super. Ct., 03-2-33553-3-SEAPeyroux v. The United States of America (New Orleans Levee E.D. La., 06-2317Breech)Chambers v. DaimlerChrysler Corp. (Neon Head Gaskets) N.C. Super. Ct., 01:CVS-1555Ciabattari v. Toyota Motor Sales, U.S.A., Inc. (Sienna Run Flat N.D. Cal., C-05-04289-BZTires)In re Bridgestone Securities Litig. M.D. Tenn., 3:01-CV-0017In re Mutual Funds Investment Litig. (Market Timing) D. Md., MDL 1586Accounting Outsourcing v. Verizon Wireless M.D. La., 03-CV-161Hensley v. Computer Sciences Corp. Ark. Cir. Ct., CV-2005-59-3Peek v. Microsoft Corporation Ark. Cir. Ct., CV-2006-2612Reynolds v. The Hartford Financial Services Group, Inc. D. Ore., CV-01-1529 BRSchwab v. Philip Morris USA, Inc. E.D. N.Y., CV-04-1945Zarebski v. Hartford Insurance Co. of the Midwest Ark. Cir. Ct., CV-2006-409-3In re Parmalat Securities Litig. S.D. N.Y., MDL 1653 (LAK)Beasley v. The Reliable Life Insurance Co. Ark. Cir. Ct., CV-2005-58-1 19
  • 135. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 52 of 206Sweeten v. American Empire Insurance Company Ark. Cir. Ct., 2007-154-3Govt. Employees Hospital Assoc. v. Serono Int., S.A. D. Mass., 06-CA-10613-PBSGunderson v. Focus Healthcare Management, Inc. 14th Jud. D. Ct. La., 2004-2417-DGunderson v. F.A. Richard & Associates, Inc., et al. 14th Jud. D. Ct. La., 2004-2417-DPerez v. Manor Care of Carrollwood 13th Jud. Cir. Fla., 06-00574-EPope v. Manor Care of Carrollwood 13th Jud. Cir. Fla., 06-01451-BWest v. Carfax, Inc. Ohio C.P., 04-CV-1898 (ADL)Hunsucker v. American Standard Ins. Co. of Wisconsin Ark. Cir. Ct., CV-2007-155-3In re Conagra Peanut Butter Products Liability Litig. N.D. Ga., MDL 1845 (TWT)The People of the State of CA v. Universal Life Resources (Cal Cal. Super. Ct., GIC838913DOI v. CIGNA)Burgess v. Farmers Insurance Co., Inc. D. Okla., CJ-2001-292Grays Harbor v. Carrier Corporation W.D. Wash., 05-05437-RBLPerrine v. E.I. Du Pont De Nemours & Co. W. Va. Cir. Ct., 04-C-296-2In re Alstom SA Securities Litig. S.D. N.Y., 03-CV-6595 VMBrookshire Bros. v. Chiquita (Antitrust) S.D. Fla., 05-CIV-21962Hoorman v. SmithKline Beecham Ill. Cir. Ct., 04-L-715Santos v. Government of Guam (Earned Income Tax Credit) D. Guam, 04-00049Johnson v. Progressive Ark. Cir. Ct., CV-2003-513Bond v. American Family Insurance Co. D. Ariz., CV06-01249-PXH-DGCIn re SCOR Holding (Switzerland) AG Litigation (Securities) S.D. N.Y., 04 Civ. 7897Shoukry v. Fisher-Price, Inc. (Toy Safety) S.D. N.Y., 07-CV-7182In re: Guidant Corp. Plantable Defibrillators Prod’s Liab. Litig. D. Minn., MDL 05-1708 (DWF/AJB)Clark v. Pfizer, Inc (Neurontin) C.P. Pa., 9709-3162Angel v. U.S. Tire Recovery (tire fire) W. Va. Cir. Ct., 06-C-855In re TJX Companies Retail Security Breach Litig. D. Mass., MDL 1838Webb v. Liberty Mutual Insurance Co. Ark. Cir. Ct., CV-2007-418-3Shaffer v. Continental Casualty Co. (long term care ins.) C.D. Cal., SACV06-2235-PSGPalace v. DaimlerChrysler (defective Neon head gaskets) Ill. Cir. Ct., 01-CH-13168Beringer v. Certegy Check Services, Inc. (stolen financial data) M.D. Fla., 8:07-cv-1657-T-23TGWLockwood v. Certegy Check Services, Inc. M.D. Fla., 8:07-cv-1434-T-23TGWSherrill v. Progressive Northwestern Ins. Co. 18th D. Ct. Mont., DV-03-220Gunderson v. F.A. Richard & Assocs., Inc. (AIG) 14th Jud. D. Ct. La., 2004-2417-DJones v. Dominion Resources Services, Inc. S.D. W. Va., 2:06-cv-00671Gunderson v. F.A. Richard & Assocs., Inc. (Wal-Mart) 14th Jud. D. Ct. La., 2004-2417-DIn re Trans Union Corp. Privacy Litig. N.D. Ill., MDL 1350Gudo v. The Administrator of the Tulane Ed. Fund La. D. Ct., 2007-C-1959 20
  • 136. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 53 of 206Guidry v. American Public Life Insurance Co. 14th Jud. D. Ct. La., 2008-3465McGee v. Continental Tire North America D. N.J., 2:06-CV-06234 (GEB)Sims v. Rosedale Cemetery Co. W. Va. Cir. Ct., 03-C-506Gunderson v. F.A. Richard & Assocs., Inc. (Amerisafe) 14th Jud. D. Ct. La., 2004-002417In Re Katrina Canal Breaches Consolidated Litig. E.D. La., 05-4182In re Department of Veterans Affairs (VA) Data Theft Litigation D. D.C., MDL 1796Dolen v. ABN AMRO Bank N.V. (callable CD’s) Ill. Cir. Ct., 01-L-454 and 01-L-493Pavlov v. CNA (long term care insurance) N.D. Ohio, 5:07cv2580Steele v. Pergo( flooring products) D. Ore., 07-CV-01493-BROpelousas Trust Authority v. Summit Consulting 27th Jud. D. Ct. La., 07-C-3737-BLittle v. Kia Motors America, Inc. (braking systems) N.J. Super. Ct., UNN-L-0800-01Boone v. City of Philadelphia (prisoner strip search) E.D. Pa., 05-CV-1851In Re Countrywide Customer Data Breach Litig. W. D. Ky., 3:08-md-01998-TBR, MDL 1998Miller v. Basic Research (weight-loss supplement) D. Utah, 2:07-cv-00871-TSGunderson v. F.A. Richard & Assocs., Inc. (Cambridge) 14th Jud. D. Ct. La., 2004-002417Weiner v. Snapple Beverage Corporation S.D. N.Y., No. 07-CV-08742Holk v. Snapple Beverage Corporation D. N.J., No 3:07-CV-03018-MJC-JJHCoyle v. Hornell Brewing Co. (Arizona Iced Tea) D. N.J., No. 08-CV-2797-JBS-JSIn Re: Heartland Data Security Breach Litigation S.D. Tex., No. 4:09-MD-2046, MDL 2046Satterfield v. Simon & Schuster, Inc. (text messaging) N.D. Cal., No. 06-CV-2893 CWSchulte v. Fifth Third Bank (overdraft fees) N.D. Ill., No. 09-CV-06655Trombley v. National City Bank (overdraft fees) D. D.C., No. 1:10-CV-00232Vereen v. Lowe’s Home Centers (defective drywall) Ga. Super. Ct., SU10-CV-2267BMathena v. Webster Bank, N.A. (overdraft fees) D. Conn,.No. 3:10-cv-01448Delandro v. County of Allegheny (prisoner strip search) W.D. Pa., No. 2:06-cv-00927Gunderson v. F.A. Richard & Assocs., Inc. (First Health) 14th Jud. D. Ct. La., 2004-002417Williams v. Hammerman & Gainer, Inc. (Hammerman) 27th Jud. D. Ct. La., No. 11-C-3187-BWilliams v. Hammerman & Gainer, Inc. (Risk Management) 27th Jud. D. Ct. La., No. 11-C-3187-BWilliams v. Hammerman & Gainer, Inc. (SIF Consultants) 27th Jud. D. Ct. La., No. 11-C-3187-BGwiazdowski v. County of Chester (prisoner strip search) E.D. Pa., No. 2:08cv4463Williams v. S.I.F. Consultants (CorVel Corporation) 27th Jud. D. Ct. La., No. 09-C-5244-CIn Re: Checking Account Overdraft Litigation (IBERIABANK) S.D. Fla., MDL No. 2036LaCour v. Whitney Bank (overdraft fees) M.D. Fla., 8:11cv1896Lawson. v. BancorpSouth (overdraft fees) W.D. Ark., 1:12cv1016In Re: Checking Account Overdraft Litigation S.D. Fla., MDL No. 2036(Bank of Oklahoma) 21 Hilsoft-cv-115
  • 137. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 54 of 206 Exhibit 2 to Declaration of Cameron Azari: Economic & Property Damages Notice Plan
  • 138. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 55 of 206 Deepwater Horizon Oil Spill Litigation Economic and Property Damages Settlement Notice Plan©2012 Hilsoft Notifications
  • 139. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 56 of 206 Table of Contents Page1. Introduction 42. Overview/Summary 63. Notice Schedule Flow Chart 124. Target Audience 135. Individual Notice 156. Media Selection 187. Plan Delivery Summary 208. Net Reach 219. Average Frequency of Exposure 2310. Geographic Coverage 2411. Nationwide Publication Plan 2512. Nationwide Publication Details 2613. Nationwide Publication Coverage 2914. Nationwide Publication Circulation 3015. Publication Secondary Reader Data 3116. Nationwide Publication Audience Data 3217. Nationwide Publication Gross Impressions 3318. Trade, Business and Specialty Publications 3419. Local Newspapers 36© 2012 Hilsoft Notifications 2
  • 140. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 57 of 20620. African-American and Vietnamese and Spanish Language Publications 3821. Local Television 4022. TV Dayparts/Programming 4123. TV Rating Points (GRPs) 4224. TV Gross Impressions 4325. Local Radio Programming 4426. Internet Banner Notices 4527. Placing Notices to Be Highly Visible 4628. Informational Release 4729. TV Public Service Announcements 4830. Case Website 4931. Sponsored Search Listings 5032. Notice Design Strategy 5133. Draft Forms of Notice 53Attachment 1 - Drafts of NoticeAttachment 2 – Parade, USA Weekend and American Profile Newspaper ListAttachment 3 – Local Newspapers© 2012 Hilsoft Notifications 3
  • 141. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 58 of 206 1. IntroductionThe “Notice Plan” (or “Plan”) that follows details the dissemination effort that willbe undertaken to provide comprehensive notice to Class Members in connectionwith the proposed Economic and Property Damages Class Action Settlement in Inre: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April20, 2010, MDL No. 2179. The Plan utilizes extensive and appropriate prior classaction notice experience.Two separate class action settlements within the MDL No. 2179 litigation—anEconomic and Property Damages Settlement and a Medical Benefits Settlement—have been proposed related to the Deepwater Horizon Incident. Each settlementcontemplates contemporaneous notice.To prevent confusion over the two class action settlements, the proposed Economicand Property Damages Notice Plan effort highlights that the Court is consideringtwo separate settlements. Print publication notice consists of a single advertisingunit that includes one summary notice that addresses the Economic and PropertyDamages Settlement, and a separate summary notice that addresses the MedicalBenefits Settlement. Broadcast and Internet banner efforts provide the messagethat there is one settlement addressing economic and property damages claims, anda separate settlement addressing medical claims. Finally, one individual notice forthe Economic and Property Damages Settlement will be mailed to all known, likelyClass Members of the Economic and Property Damages Settlement Class, and aseparate individual notice for the Medical Benefits Settlement will be mailed toknown individuals who are likely Class Members of the Medical Benefits Class.To further mitigate potential confusion, the Economic and Property DamagesSettlement and the Medical Benefits Settlement notices will include a commonwebsite address and toll-free number. The content of the website and toll-freenumbers will make clear to visitors/callers that two separate settlements have beenreached, and provide appropriate information about each respective settlement.1Hilsoft Notifications has designed and will implement this Notice Plan if and whenthe Economic and Property Damages Settlement receives Preliminary Approval bythe Court. At the appropriate time Hilsoft may also develop and implementsubsequent notice efforts as agreed to by the parties and/or directed by the Court,1If either settlement is not approved or the two Settlements are approved on substantially different schedules, theNotice content will be adjusted accordingly.© 2012 Hilsoft Notifications 4
  • 142. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 59 of 206including a reminder notice effort in advance of the claim deadline.Hilsoft Notifications’ principals have been recognized as class action noticeexperts by judges, and have specific experience designing and implementing large-scale class action notice plans. Principals Cameron Azari, Esq., Director of LegalNoticing, and Lauran Schultz, Executive Director, have designed the Plan andNotices, and will oversee implementation to successful completion.With experience in more than 200 cases, notices prepared by Hilsoft Notificationshave appeared in 53 languages with distribution in almost every country, territoryand dependency in the world. Judges, including in published decisions, haverecognized and approved notice plans developed by Hilsoft Notifications, whichhave always withstood collateral reviews by other courts and appellate challenges,including to the U.S. Supreme Court.The proposed draft notice documents (the “Notice” or “Notices”) follow theprinciples in the Federal Judicial Center’s (“FJC”) illustrative model notices thatwere written and designed to embody the satisfaction of the plain languagerequirements of Federal Rule of Civil Procedure 23(c)(2). To assist judges andattorneys, in federal as well as state courts, the FJC has posted the notices atwww.fjc.gov.© 2012 Hilsoft Notifications 5
  • 143. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 60 of 206 2. Overview/Summary• Objective. To notify the greatest practicable number of Economic and Property Damages Settlement Class Members (hereinafter “Settlement Class Members” or “Class Members”) and provide them with opportunities to be exposed to the Notice, to see, review, understand, and be reminded about it, and to respond appropriately if they choose.• Imperatives. Key factors guide the dissemination methods needed to achieve a reasonable and effective notice effort: 1. The proposed Economic and Property Damages Settlement has specific geographic boundaries. The majority of Class Members are located within a limited geographic area and the primary thrust of the Notice Plan must be focused there. 2. Even with the defined geographic scope of the Settlement, some Class Members could be located throughout the U.S., including large cities and rural areas. 3. Mailing addresses, compiled from various lists, are available for a portion of the Class. 4. High quality notice methods are needed to convey the importance of information affecting Settlement Class Members’ rights.• Target Audience. The E&PD Settlement Agreement defines the “Class” as: A. Individuals. Unless otherwise specified, all Natural Persons residing in the United States who, at any time between April 20, 2010 and April 16, 2012, lived in, worked in, were offered and accepted work in, owned or leased real or personal property located within, or owned or leased or worked on a vessel harbored or HOME PORTED in the States of Louisiana, Mississippi, or Alabama, the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas, or the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington in the State of Florida, including all adjacent Gulf waters, bays,© 2012 Hilsoft Notifications 6
  • 144. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 61 of 206 estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, Alabama, or those described counties of Texas or Florida (the “GULF COAST AREAS”) (Exhibit 22), or the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas, as specifically shown and described in Exhibit 23 (“SPECIFIED GULF WATERS”), or worked on a vessel in Specified Gulf Waters after April 20, 2009. With respect to SEAFOOD CREW Claims, persons must have worked on a vessel that landed SEAFOOD in the Gulf Coast Areas after April 20, 2009. and B. Entities. All Entities doing business or operating in the Gulf Coast Areas or Specified Gulf Waters that: a) at any time from April 20, 2010 to April 16, 2012, owned, operated, or leased a physical facility in the Gulf Coast Areas or Specified Gulf Waters and (A) sold products in the Gulf Coast Areas or Specified Gulf Waters (1) directly to CONSUMERS or END USERS of those products or (2) to another Entity that sold those products directly to Consumers or End Users of those products, or (B) regularly purchased Seafood harvested from Specified Gulf Waters in order to produce goods for resale; b) are service businesses with one or more full-time employees (including owner-operators) who performed their full-time services while physically present in the Gulf Coast Areas or Specified Gulf Waters at any time from April 20, 2010 to April 16, 2012; or c) owned, operated, or leased a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; or d) owned or leased REAL PROPERTY in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012;© 2012 Hilsoft Notifications 7
  • 145. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 62 of 206 C. Individuals and Entities who meet the geographical descriptions of Sections A or B above are included in the Economic Class only if their Claims meet the descriptions of one or more of the damage categories described in the Settlement Agreement. We further understand that the capitalized terms in the Class Definition have the following meanings: “Entity” an organization or entity, other than a Governmental Organization, operating or having operated for profit or not-for-profit, including a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture or an unincorporated association of any kind or description. “Consumer” means a Natural Person or an Entity who or which buys any product for individual use or consumption and not for manufacture or resale. “End User” means a Natural Person or Entity that buys any product for his, her or its individual use or consumption and not for manufacture or resale. To guide the selection of measured media in reaching unknown Class Members, this Economic and Property Damages Settlement Notice Plan has a primary target audience of: all adults 18 years and older, currently living in the Gulf Coast Areas. To further extend the reach of the Plan to unknown Class Members who do not currently reside in the Gulf Coast Areas, the Plan includes a broad national effort to reach adults 18 years and older across the United States. To verify the notice program’s effectiveness, GfK Mediamark Research & Intelligence, LCC (“MRI”)2 data was studied among all adults aged 18 years and older. This data formed the basis for the national program. Additionally, MRI, Nielsen Media Research and other data sources were studied for adults who live in the Gulf Coast Areas.2 GfK Mediamark Research & Intelligence, LCC (“MRI”) is a leading source of publication readership and productusage data for the communications industry. MRI offers comprehensive demographic, lifestyle, product usage andexposure to all forms of advertising media collected from a single sample. As the leading U.S. supplier ofmultimedia audience research, MRI provides information to magazines, televisions, radio, Internet, and other media,leading national advertisers, and over 450 advertising agencies—including 90 of the top 100 in the United States.MRI’s national syndicated data is widely used by companies as the basis for the majority of the media andmarketing plans that are written for advertised brands in the U.S.© 2012 Hilsoft Notifications 8
  • 146. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 63 of 206• Strategies. Notice will be mailed to known or likely Class Members, compiled from various lists provided by the settling parties and their experts. An extensive schedule of local newspaper, radio, television and Internet placements has been developed to reach Class Members in the Gulf Coast Areas. To reach Class Members across the United States, the schedule includes well-read consumer magazines, a national daily business newspaper, highly trafficked websites and Sunday local newspapers (via newspaper supplements). Although not measurable, notice placements will also appear in trade, business and specialty publications, African-American, Vietnamese and Spanish language publications, and Cajun radio programming. An informational release, television public service announcements (“PSAs”), and case website will provide additional notice exposures.• Delivery. The combined measurable effort will reach at least 95% of adults in the Gulf Coast Areas on average 8.8 times each and an estimated 83% of all U.S. adults an average of 3.8 times each. The “reach” or net reach of a notice program is defined as the percentage of the target audience exposed to a notice net of any duplication among people who may have been exposed more than once. Coverage will be further enhanced by media placements described above for which reach is not measured. The measurable reach and frequency that will be achieved is consistent with other effective court-approved notice programs, and is designed to meet due process requirements.• Notice Tactics. The following notice tactics have been selected to best reach Class Members: 1. Individual Notice. For each name and address of a known, likely Economic and Property Damages Settlement Class Member, a Notice Packet will be mailed via first class mail in a flat envelope. The Notice Packet will include a Cover Letter and Detailed Notice, and is expected to include a color map folio. 2. Consumer Publications. A Summary Notice will appear in twelve leading weekly and monthly consumer publications— two times each in People, Parade and USA Weekend, and once in American Profile, AARP Bulletin, Better Homes and Gardens, National Geographic, Cosmopolitan, Sports Illustrated, Southern Living, People en Espanol, Ebony and Essence, for a total of 16 insertions.© 2012 Hilsoft Notifications 9
  • 147. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 64 of 206 3. Trade, Business and Specialty Publications. One or two double-page spread or full-page insertions in the Wall Street Journal and publications targeted to the industries and activities most likely directly affected by the Deepwater Horizon Incident. 4. Local Newspapers. Four full-page insertions will appear in 364 local newspapers, covering virtually all of Louisiana, Alabama and Mississippi and DMAs3 in included counties of Texas and Florida. 5. African-American, Vietnamese and Spanish language Publications. Three full-page or double-page insertions (where available) in publications targeted to the relevant local communities. 6. Local Television. Approximately 300 adult gross rating points (“GRPs”)4 will air per market in the Gulf Coast Areas (matching the DMAs included in the local newspaper effort) substantially over three weeks in a variety of dayparts and programs on local and cable networks. Some spots may run in a fourth week as necessary. 7. Local Radio Programming. Approximately 180 adult GRPs will air per market in the Gulf Coast Areas (matching the DMAs included in the local television effort) over three weeks on a variety of programming. Additional radio spots will run on “Statenets” targeting rural communities the Gulf Coast Areas. Separate local radio efforts will be targeted to the African-American, Spanish-speaking and Cajun populations where appropriate. 8. Internet Banner Notices. Banner Notices measuring 728 x 90 pixels and 300 x 250 pixels will be placed during a one-month period on national web properties such as 24/7 Real Media (a network that represents over 900 websites), Yahoo!, MSN, AOL, Weather.com and on trade publication websites. In addition, Banner Notices will be placed on local newspaper and television web properties in the Gulf Coast Areas.3 DMA or “Designated Market Area” is a term used by Nielsen Media Research to identify an exclusive geographicarea of counties/parishes in which the home market television stations hold a dominance of total hours viewed.There are 210 DMAs in the U.S.4 One rating point is equal to 1% of a given population. It is necessarily a gross measurement that includesduplicate exposures to the same person.© 2012 Hilsoft Notifications 10
  • 148. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 65 of 206 9. Informational Release. A party-neutral, Court-approved informational release will be issued to approximately 4,200 print and broadcast and 5,500 online press outlets throughout the United States. 10. TV PSAs. A Court-approved television spot will be distributed to over 1,200 television stations throughout the United States. 11. Case Website. A neutral, informational website with an easy to remember domain name will be established where Class Members can obtain additional information about the case and notice documents, including the Detailed Notice.• Message Content. The Notices have been designed to provide a clear, concise, plain language statement of Class Members’ legal rights and options. The Notices alert Class Members that the message may affect them. The summary publication notice is a single advertising unit for both the Economic and Property Damages and the Medical Benefits Settlement. The publication notice includes a summary of the Economic and Property Damages Settlement, and a separate summary of the Medical Benefits Settlement. Broadcast and Internet efforts provide the message that there is one settlement addressing economic and property damages claims, and a separate settlement addressing medical claims. Consistent with our normal practice, all notice documents will undergo a final edit prior to actual mailing and publication for grammatical errors and accuracy. Drafts of the forms of notice are included as Attachment 1.© 2012 Hilsoft Notifications 11
  • 149. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 66 of 206 3. Notice Schedule Flow ChartThe chart below shows a hypothetical schedule. The schedule would begin sometime after Court approval of theNotice Plan. Class members would be provided sufficient time to act upon their rights prior to the opt-out andobjection deadlines. The website will remain operational beyond the flowchart shown, until requested to beterminated.Notice Tactic Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 Week 7 Week 8 Week 9 Week 10Issue Informational ReleaseIndividual Notice MailingIssue TV PSAsLocal NewspapersLocal Television*Local RadioInternet Banner NoticesNational Newspaper InsertsNational Consumer PublicationsTrade, Business, SpecialtyPublicationsNon-English LanguagePublicationsCase Website*Television placements will substantially occur over a 3-week period with the 4th week reserved for “make-goods” and remaininginventory.Note: Print media blocks show when readers first receive publications (the on-sale date). Media selections are subject to change byaddition, deletion, or substitution at the time of placement. Appearance dates may vary within the notice period, based on availability atthe time of placement© 2012 Hilsoft Notifications 12
  • 150. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 67 of 206 4. Target Audience The demographics of the class, including, but not limited to, those most likely to be Class Members.The proposed Economic and Property Damages Settlement has specific geographicboundaries. The majority of the Class will be located within a limited geographicarea in the Gulf Coast Areas (Louisiana, Mississippi and Alabama and portions ofTexas and Florida) and the primary thrust of the Notice Plan must be focused there.Data on adults living in the Gulf Coast Areas was specifically analyzed to identifykey demographic groups which can be used to guide local media selection.Additionally, because the Class definition encompasses people across manydifferent demographic audiences who could reside anywhere in the United States,the notice program includes a significant component designed to reach adults aged18+ across the country.According to MRI, demographic highlights of adults aged 18+ in the Gulf CoastAreas include the following: • 87.4% are over the age of 25 • 72.0% are white • 16.4% are African-American • 70.1% own a home • 66.1% reside in county/parish size A or B5 • 19.4% own a home valued at less than $100,000 • 55.8% are married • 17.6% did not graduate from high school • 50.3% lived at their residence five or more years • 43.7% have a household income of $60,000 or more • 46.4% work full-timeUsing MRI data we can also pinpoint certain key demographics that make up agreater percentage of adults in the Gulf Coast Areas, relative to the general U.S.adult population. For instance, adults in the Gulf Coast Areas are: • 27.6% more likely to live in a rural county/parish • 51.2% more likely to own a home worth less than $100,000 • 41.4% more likely to be African-American5“County/parish size A” is defined as highly urbanized areas and belong to the 21 largest Metropolitan StatisticalAreas. The combined counties/parishes contain 40% of the United States households. “County/parish size B” isdefined as counties/parishes not defined as A counties/parishes that have more than 85,000 households. Thecombined counties/parishes contain 30% of United States households.© 2012 Hilsoft Notifications 13
  • 151. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 68 of 206 • 11.7% more likely to work in a natural resources or construction field • 28.1% more likely to have not graduated from high school© 2012 Hilsoft Notifications 14
  • 152. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 69 of 206 5. Individual Notice Reaches Class Members directly with notice.Postal Mailed NoticeFor each unique name and address of a known, likely Economic and PropertyDamages Settlement Class Member, a Notice Packet will be mailed via first classmail in a flat envelope. The Notice Packet will include a Cover Letter and DetailedNotice, and is expected to include a color map folio. Potential Class Members willbe directed to the settlement website and the toll-free number for detailedinformation on how to file a Claim, to access Claim Forms, and to seek assistanceas needed with filing a claim.The mailing list has been compiled from multiple lists of known, likely SettlementClass Members. The Notice Packet will also be sent to known attorneys, otherthan Class Counsel, who represent likely Class Members. This list will beassembled from sources including the following: • Short Form Joinders filed in MDL 2179; • The MDL 2179 Plaintiffs’ list; • Gulf Coast Claims Facility (“GCCF”) list of non-medical claimants and those who requested information about the GCCF process and provided contact information to the GCCF6; • BP Claims Facility list of claimants who filed claims under the Oil Pollution Act of 1990 prior to the creation of the GCCF; • Vessels of Opportunity (“VoO”) lists and lists of VoO contractors who subcontracted out to other vessels; and • Lists of ascertainable Coastal Real Property owners, Wetlands Real Property owners and Real Property Sales owners who are presumptively members the Settlement Class and do not have to demonstrate a loss in order to be eligible to file a claim.Prior to mailing, all addresses will be checked against the National Change ofAddress (“NCOA”) database maintained by the United States Postal Service(“USPS”).7 If a record is returned by NCOA as invalid, the administrator will6 An Economic and Property Damage Settlement Notice packet will be mailed to all names and addresses in theGCCF database that do not unambiguously relate only to a medical claim. (Individuals who unambiguously relateonly to a medical claim will be mailed a Medical Benefits Settlement Notice packet). For any record in the GCCFdatabase where there is any ambiguity as to the subject matter of that individual’s claim or request for furtherinformation, an Economic and Property Damage Notice Packet will be mailed.7 The NCOA database contains records of all permanent changes of address submissions received by the USPS forthe last four years. The USPS makes this data available to mailing firms and lists submitted to it are automatically© 2012 Hilsoft Notifications 15
  • 153. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 70 of 206update the address through third-party address search services and remail asappropriate. Notices returned as undeliverable will be remailed to any new addressavailable through postal service information, for example, to the address providedby the postal service on returned pieces for which the automatic forwarding orderhas expired, but which is still during the period in which the postal service returnsthe piece with the address indicated, or to better addresses that may be found afterreasonable, additional third-party source lookups. Upon successfully locatingbetter addresses, Notices will be promptly remailed on an ongoing basis.Additionally, the Notice Packet will be mailed to all persons who request one viathe toll-free phone number maintained by the Economic and Property Damagesclaims administrator.Email NoticeAn Email Notice will be sent to known, likely Settlement Class Members forwhom only a name and email address is known and no other means of determininga physical address are available. Additionally, an Email Notice will be sent toknown, likely Settlement Class Members for whom a physical address and anemail address are available (email notice sent in addition to postal mail). TheEmail Notice will include substantially the same content as the text of thePublication Notice that is specific to the E&PD Settlement, and will contain anembedded link to the notice website where the Detailed Notice and othersettlement information can be accessed.The Email Notice will be provided using an embedded HTML text format. Thisformat will provide text that is easy to read without graphics, tables, images andother elements that would increase the likelihood that the message is blocked byInternet Service Providers (ISP’s) and/or SPAM filters. Prior to transmitting theEmail Notice, the Claims Administrator will notify major ISPs about the schedulednotification effort in order to get these messages “white-listed” for delivery torecipient mailboxes.Each Summary Email Notice will be transmitted with a unique message identifier.If the receiving email server cannot deliver the message, a “bounce code” shouldbe returned to the sending server along with the unique message identifier. For anyEmail Notice for which a bounce code is received indicating that the message wasundeliverable, at least two additional attempts will be made to deliver the Noticeby email.updated with any reported move based on a comparison with the person’s name and known address.© 2012 Hilsoft Notifications 16
  • 154. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 71 of 206The proposed Cover Letter, Detailed Notice and Email Notice are part of the noticedocuments included in Attachment 1.© 2012 Hilsoft Notifications 17
  • 155. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 72 of 206 6. Media Selection The media vehicles that will best reach Class Members in this particular notice program.In addition to the Individual Notice mailing to potential Class Members, acomprehensive national and regional multi-media effort in virtually every form ofmedia has been selected to effectively deliver a clear message to Economic andProperty Damages Settlement Class Members. Newspapers and print publicationsreach older audiences. Television and radio effectively reach less-affluentaudiences, and especially African-American and Spanish speaking audiences.Younger audiences will be targeted through the Internet effort. The businessaudience is targeted with business and trade publications. Non-English speakingaudiences will be targeted with print publications in identified languages and viaradio. We have reviewed the merits of all forms of media and, based on ouranalysis, our media selection allows:• A large majority of Class Members to be reached by the measurable paid print, television, radio and online media alone (at least 95% of adults in the Gulf Coast Areas and an estimated 83% of adults across the United States).• Multiple opportunities for Class Members to see the message through overlapping reach of the different notice methods.• “Noticeable” Publication Notices in leading consumer magazines, daily newspapers and other publications that will allow readers to have a written record and the ability to refer back to the Notice, pass it on to others, and easily respond via the website or toll-free number.• Notice placements in approximately 2,191 newspapers nationwide via Parade, USA Weekend and American Profile, which are inserted in the weekend editions of newspapers with distribution in large cities and small towns.• High-quality Television Notices that will allow Settlement Class Members to be alerted to key information and to call or visit the website for additional information.• Radio Notices appearing on general interest radio stations and on African- American, Spanish language and Cajun stations in the Gulf Coast Areas.• Publication Notice in appropriate business and trade publications targeting industries likely to have been affected by the Deepwater Horizon Incident.© 2012 Hilsoft Notifications 18
  • 156. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 73 of 206• Publication Notice in appropriate foreign language publications covering major ethnic groups identified as having a presence in the Gulf Coast Areas.• Extended reach via rotating Banner Notices on a variety of web properties.• The broadest, most inclusive national geographic coverage as well as targeted local coverage of the Gulf Coast Areas, ensuring that Settlement Class Members are not excluded based on where they choose to live.• The broadest, most-inclusive demographic coverage, ensuring that Class Members are effectively reached through notice placements in a variety of cultural and trade publications as well as television and radio programs focusing on different target segments.© 2012 Hilsoft Notifications 19
  • 157. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 74 of 206 7. Plan Delivery Summary National Consumer Publications 13 Newspapers carrying Notices (via supplements): ≈2,191 Gulf Coast Areas Local Newspapers 364 Trade Publications 34 Foreign Language and African-American Publications 46 Total Print Insertions 5,421 Local Television Adult GRPs per Market ≈300 Total Radio Adult GRPs per Market ≈180 Internet Banner Impressions ≈115 million Estimated Net % Reached – National Plan 83.0% Avg. Frequency of Exposure – National 3.8 times Estimated Net % Reached – Local Plan >95.0% Avg. Frequency of Exposure – Local 8.8 times Estimated Net Audience - National 211,000,000 Estimated Gross Impressions* - National 931,000,000Source: 2011 MRI Doublebase Study, ABC and publication circulation statements.*Total exposures to notice among all those exposed, including repeat exposures.© 2012 Hilsoft Notifications 20
  • 158. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 75 of 206 8. Net Reach Total different persons who open or read a publication containing a notice.We employ industry-standard computer software, which uses the latest readershipdata, to factor out the duplicate persons reached by the different and overlappingaudiences on a notice schedule to yield total net persons reached. The proposedmeasurable print and television, radio and online efforts are estimated to reach: % Reached, Net Target of Duplication Adults in the Gulf Coast Areas aged 95.0% 18+ All U.S. adults aged 18+ 83.0% Source: 2011MRI Doublebase Study, Nielsen, Arbitron, comScore.Reach will be further enhanced by the Individual Mailed Notice effort, noticeplacements in trade, business and specialty publications, African-American,Vietnamese and Spanish language publications, and the informational release, TVPSAs, and case website.The audience data used to determine these results are the same data used by mediaprofessionals to guide the billions of dollars of advertising we see today. Thestatistics and sources we cite are uniformly relied upon in our field: Audit Bureauof Circulations (“ABC”) data has been relied upon since 19148; 90-100% of mediadirectors use reach and frequency planning9; all of the leading advertising andcommunications textbooks cite the need to use reach and frequency planning10; and8 Established in 1914, ABC is a non-profit cooperative formed by media, advertisers, and advertising agencies toaudit the paid circulation statements of magazines and newspapers. ABC is the leading third-party auditingorganization in the U.S. It is the industry’s leading, neutral source for documentation on the actual distribution ofnewspapers printed and bought by readers. Widely accepted throughout the industry, it certifies over 3,000publications, categorized by metro areas, region, and other geographical divisions. Its publication audits areconducted in accordance with rules established by its Board of Directors. These rules govern not only how auditsare conducted, but also how publishers report their circulation figures. ABC’s Board of Directors is comprised ofrepresentatives from the publishing and advertising communities.9 See generally Peter B. Turk, Effective Frequency Report: Its Use And Evaluation By Major Agency MediaDepartment Executives, 28 J. ADVERTISING RES. 56 (1988); Peggy J. Kreshel et al., How Leading AdvertisingAgencies Perceive Effective Reach and Frequency, 14 J. ADVERTISING 32 (1985).10 Textbook sources that have identified the need for reach and frequency for years include: JACK S. SISSORS & JIMSURMANEK, ADVERTISING MEDIA PLANNING, 57-72 (2d ed. 1982); KENT M. LANCASTER & HELEN E. KATZ,STRATEGIC MEDIA PLANNING 120-156 (1989); DONALD W. JUGENHEIMER & PETER B. TURK, ADVERTISING MEDIA123-126 (1980); JACK Z. SISSORS & LINCOLN BUMBA, ADVERTISING MEDIA PLANNING 93-122 (4th ed. 1993); JIMSURMANEK, INTRODUCTION TO ADVERTISING MEDIA: RESEARCH, PLANNING, AND BUYING 106-187 (1993).© 2012 Hilsoft Notifications 21
  • 159. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 76 of 206a leading treatise says it must be used:11 “In order to obtain this essentialinformation, we must use the statistics known as reach and frequency.” Ninety ofthe top one hundred media firms use MRI data, which has a 95% confidenceinterval; and at least 3,000 media firms in 25 different countries use mediaplanning software for reach and frequency planning.12 Online media planning datais provided by comScore, Inc.1311 AMERICAN ADVERTISING AGENCY ASSOCIATION, GUIDE TO MEDIA RESEARCH 25 (1987), revised 1993.12 For example, Telmar is the world’s leading supplier of media planning software and support services. Over 3,000users in 25 countries, including 95% of the world’s top agencies, use Telmar systems for media and marketingplanning tools, including reach and frequency planning functions. Established in 1968, Telmar was the firstcompany to provide media planning systems on a syndicated basis.13 comScore, Inc.is a global leader in measuring the digital world and a preferred source of digital marketingintelligence. In an independent survey of 800 of the most influential publishers, advertising agencies andadvertisers conducted by William Blair & Company in January 2009, comScore was rated the “most preferredonline audience measurement service” by 50% of respondents, a full 25 points ahead of its nearest competitor.© 2012 Hilsoft Notifications 22
  • 160. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 77 of 206 9. Average Frequency of Exposure Average number of times that each different person reached will have an opportunity to view a vehicle containing a notice placement.This Notice Plan is intended to provide Class Members with the best practicableopportunity to view and understand the Notice and their rights, including their rightto file a claim, if desired. A by-product of the media vehicles necessary for a broadnet reach is multiple exposures to notice from overlapping audience coverage.This Notice Plan relies upon modern-style, audience-documented media coverageas reported herein, and provides a higher frequency of exposure than would a directmail notice program that sends one notice, one time, to a Class Member.14 Theaverage frequency of exposure resulting from the proposed Notice Program is asfollows: Target Average Frequency of Exposure Adults in the Gulf aged 18+ 8.8 All U.S. adults aged 18+ 3.8 Source: 2011 MRI Doublebase Study.The frequency of exposure will be further enhanced by the Individual MailedNotice effort, notice placements in trade, business and specialty publications,African-American , Vietnamese and Spanish language publications, informationalrelease, TV PSAs, and case website.14 The reach achievable through direct mail notice programs varies widely depending on the accuracy andcomprehensiveness of class member mailing lists.© 2012 Hilsoft Notifications 23
  • 161. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 78 of 206 10. Geographic Coverage Ensuring that Class Members are not excluded simply because of where they live.The notice effort covers the entire United States with specific focus on the states ofLouisiana, Mississippi and Alabama and the enumerated counties in Texas andFlorida. Selections of local media markets were informed by these boundaries,with local media coverage extending beyond the actual borders where appropriate.• The consumer publications have distribution and/or subscribers throughout the U.S., as supported by the detailed ABC statements for each publication.• Parade, USA Weekend and American Profile are distributed within nearly 2,191 newspapers nationwide, covering large markets as well as reaching deep into small towns. A listing of the newspapers that contain Parade, USA Weekend and American Profile is attached as Attachment 2.• The television and radio airings will result in the overall schedule being available to Class Members in Louisiana, Mississippi, Alabama and portions of Texas and Florida.• Notice placements in local newspapers targeting the Gulf Coast Areas with targeted coverage to Settlement Class Members residing in the Economic and Property Damages Settlement “Zones.” Additionally, the recommended consumer publications offer spill-over circulation into these areas.• Notice placements in trade, business and specialty publications extend reach to targeted industries throughout the U.S.• The Internet Banner Notices and case website allow access to the Notice regardless of geography.• The informational release and television PSAs will broaden the geographic coverage further.Accordingly, the Notice is designed to reach Class Members regardless of wherethey choose to live.© 2012 Hilsoft Notifications 24
  • 162. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 79 of 206 11. Nationwide Publication Plan The national newspapers and consumer publications in which the notice will appear. The Notice Plan includes multiple notice placements in 13 leading weekly and monthly publications. Notices will appear twice in the national newspaper supplements Parade and USA Weekend and once in American Profile. Combined, these publications appear in over 2,191 Sunday newspapers nationwide. Notices will appear twice in People, and once in Better Homes and Gardens, AARP Bulletin, National Geographic, Cosmopolitan, Sports Illustrated, Southern Living, People en Espanol, Ebony and Essence, for a total of 16 insertions. The selected publications cover all demographic groups, specifically targeting men’s and women’s publications, magazines aimed at older demographic segments, Spanish- speaking readers, and publications specifically targeting the African-American community. Overall Notice Econ/PropertyPublication Issuance Size Notice Content # of InsertionsPeople Weekly Dbl-Page Spread Full Page 2Parade Weekly Dbl-Page Spread Full Page 2USA Weekend Weekly Dbl-Page Spread Full Page 2American Profile Weekly Dbl-Page Spread Full Page 1Better Homes and Monthly Dbl-Page Spread Full Page 1GardensAARP Bulletin 10x/year Dbl-Page Spread Full Page 1National Geographic Monthly Dbl-Page Spread Full Page 1Cosmopolitan Monthly Dbl-Page Spread Full Page 1Sports Illustrated Monthly Dbl-Page Spread Full Page 1Southern Living Monthly Dbl-Page Spread Full Page 1People en Espanol 10x/year Dbl-Page Spread Full Page 1Ebony Monthly Dbl-Page Spread Full Page 1Essence Monthly Dbl-Page Spread Full Page 1TOTAL 16 © 2012 Hilsoft Notifications 25
  • 163. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 80 of 206 12. Nationwide Publication Details A summary of facts on the consumer publications in which the notice will appear. Publication Facts Parade • Weekly national newspaper supplement covering family, food, health, current events and entertainment. • Provides the single largest readership of any publication. • Provides a broad demographic readership and geographic coverage. • Carried in approximately 522 papers throughout the U.S. • Planned notice size: Double-Page Spread • Planned insertions: 2x USA Weekend • Weekly national newspaper supplement covering family, food, health, current events and entertainment. • Readership ranks 2nd among adults 18+ • Provides a broad demographic readership and geographic coverage. • Carried in approximately 686 papers throughout the U.S. • Planned notice size: Double-Page Spread • Planned insertions: 2x American Profile • Weekly national newspaper supplement covering family, food, health, current events and entertainment. • Provides a broad demographic readership and geographic coverage. • Carried in approximately 1,350 papers throughout the U.S. • Planned notice size: Double-Page Spread • Planned insertions: 1x People • Weekly entertainment magazine featuring celebrity news, biographies, and gossip. • Readership ranks 3rd among adults 18+ • Provides a large number of pass along readers. • Planned notice size: Double-Page Spread • Planned insertions: 2x© 2012 Hilsoft Notifications 26
  • 164. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 81 of 206 Better Homes and • Monthly national magazine covering, lifestyle, home Gardens and garden trends and remodeling, health and food. • Readership ranks 4th among adults 18+ • Planned notice size: Double-Page Spread • Planned insertions: 1x National • Monthly publications featuring photos, maps and Geographic articles relating to animals, the environment, cultures and history around the world. • Readership ranks 6th among adults 18+ • Planned notice size: Double-Page Spread • Planned insertions: 1x AARP Bulletin • 10x/year publication targeting mature adults featuring the latest news and information on health, social security, Medicare, politics and more. • Readership ranks 7th among adults 18+ • Planned notice size: Double-Page Spread • Planned insertions: 1x Cosmopolitan • Monthly female targeted magazine featuring celebrity news, health, relationship and style advice. • Planned notice size: Double-Page Spread • Planned insertions: 1x Sports Illustrated • Monthly sports magazine covering sports news, photos, scores, columns and expert analysis. • Planned notice size: Double-Page Spread • Planned insertions: 1x Southern Living • Monthly magazine covering Southern culture, recipes, travel and events. • Planned notice size: Double-Page Spread • Planned insertions: 1x Ebony • Monthly magazine covering African-American culture, arts, health, travel, politics and lifestyle. • Planned notice size: Double-Page Spread • Planned insertions: 1x Essence • Monthly magazine covering African-American culture, arts, health, travel, love and lifestyle. • Planned notice size: Double-Page Spread • Planned insertions: 1x© 2012 Hilsoft Notifications 27
  • 165. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 82 of 206 People en Espanol • 10x/year entertainment magazine featuring celebrity news, biographies, and gossip in Spanish. • Planned notice size: Double-Page Spread • Planned insertions: 1x© 2012 Hilsoft Notifications 28
  • 166. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 83 of 206 13. Nationwide Publication Coverage The size of the audience as a percent of the demographic base (reach).The selected publications include the top four in the country and 6 of the top 7, aswell as publications that extend reach among various demographic segments. Coverage among U.S. Coverage Publication Adults Rank Parade 30.37% 1 USA Weekend 18.30% 2 People 19.87% 3 Better Homes and Gardens 17.37% 4 National Geographic 13.95% 6 AARP Bulletin 13.02% 7 American Profile 11.40%* 9 Sports Illustrated 9.17% 13 Cosmopolitan 8.11% 17 Southern Living 6.89% 19 Ebony 4.60% 44 Essence 3.51% 57 People en Espanol 2.94% 81 Source: 2011 MRI Doublebase Study. Read As: An insertion in Parade reaches 30.37% of adults 18+. * American Profile is not a measured publication in MRI’s most recent Doublebase survey. Reach percentage reported above is based on publisher’s estimates.© 2012 Hilsoft Notifications 29
  • 167. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 84 of 206 14. Nationwide Publication Circulation Total number of copies sold through all channels (subscription, newsstand)The selected publications include some of the largest circulating publications in thecountry. Combined, they provide a total circulation of over 114 million. Publication Total Circulation Parade 33,000,000 USA Weekend 22,600,000 American Profile 10,000,000 People 3,450,000 Better Homes and Gardens 7,663,198 Southern Living 2,800,000 National Geographic 4,400,000 AARP Bulletin 22,000,000 Cosmopolitan 3,032,000 Sports Illustrated 3,150,000 Ebony 1,250,000 Essence 1,050,000 People en Espanol 540,000 TOTAL 114,935,198 Source: ABC audit and publisher’s statements.© 2012 Hilsoft Notifications 30
  • 168. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 85 of 206 15. Publication Secondary Reader Data Secondary or ‘pass-along’ readers of a publication.Based on MRI readership data, we know that more readers than just those whopurchase or otherwise receive circulated issues actually open or read thepublication. Many secondary readers see the Notice away from home: forexample, at a subscriber’s house; at a doctor’s office; in an airport; on an airplane;in the reception area of a company; passed around by co-workers at the place ofemployment; etc. Exposure in a different environment can increase attentivenessand response potential. It is also beneficial that readership tends to build over aperiod of time following the publication date. This is evidence that issues can bereferred to at any time, thereby providing readers with a longer, sustainedopportunity to be exposed to the Notice.The following calculations set forth the average number of readers-per-copy ofeach of the selected publications: Publication Readers Per Copy Parade 2.10 USA Weekend 1.85 American Profile 2.60 People 13.14 Better Homes and Gardens 5.17 Southern Living 5.62 National Geographic 7.23 AARP Bulletin 1.35 Cosmopolitan 6.95 Sports Illustrated 6.64 Ebony 8.39 Essence 6.90 People en Espanol 12.42 Source: 2011 MRI Doublebase Study audience numbers and ABC statements.© 2012 Hilsoft Notifications 31
  • 169. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 86 of 206 16. Nationwide Publication Audience Data Total different persons opening or reading a publication.The following outlines the total Adult audience (readership) for one insertion ineach of the selected publications. The total audience is based on actual MRI in-depth interview data that tell us how many persons “Opened or Read” apublication. Publication Total Adult Audience Parade 69,278,000 USA Weekend 41,747,000 American Profile 26,000,000 People 45,318,000 Better Homes and Gardens 39,625,000 Southern Living 15,722,000 National Geographic 31,813,000 AARP Bulletin 29,700,000 Cosmopolitan 21,072,000 Sports Illustrated 20,926,000 Ebony 10,482,000 Essence 7,245,000 People en Espanol 6,708,000 Source: 2011 MRI Doublebase Study.© 2012 Hilsoft Notifications 32
  • 170. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 87 of 20617. Nationwide Publication Gross Impressions Total number of times any person opens or reads publications containing notice placements.Adults will be exposed to the Notice through the publication effort alone more than521 million times during the notice period. This includes the same reader morethan once, because readers of one publication read other publications as well. Thisduplication is factored out by the net reach analysis explained earlier. Publication Insertions Adult Impressions Parade 2 138,556,000 USA Weekend 2 83,494,000 American Profile 1 26,000,000 People 2 90,636,000 Better Homes and Gardens 1 39,625,000 Southern Living 1 15,722,000 National Geographic 1 31,813,000 AARP Bulletin 1 29,700,000 Cosmopolitan 1 21,072,000 Sports Illustrated 1 20,926,000 Ebony 1 10,482,000 Essence 1 7,245,000 People en Espanol 1 6,708,000 Total 521,979,000Source: 2011 MRI Doublebase Study.© 2012 Hilsoft Notifications 33
  • 171. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 88 of 206 18. Trade, Business and Specialty Publications The trade and business publications in which the notice will appear. The Notice will appear once or twice as appropriate in 34 publications targeted to the industries and activities most likely to have been directly affected by the Deepwater Horizon Incident. The Selected publications, which include the national edition of the Wall Street Journal, have a combined circulation of over 5 million. The following provides circulation data for the selected Trade, Business and Specialty publications: # ofPublication Distribution Frequency Insertions CirculationBass Master National 10x/year 1 521,397Conde Nast Traveler National Monthly 1 816,066Florida Sportsman National Monthly 2 76,194GAFF National bi-monthly 1 280,000Game and Fish National Monthly 1 415,000Gulfcoast Business Review SW Florida Weekly 2 14,000Gulfscapes Magazine Gulf Coast Quarterly 1 40,000Gulfshore Business Southwest Florida Monthly 2 31,942Marina Dock Age National 8x yearly 1 16,141Marine Log Global Monthly 2 31,619Maritime Executive Global bi-monthly 1 24,904National Fisherman National Monthly 2 30,076Offshore Global Monthly 2 44,546Recommend Magazine National Monthly 2 48,810Saltwater Sportsman National 10x/year 1 136,238Seafood Business National Monthly 2 14,000Sport Fishing National 9x/year 1 110,406Sunbelt Food Service Southern States Monthly 2 27,826Texas Monthly National Monthly 2 300,000Texas Saltwater Fishing Texas Monthly 2 40,000The Shelby Report of the Southeast SE Monthly 2 16,202The Shelby Report of the Southwest SW Monthly 2 15,934Travel Agent Magazine Global Bi-weekly 2 1,812Travel Weekly National Weekly 2 38,000Vacation Agent Magazine National Monthly 2 31,399Well Service National bi-monthly 1 10,000Louisiana Sportsman Louisiana Monthly 2 35,000Mississippi Sportsman Mississippi Monthly 2 9,500New Orleans Magazine New Orleans Monthly 2 34,241New Orleans CityBusiness New Orleans Weekly 2 20,150Louisiana Life Louisiana bi-monthly 1 40,000South Louisiana BusinessNews Louisiana Weekly 2 10,000 © 2012 Hilsoft Notifications 34
  • 172. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 89 of 206Offbeat Louisiana Monthly 2 36,626Wall Street Journal National Daily 1 2,117,796Total 56 5,435,825 © 2012 Hilsoft Notifications 35
  • 173. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 90 of 206 19. Local Newspapers The newspapers in the Gulf Coast Areas in which the notice will appear.The Economic and Property Damages Notice Plan includes daily and weeklynewspapers covering each of the Designated Marketing Areas (“DMAs”) in whichthe largest population center within each respective DMA is part of the definedGulf Coast Areas. DMAs represent a geographic area defined by Nielsen MediaResearch Company as a group of counties/parishes that make up a particulartelevision market.The “Gulf Coast Areas” include the States of Louisiana, Mississippi, and Alabama;the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas;and the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia,Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson,Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, SantaRosa, Sarasota, Taylor, Wakulla, Walton, Washington in the State of Florida.These 26 individual DMAs have been used to establish the geographic scope forthe local portion of the media plan. They are as follows: • Houston • Miami-Ft. • Shreveport • Beaumont-Port Lauderdale • Jackson, Ms Arthur • Tallahassee- • Columbus- • New Orleans Thomasville Tupelo-West • Lake Charles • Gainesville Point • Lafayette, LA • Tampa-St. • Greenwood- • Baton Rouge Petersburg- Greenville • Biloxi-Gulfport Sarasota • Meridian • Mobile- • Ft. Myers- • Birmingham Pensacola-Ft. Naples (Anniston and Walton • Panama City Tuscaloosa) • Montgomery- • Hattiesburg- • Huntsville- Selma Laurel Decatur (FL) • Dothan • Alexandria, LA • Monroe-El DoradoFor the Local Newspaper Notice, these 26 DMAs ringing the Gulf Coast Areas willbe covered by a total of 347 individual, local newspapers.© 2012 Hilsoft Notifications 36
  • 174. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 91 of 206The Notice will run in an additional 17 newspapers in the Memphis (12), Atlanta(1) and Columbus (4) DMAs. These three DMAs lie predominately outside theClass geography, but do have small areas carved into the states of Mississippi(Memphis DMA) and Alabama (Atlanta and Columbus DMAs). It is these smallareas that are covered by the 17 additional newspapers. Including these insertions,the Local Newspaper Notice will run in a total of 364 individual newspapers.The Notice will appear 4 times as a full-page ad unit in each newspaper—twice onSunday and twice on a weekday in daily newspapers and over 4 successive weeksin weekly newspapers for a total of 1,456 insertions. The selected newspapershave a combined circulation of over 8 million. In most instances, the Notice willappear a fifth or sixth time in each local newspaper via the planned insertions inthe nationwide newspaper inserts (Parade, USA Weekend and American Profile).When this occurs, the Notice will appear on successive Sundays with the weekdayinsertion in-between the two Local Newspaper Sunday insertions.The list of selected local newspapers is included as Attachment 3.© 2012 Hilsoft Notifications 37
  • 175. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 92 of 206 20. African-American, Vietnamese and Spanish Language Publications In order to target certain communities affected by the Deepwater Horizon Incident in mediums culturally appropriate to them, the Notice will appear as a double page spread or full-page ad unit 3 times in selected daily and weekly publications and 1 time in selected monthly publications covering the African-American, Vietnamese and Spanish language populations in the Gulf Coast Areas. The Notice will be translated into Vietnamese and Spanish where appropriate. The 46 selected publications have a combined circulation of over 1.8 million. The following provides circulation data for the African-American, Vietnamese and Spanish language publications: # ofPublication Distribution Language Insertions CirculationAfrican American News & Houston English 3 250,000IssuesAlexandria News Weekly Alexandria English 3 5,000Baton Rouge Weekly Press Baton Rouge Spanish 3 7,500Birmingham Times Birmingham/Anniston/Tusc. Spanish 3 16,500Centro Tampa (formerly Tampa/St. Petersburg Spanish 3 42,000Centro Mi Diario)Community Voice Ft. Myers/Naples Spanish 3 12,000Data News Weekly New Orleans Spanish 3 25,000Dep Weekly Magazine Houston Spanish 3 10,000Diario Las Americas Miami/Ft. Lauderdale Spanish 3 35,095El Nuevo Herald - Sunday Miami/Ft. Lauderdale English 3 84,972EditionEl Perico Beaumont/Port Arthur English 3 26,400El Sentinel (Ft. Miami/Ft. Lauderdale Spanish 3 125,000Lauderdale/Miami)El Sol De La Florida Miami/Ft. Lauderdale English 1 60,000El Tiempo New Orleans New Orleans English 1 20,000Florida Sentinel Bulletin Tampa/St. Petersburg English 3 23,000Forward Times Houston English 3 64,580Houston Defender Houston English 3 20,215Jackson Advocate Jackson, MS Spanish 3 8,000Jambalaya News New Orleans English 3 15,000La Gaceta Tampa/St. Petersburg English 3 18,000La Informacion Houston Bilingual 3 100,000La Noticia de Mississippi Jackson, MS Spanish 3 5,000La Subasta Houston (10 Houston Bilingual 3 163,875 © 2012 Hilsoft Notifications 38
  • 176. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 93 of 206Zones)La Voz De Houston Houston English 3 100,000Latino News Birmingham/Anniston/Tusc. English 3 12,000Louisiana Weekly New Orleans English 3 6,500Miami Times Miami/Ft. Lauderdale Bilingual 3 25,000Mississippi Link Jackson, MS Bilingual 3 16,404Monroe Dispatch Monroe/El Dorado Spanish 3 12,000Monroe Free Press Monroe/El Dorado Spanish 3 15,000Montgomery-Tuskegee Montgomery/Selma Spanish 3 5,000TimesNew Orleans Tribune New Orleans English 1 20,000Nuevos Ecos Ft. Myers/Naples English 3 20,000Paisano Birmingham/Anniston/Tusc. English 3 9,000 Mobile/Pensacola/Ft. Walton Spanish 3 38,000Pensacola Voice BeachRio Grande Valley Hispanic Harlingen/Weslaco/ English 3 108,218Newspaper Network Brownsville/McAllenRumbo (Houston) Houston Bilingual 3 52,000Saigon Nho New Orleans Spanish 3 5,000Semana Houston Vietnamese 3 145,000Shreveport Sun Shreveport Spanish 3 4,900Siete Dias (7 Dias) Tampa/St. Petersburg English 3 22,000South Florida Times Miami/Ft. Lauderdale Spanish 3 26,000(formerly Broward Times)Thuong Mai Houston Vietnamese 3 42,000Viet Bao Weekly - Houston Houston Vietnamese 3 25,000EditionVietnam Moi News Houston Vietnamese 3 20,000Weekly Challenger Tampa/St. Petersburg English 3 10,000Total 132 1,876,159 © 2012 Hilsoft Notifications 39
  • 177. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 94 of 206 21. Local TelevisionMainstream television is a high-reach medium providing exposure to affectedpeople regardless of where they reside (i.e. rural areas, urban areas, etc.).30-second units will appear on local broadcast and cable television as appropriatein the 26 DMAs identified in section 19. It is estimated that the local televisionNotice will generate approximately 300 “GRPs” per Market. GRP is a term usedin advertising to measure the size of an audience reached by a specific mediavehicle or schedule. It is the product of the percentage of the target audiencereached by an advertisement, times the frequency they see it in a given campaign.For example, a TV advertisement that is aired 5 times reaching 50% of the targetaudience would have 250 GRPs (GRP = 5 × 50%).We conservatively estimate that 2,730 total spots will be run, but it is likely thatadditional spots will be negotiated at the time of the buy. On its own, the LocalTelevision Notice is estimated to reach over 80% of adults aged 18+ in the GulfCoast Areas with an estimated average frequency of 3.6 times each.© 2012 Hilsoft Notifications 40
  • 178. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 95 of 206 22. TV Dayparts/Programming The periods of the day and programs on which the television notice will air.Utilizing several dayparts increases the Notice Plan’s ability to reach persons withdifferent viewing habits. Daypart mixes and programming selections may changeat the time the buy is authorized, based on negotiations and availabilities. Morning • Morning news programming provides an ideal environment for notification messages. • Loyal audience builds frequency among those reached. • Programming considered includes Good Morning America, The Today Show, CBS Early Show and Local News. Daytime • Extends reach among homemakers, retirees, or unemployed Class Members. • Loyal audience builds frequency among those reached. • Programming considered includes daytime dramas, game shows and/or talk shows. Syndicated (Day/Prime Access/Early Fringe) • Extends reach especially among those with varied viewing schedules. • Programming may include shows like The People’s Court, Judge Mathis, Judge Judy, Ellen DeGeneres Show, Jeopardy, Wheel of Fortune. Early News • Non-opinionated journalism provides an ideal environment for notification programs. • Provides broad reach among Class Members. • Programming considered includes CBS Evening News, ABC World News Tonight, NBC Nightly News with Brian Williams and Local News. Prime/Syndicated Prime • Provides rapid audience awareness and accumulation. • Programming may include shows like CSI:NY, CSI: Miami, Law & Order, 20/20, 60 Minutes, Dateline NBC and Criminal Minds© 2012 Hilsoft Notifications 41
  • 179. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 96 of 206 23. TV Rating Points (GRPs) One rating point equals one percent of the targeted population. This may include the same person reached more than once, so ratings can and often do exceed 100.Approximately 2,730 30-second spots will substantially run over a three-weekperiod in Gulf Coast markets matching the DMAs covered in the Local Newspaperplan. Approximately 300 Gross Rating Points per market and over 67 milliongross impressions will be generated. Ads to air on the top 3 local stations permarket and on the top 6 cable networks per market. Cable networks include: CNN,Fox, Discovery (Deadliest Catch), USA, History and The Weather Channel.Daypart allocation may change at the time the buy is authorized, based onnegotiations and availabilities.© 2012 Hilsoft Notifications 42
  • 180. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 97 of 206 24. TV Gross Impressions Total number of times a television show containing a notice placement is seen.Adults will be exposed to the Notice more than 67 million times during the periodin which the television schedule airs. Adult Daypart Gross Impressions Morning 6,792,300 Daytime 6,792,300 Early Fringe 6,792,300 Early News 10,188,450 Prime Access 10,188,450 Primetime 13,584,600 Late News 6,792,300 Weekend 6,792,300 TOTAL 67,923,000Daypart mixes may change at the time the buy is authorized, based on negotiationsand availabilities.© 2012 Hilsoft Notifications 43
  • 181. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 98 of 206 25. Local Radio ProgrammingLocal radio is a high-frequency medium providing exposure to affected peopleregardless of where they reside (i.e. rural areas, urban areas, etc.).30-second units will appear over a two-week schedule on selected radio stations inthe 26 DMAs identified in section 19. It is estimated that the local Radio Noticewill generate approximately 180 “GRPs” per Market. We conservatively estimatethat 8,712 total spots will be run, but it is possible that additional spots will benegotiated at the time of the buy. On its own, the Local Radio Notice is estimatedto reach just under 45% of adults aged 18+ in the Gulf Coast Areas with anestimated average frequency of 4 times each.To better reach rural communities, the radio notice will appear on “StateNets,” aradio network specializing in reaching C & D counties/parishes in 48 states.Typical StateNets features are news, regional weather and other informationalprograms. We estimate that over 14,000 total spots will run on approximately 200radio stations in the 26 DMAs over a three week period.Additionally, the Radio Notice will be placed on appropriate African-Americanand Spanish language stations. We estimate that 4,032 spots will run on African-American stations. A further 936 spots will run on Spanish language stations inareas of the Gulf Coast with high concentrations of Spanish speaking adults. TheSpanish language Radio Notice will be recorded as a 60-second spot toaccommodate the translation.A radio buy will also be executed, targeted toward the Cajun population inSouthern Louisiana. Approximately 100 spots will run over a 2-week period onlocal stations, including: KLRZ-FM, KLEB-AM, and KANE-AM. The spot willbe voiced in a Cajun dialect.The Local Radio Notice to Hispanic, African-American and Cajun populations isnot calculated into the overall measured reach and frequency of the Notice Plan.© 2012 Hilsoft Notifications 44
  • 182. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 99 of 206 26. Internet Banner Notices National and local banner notices that will appear on web properties.Digital 728x90 pixel and 300x250 pixel banners will be placed on the followingnational online networks: • Yahoo!, • MSN, • AOL, • Weather.com, and • 24/7 Real Media (representing over 900 websites including those related to health, fitness, and news and information).Where available, banners will also be placed on the websites of the selected tradeand specialty publications included in the print publication plan.Combined, approximately 72 million adult impressions will be generated by thesebanner notices over a one month period. Clicking on the banner will jump thesearcher to the case website where they can obtain information about thesettlement.To complement print notices in the selected local newspapers, digital 728x90 and300x250 banners will be placed through quadrantOne on newspaper and local TVwebsites in the identified geographies. Banner notices will run across 31 days anddeliver more than 42 million impressions across Texas, Louisiana, Mississippi,Alabama and Florida. Each banner notice will include a clickable link to thededicated case website.© 2012 Hilsoft Notifications 45
  • 183. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 100 of 206 27. Placing Notices to be Highly Visible Inserting notices in spots within the media that will help gain Class Members’ attention.All placements are not equal. Extra care can and will be taken to place Notices inpositions that will generate “noticeability” among Class Members.In print, the Notice will run as a double page spread. Notice will be placed incertain sections of publications to help ensure that over the course of the mediaschedule, the greatest practicable number of Class Members will see the Notice. Inthe local newspapers, the Notice will appear as a full-page ad unit.Summary Publication Notice DesignThe Summary Publication Notice will be divided into two sections. One sectionwill provide notice of the Economic and Property Damages Settlement. The othersection will provide notice of the Medical Benefits Settlement. Each notice willfeature its own headline to alert potential Class Members that they may be affectedby one or more (or both) of the two proposed Settlements. Both Settlements willshare a common toll-free number and website address. These will be featuredprominently along the bottom of the Notice.In television, planned spots may be pre-empted15; however, “makegoods” will besought in acceptable programs. A post-buy analysis will assure that GRP levels areachieved. Efforts will be made to enhance the television reach and frequency bytaking advantage of last minute market conditions at the time the buy is placed.This may include varying from the daypart mix or activity weeks in order tocapitalize on the most efficient availabilities, or programs expected to be highlyrated.15TV spot airtimes may change depending on other commercials a network has scheduled, but the network will“make good” on its contract by airing spots with comparable audience delivery.© 2012 Hilsoft Notifications 46
  • 184. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 101 of 206 28. Informational Release Seeking non-paid (and other) exposure of court-approved notice information mainly by way of news articles.A party-neutral, Court-approved informational release will be issued toapproximately 4,200 print and broadcast and 5,500 online press outlets throughoutthe United States. A news release serves a potentially valuable role, providingadditional notice exposure beyond that which will be provided through paid media.There is no guarantee that any news stories will result, but if they do, ClassMembers will have additional opportunities to learn that their rights are at stake incredible news media, adding to their understanding. The release will include thetoll-free number and website address.A list of press outlets receiving the informational release is available upon request.The informational release itself is part of the notice documents included asAttachment 1.© 2012 Hilsoft Notifications 47
  • 185. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 102 of 206 29. TV Public Service Announcements Paid distribution of the notice to select television stations.The 30-second television spot will be distributed as a TV PSA or “public serviceannouncement” to more than 1,200 broadcast television stations throughout theU.S. The packaging will include a letter explaining the important legal nature ofthe announcement to gain the attention of public service directors and encouragestations to air the information. The television spot will feature the case websiteaddress and toll-free number to increase Class Members’ opportunities to obtainmore information and/or respond to the Notice. A list of the broadcast televisionstations that will receive the TV PSA is available upon request.© 2012 Hilsoft Notifications 48
  • 186. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 103 of 206 30. Case Website Delivery of notice via Internet and online services.A neutral, informational, notice website with an easy to remember domain namewill serve as the notice page for both Settlements where potential Settlement ClassMembers can obtain additional information and documents including the Detailedand Summary Notices, Settlement Agreements, Preliminary Approval Orders andany other information that the parties agree to provide or that the Court mayrequire. The case notice website will also include information on how potentialSettlement Class Members can opt-out of the Settlement if they choose.The case notice website address will be prominently displayed in all printed noticedocuments, and appear in all broadcast media including the informational releaseand TV PSAs. The Banner Notices will link directly to the website.Visitors to the case notice website will be able to easily link to separate claimsadministration websites tailored to each Settlement via prominent buttons on thenotice website homepage (one reading “Economic and Property Damages Claims”and the other reading “Medical Claims”). Claim Forms and other informationspecific to each Settlement will be available at these claims administration sites.The case notice website will be color-coordinated with the claims administrationwebsites and all pages that a visitor might see will have a consistent look andfunctionality. In order to stress the separateness of the two Settlements, the claimsadministration sites will have different, but compatible, color schemes. The casenotice website will reflect this by having the button links to each claimsadministration website in the specific color scheme of the website it is linking to.Both claims administration websites will include a prominent link to the otherclaims administration website for visitors interested in both settlements.The claims administrator claims filing website will include an interactive map ofthe Gulf Coast where visitors will be able to input their property or residencyaddress or select a geographic location to assist them in determining if the addressfalls into one or more of the defined Settlement “Zones.” All website content(including the Notices) will be available in English, Spanish and Vietnamese.Translated Notices may also be made available in Khmer, Lao and Haitian/Creoleif requested. A screen shot of the proposed notice website pages is part of thenotice documents included as Attachment 1.© 2012 Hilsoft Notifications 49
  • 187. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 104 of 206 31. Sponsored Search ListingsTo facilitate locating the case website, sponsored search listings will be acquiredon the three most highly-visited Internet search engines: Google, Yahoo! and Bing.When search engine visitors search on common keyword combinations such as“Deepwater Horizon,” “Gulf property settlement,” or “BP Settlement,” thesponsored search listing will display either at the top of the page prior to the searchresults or in the upper right hand column.© 2012 Hilsoft Notifications 50
  • 188. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 105 of 206 32. Notice Design StrategyThe Notices have been designed to motivate Settlement Class Members to viewand understand the message and carry a clear message outlining Settlement ClassMembers’ rights. The strategic approach to content and design is entirelyconsistent with the illustrative “model” notices developed by the Federal JudicialCenter (“FJC”).All print publication notices will be a single advertising unit that includes onesummary notice that addresses the Economic and Property Damages Settlement,and a separate summary notice that addresses the Medical Benefits Settlement.Broadcast and Internet efforts will also provide the message that there is onesettlement addressing economic and property damages claims, and a separatesettlement addressing medical claims.Summary Notice Design Elements:• Bold headline captures attention. The headlines immediately alert even casual readers who may be potential Settlement Class Members that they should read the Notices and why they are important. It speaks directly to the Class Member.• Notice size promotes attention. The Notices are either full-page units in the local newspapers or double-page spreads in most print publications to promote readership.• Notice design alerts readers to the legal significance, lending credibility. The Notice design ensures that readers know that the communication carries legitimate, important information, not commercial advertising. The clear delineation between the Economic and Property Damages Settlement Notice text and the Medical Benefits Settlement Notice text highlights that the Court is considering two separate settlements and that the reader may have rights under each Settlement or under both.• Plain language enhances comprehension. The Notice concisely and clearly states the information in plain, easily understandable language so that Class Members can comprehend the Notice effectively.• Comprehensive content fulfills legal requirements. All critical information about Settlement Class Members’ rights is included. No key information is omitted.© 2012 Hilsoft Notifications 51
  • 189. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 106 of 206• Toll-free number and website invite response. The Notice invites response by providing simple, convenient mechanisms, such as the toll-free number and website for Settlement Class Members to obtain additional information, if desired.• Translations allow participation across speakers of key languages. The Summary Notice will be translated into Spanish and Vietnamese for placement in the appropriate Spanish and Vietnamese language newspapers. The Detailed Notice will include tag lines in Spanish and Vietnamese telling potential Class Members that the notices are available in each language on the website or by calling the toll-free number.Television and Radio Notice Design Elements:• Designed to stand apart from ads. Because they are designed to look and sound different from commercials selling products, viewers and listeners understand its significance and take notice.• Key words and concepts are depicted on screen. The principles of communication dictate visual and verbal repetition of key concepts presented.• Convenient response-oriented approach is provided. In the TV Notice, the website and toll-free number are spoken and shown on the screen long enough to allow Class Members to write them down or remember them. The Radio Notice will repeat the toll-free number and website if time permits.• Simple information allows sufficient understanding. Although concise, the purpose of the Notice is served by delivering the substance of the message (that there are two separate Settlements) and prompting a response to get more information.© 2012 Hilsoft Notifications 52
  • 190. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 107 of 206 33. Draft Forms of NoticeAll notice documents have been drafted by Hilsoft in cooperation with the partiesand subject to the approval of the Court. These documents include:• The Cover Letter, Detailed Notice and Mailing Envelope that will be mailed to all known potential Settlement Class Members and to those who call to request one as well as made available at the website.• The Email Notice that will be sent to known, likely Settlement Class Members for whom an email address is available.• The Publication Notice as it will appear in magazines and newspapers identified in the Notice Plan.• The Television Notice Storyboard that will be produced as a 30-second unit and aired as a paid local spot and nationally via the TV PSA effort.• The Television PSA script and cover text.• The Radio Notice Script that will be produced as a 30-second spot (60-second when translated into Spanish) and aired as a paid local spot.• The Internet Banner Notices that will be posted on a variety of web properties.• Pages from the Notice Website as they will be posted on the Internet.• The neutral Informational Release that will be issued to news outlets throughout the U.S.Notice drafts are included as Attachment 1 and foreign language translations willbe provided with our final report.© 2012 Hilsoft Notifications 53
  • 191. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 108 of 206 ––ƒ…Š‡– ͳǣ ‘”• ‘ˆ ‘–‹…‡ ˆ‘” …‘‘‹… Ƭ ”‘’‡”–› ƒƒ‰‡• ‘–‹…‡ Žƒ
  • 192. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 109 of 206 Attachment 1A: Cover Letter, Detailed Notice, Mailing Envelope
  • 193. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 110 of 206 Cover Letter
  • 194. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 111 of 206Notice Administrator for U.S. District CourtPost Office Box NNNNCity, ST ZipF-Name MI L-NameStreet Address 1Street Address 2City, ST ZipAn Economic & Property Damages Settlement has been reached related to the Deepwater Horizonincident. The Settlement will provide payments to qualifying individuals and businesses that file validclaims for economic and property damage. You are receiving this notice because you have beenidentified as a possible member of the Economic and Property Damage Settlement Class. Please reviewthe enclosed notice about the Economic & Property Damages Settlement carefully.If you are included in this Settlement, you have rights and options such as submitting a claim forbenefits, opting-out of or objecting to the Settlement. A court hearing will be held on Month DD, 20YYto consider whether the Settlement is fair, reasonable and adequate. The hearing may be moved to adifferent date, time, or location without additional notice, so it is recommended that you periodicallycheck www.[ ].com for updated information.You need to submit a claim to request a payment. You can get a copy of the Claim Form by visiting thewebsite www.[ ].com or by calling 1-8XX-XXX-XXXX. If you have questions about how to file yourclaim, you should call 1-8XX-XXX-XXXX for assistance.Another settlement related to medical benefits claims has also been reached. It is possible to be amember of both settlement classes. To get more information about either settlement, visitwww.[ ].com or call 1-8XX-XXX-XXXX.Sincerely,Notice Administrator [Spanish Tag/Vietnamese Tag] Questions? Visit www.[ ].com or call 1-8XX-XXX-XXXX.
  • 195. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 112 of 206 Detailed Notice
  • 196. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 113 of 206 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA If you had economic loss or property damage because of the Deepwater Horizon oil spill, you could get money from a class action settlement. A federal court directed this Notice. This is not a solicitation from a lawyer.• Two settlements—one for economic and property damage claims and another for medical claims—have been reached with BP Exploration & Production Inc. and BP America Production Company (“BP”) over the Deepwater Horizon oil spill.• This Notice explains the Economic & Property Damages Settlement (“E&PD Settlement”).• If you are included in the Economic & Property Damages Settlement, you may receive money if you have been damaged by the Deepwater Horizon oil spill in one or more of the following categories: ■ Seafood Compensation ■ Vessels of Opportunity Charter Payment ■ Economic Damage ■ Coastal Real Property Damage ■ Loss of Subsistence ■ Wetlands Real Property Damage ■ Vessel Physical Damage ■ Real Property Sales Damage• There are geographic areas or “Zones” associated with several of these categories. The website www.[ ].com has detailed descriptions and maps to help you determine whether a location may be included in one or more of these zones.• Payments will be made for most claims as they are received and approved, with the exception of certain Seafood Compensation claims.• If you are included in the E&PD Settlement (an “E&PD Class Member”), your legal rights are affected whether you act or not. Read this Notice carefully. E&PD CLASS MEMBERS’ LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:SUBMIT A CLAIM FORM The only way to request a payment under the E&PD Settlement.EXCLUDE YOURSELF (OPT OUT) Get no benefits from the E&PD Settlement. Requesting exclusion from this Settlement (also called “Opting Out”) would allow you to bring a lawsuit against BP yourself about the legal claims involved in this E&PD Settlement.OBJECT Write to the Court about why you do not like the E&PD Settlement.GO TO A FAIRNESS HEARING Ask to speak in Court about the fairness of the E&PD Settlement.DO NOTHING Get no individual financial benefits from the E&PD Settlement. However, if you are an E&PD Class Member, the terms of the E&PD Settlement will still apply to you. • These rights and options—and the deadlines to exercise them—are explained in this Notice. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM SI DESEA RECIBIR ESTA NOTIFICACIÓN EN ESPAÑOL, LLÁMENOS O VISITE NUESTRA PÁGINA WEB. (ADD IN TRANSLATED TEXT FOR VIETNAMESE – FIRST PAGE ONLY) 1
  • 197. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 114 of 206WHAT THIS NOTICE CONTAINSBasic Information ...................................................................................................................................... Page 4 1. Why is this Notice being provided? 2. What is this lawsuit about? 3. What is the Deepwater Horizon Incident? 4. Why is this a class action? 5. Why is there a settlement? 6. Is the Economic & Property Damages Settlement part of the Gulf Coast Claims Facility (GCCF)? 7. What happened to pending or unresolved GCCF claims? 8. What if I received a GCCF final payment and signed a release? 9. If I submitted a Short Form Joinder in the lawsuit, do I still need to file a claim?Who Is In The Settlement ......................................................................................................................... Page 6 10. Who is in the Economic & Property Damages Class? 11. Are there exceptions to being included in the Economic & Property Damages Class? 12. How do I know if I am eligible to receive a payment from the Economic & Property Damages Settlement? 13. Does the Economic & Property Damages Settlement cover claims for medical benefits? 14. What if I’m still not sure whether I am included in the Economic & Property Damages Settlement? 15. What happens if I am not included in the Economic & Property Damages Settlement?E&PD Settlement Claims Eligibility And Benefits Chart.................................................................... Page 11How To Request A Payment—Submitting A Claim Form .................................................................. Page 15 16. How much will an eligible Economic & Property Damages Class Member receive? 17. How do I submit a Claim Form to request payment? 18. Do I need to submit supporting documentation? 19. What if my claim is denied or I am not satisfied with my payment? 20. When will I get my payment? 21. What other benefits does the Economic & Property Damages Settlement provide? 22. What am I giving up to get a payment?Excluding Yourself From the Economic & Property Damages Class ................................................ Page 17 23. If I do not want to participate in the Economic & Property Damages Settlement, what must I do? 24. If I exclude myself, can I get anything from this Settlement? 25. If I exclude myself from the Economic & Property Damages Settlement, can I still make an Oil Pollution Act claim with BP directly? 26. If I do not exclude myself, can I sue BP later? 27. If I exclude myself from the Economic & Property Damages Settlement, can I change my mind later? QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 2
  • 198. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 115 of 206Objecting To the Settlement ................................................................................................................... Page 18 28. How do I tell the Court if I do not like the Economic & Property Damages Settlement? 29. What is the difference between objecting to, and asking to be excluded from, the Economic & Property Damages Settlement?The Lawyers Representing You ............................................................................................................. Page 19 30. Do I have a lawyer in this case? 31. How will the lawyers be paid?The Court’s Fairness Hearing ................................................................................................................ Page 20 32. When and where will the Court decide whether to approve this Economic & Property Damages Settlement? 33. Do I have to come to the Fairness Hearing?If You Do Nothing ................................................................................................................................... Page 21 34. What happens if I do nothing?Getting More Information ...................................................................................................................... Page 21 35. How do I get more information? QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 3
  • 199. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 116 of 206 BASIC INFORMATION 1. Why is this Notice being provided?You have a right to know about a proposed settlement of this class action lawsuit and about your optionsrelating to the proposed Settlement. This Notice explains the lawsuit, the E&PD Settlement, your legalrights, what benefits are available, who may be eligible for those benefits, and how to get them.This Notice does not provide any information related to the Medical Benefits Settlement. For moreinformation about the Medical Benefits Settlement, and to determine whether your rights are affected bythat settlement, or whether you are eligible for benefits under that settlement, visit www.[ ].com, orcall 1-8XX-XXX-XXXX.Judge Carl J. Barbier of the United States District Court for the Eastern District of Louisiana isoverseeing this class action. The case is known as In re: Oil Spill by the Oil Rig "Deepwater Horizon"in the Gulf of Mexico on April 20, 2010, MDL No. 2179. The people who started the lawsuit are called“Plaintiffs,” and BP is among the companies being sued.Capitalized terms are defined terms in the E&PD Settlement Agreement, which is available on thewebsite.Do not call the Court or any Judge’s office to ask questions about the E&PD Settlement. If you havequestions or if you want more information, please visit www.[ ].com or call 1-8XX-XXX-XXXX. 2. What is this lawsuit about?The lawsuit asserts certain economic loss and property damage claims arising out of the “DeepwaterHorizon Incident” (see Question 3) in the Gulf of Mexico beginning on April 20, 2010. The Plaintiffsseek money and other relief for economic and property damage they allege was caused by the DeepwaterHorizon Incident. BP disputes and denies Plaintiffs’ claims in that lawsuit. 3. What is the Deepwater Horizon Incident?“Deepwater Horizon Incident” refers to the events, actions, inactions, and omissions leading up to andincluding: • The blowout of the MC252 Well (also known as the “Macondo well”) on April 20, 2010; • The explosions and fire on board the Deepwater Horizon oil rig; • The sinking of the Deepwater Horizon oil rig on April 22, 2010; • The release of oil and other substances from the MC252 Well and/or the Deepwater Horizon oil rig and its appurtenances (equipment); • The efforts to contain the MC252 Well; • All “Response Activities” including the “Vessels of Opportunity” (“VoO”) program; • The operation of the “Gulf Coast Claims Facility” (“GCCF”); and • BP’s public statements relating to all of the above. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 4
  • 200. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 117 of 206 4. Why is this a class action?In a class action, one or more people called “Class Representatives” sue on behalf of people who havesimilar claims. All of the people and businesses that have similar claims to the class representatives area “class,” or in this instance “Economic & Property Damages Settlement Class Members” (“E&PD ClassMembers”). One court resolves the issues for all class members. 5. Why is there a settlement?The Court has not decided the case in favor of Plaintiffs or BP. Instead, after extensive, arm’s lengthnegotiations, the Plaintiffs and BP have agreed to settle this case to avoid the cost, delay, and risk of atrial. The Class Representatives and their lawyers think the proposed E&PD Settlement is best for allE&PD Class Members. 6. Is the Economic & Property Damages Settlement part of the Gulf Coast Claims Facility (GCCF)?No. The GCCF has been closed. The new Deepwater Horizon Court-Supervised Settlement Program(“Settlement Program”) has been established under the E&PD Settlement. By the agreement of theparties, the new program operates according to specific, agreed-upon rules and under the supervision ofthe Court. If you had a claim rejected or denied by the GCCF, it will not affect your eligibility or rightto receive a payment under the E&PD Settlement. If you had a claim paid by the GCCF, and you did notsign a release (see Question 8), you may still be eligible to receive a payment under the E&PDSettlement. 7. What happened to pending or unresolved GCCF claims?All pending and unresolved GCCF claims, including all documents related to those claims, have beentransferred to the new Settlement Program. The Settlement Program is processing these claims under therules of the E&PD Settlement. If additional information is needed to process your claim, you will becontacted. If you have a specific question about the status of a GCCF claim, you can call the SettlementProgram at 1-8XX-XXX-XXXX for assistance. 8. What if I received a GCCF final payment and signed a release?If you made a claim to the GCCF, received payment for that claim, and signed a document called,“Release and Covenant Not to Sue,” you are not eligible to receive money from most parts of the E&PDSettlement. However, you may still be eligible to submit a VoO Charter Payment claim or a VesselPhysical Damage claim (see the E&PD Settlement Claims Eligibility and Benefits Chart below fordetails of VoO Charter Payments and Vessel Physical Damage claims.) You may also still be eligible toparticipate in the separate Medical Benefits Settlement. If your GCCF claim and the “Release andCovenant Not to Sue” related only to a bodily injury claim, you may still be able to participate in theE&PD Settlement. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 5
  • 201. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 118 of 206 9. If I submitted a Short Form Joinder in the lawsuit, do I still need to file a claim?Yes. Even if you submitted a special short form (“Short Form Joinder”) as part of the lawsuit againstBP, you still must submit a Claim Form and provide all required documentation to request a paymentfrom the Settlement Program (see Question 17). WHO IS IN THE SETTLEMENTTo see if you will be affected by the E&PD Settlement or if you can get a payment from it, you first haveto determine if you are an E&PD Class Member. 10. Who is in the Economic & Property Damages Class?The E&PD Class includes individuals, businesses, and other entities. Please answer the series ofquestions below to see if you may be an E&PD Class Member. The first set of questions is forindividuals and the second set of questions is for businesses and other entities. The definitions belowwill help you when answering the questions.• “Gulf Coast Areas” include the States of Louisiana, Mississippi, and Alabama; the counties of Chambers, Galveston, Jefferson, and Orange in the State of Texas; and the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton, and Washington in the State of Florida. “Gulf Coast Areas” also includes all adjacent Gulf waters, bays, estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, and Alabama, and those described counties of Texas or Florida.• “Specified Gulf Waters” means the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas.• “Entity” means an organization or entity, other than a Governmental Organization, operating or having operated for profit or not-for-profit, including a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, or an unincorporated association of any kind or description.• “Consumer” means a Natural Person or an Entity that buys any product for individual use or consumption and not for manufacture or resale.• “End User” means a Natural Person or Entity that buys any product for his, her, or its individual use or consumption and not for manufacture or resale. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 6
  • 202. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 119 of 206Questions for Individuals Yes NoDo you live in the U.S.? Continue to You are not an next question. E&PD Class Member.Did you live in, work in, were offered and accepted work in, own or lease Continue to You are not anproperty in, or own, lease, or work on a vessel harbored or home-ported in next question. E&PD Classthe Gulf Coast Areas or Specified Gulf Waters at any time between April Member.20, 2010, and April 16, 2012?ORDid you work on a vessel in Specified Gulf Waters at any time betweenApril 20, 2010 and April 16, 2012 that landed Seafood in the Gulf CoastAreas after April 20, 2009? Continue to You are not anDo you have any economic loss arising out of the Deepwater Horizon next question. E&PD ClassIncident? Member.ORWas your real or personal property damaged as a result of the DeepwaterHorizon Incident? You may be an You are not anDo your claims for economic loss or property damage meet the descriptions of E&PD Class E&PD Classone or more of these categories: Member. Member.(1) Seafood Compensation Continue to(2) Economic Damage Eligibility and(3) Loss of Subsistence Benefits Chart beginning on(4) Vessels of Opportunity (“VoO”) Charter Payment page 11 of this Notice to(5) Vessel Physical Damage determine(6) Coastal Real Property Damage whether you may be(7) Wetlands Real Property Damage eligible for a(8) Real Property Sales Damage payment.Individuals may also be included in the Medical Benefits Settlement if they were Clean-Up Workers orwere residents in certain defined areas or “Zones.” More information on the Medical BenefitsSettlement is available on the website or by calling 1-8XX-XXX-XXXX. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 7
  • 203. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 120 of 206Questions for Businesses and Other Entities Yes No(1) Did your business or Entity own, operate, or lease a physical facility Continue to next You are not anor vessel in the Gulf Coast Areas or Specified Gulf Waters between question. E&PD ClassApril 20, 2010 and April 16, 2012, and Member. Sell products in the Gulf Coast Areas or Specified Gulf Waters: (a) directly to Consumers or End Users of those products; or (b) to another Entity that sold those products to Consumers or End Users of those products? or Regularly purchase Seafood harvested from Specified Gulf Waters in order to produce goods for resale? OR(2) Was your business or Entity a service business with one or more full-time employees (including owner-operators) who performed full-timeservices while physically present in the Gulf Coast Areas or SpecifiedGulf Waters between April 20, 2010 and April 16, 2012? OR(3) Did your business or Entity own, operate, or lease a vessel that (a)was home ported in the Gulf Coast Areas at any time from April 20,2010 to April 16, 2012, or (b) landed Seafood in the Gulf Coast Areas atany time from April 20, 2009 to April 16, 2012? OR(4) Did your business or Entity own or lease real property in the GulfCoast Areas between April 20, 2010 and April 16, 2012? You may be an You are not anDo your business’s or Entity’s claims for economic loss or property damage E&PD Class E&PD Classmeet the descriptions one or more of these categories: Member. Member.(1) Seafood Compensation Continue to(2) Economic Damage Eligibility and(3) Vessels of Opportunity (“VoO”) Charter Payment Benefits Chart beginning on page(4) Vessel Physical Damage 11 of this Notice to determine(5) Coastal Real Property Damage whether you may(6) Wetlands Real Property Damage be eligible for a payment.(7) Real Property Sales Damage QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 8
  • 204. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 121 of 206 11. Are there exceptions to being included in the Economic & Property Damages Class?Yes. The following individuals and entities are excluded from the E&PD Class: • Anyone who excludes themselves from (“Opts Out” of) the E&PD Class; • Defendants in MDL 2179 and certain current and former employees of BP and other Defendants in MDL 2179; • The Court, including any sitting judges on the United States District Court for the Eastern District of Louisiana, their law clerks serving during the pendency of this lawsuit, and members of any such judge’s or current law clerk’s immediate family; • Governmental Organizations; and • Individuals and Entities that received a payment from the GCCF and signed a “Release and Covenant Not To Sue” (although these Individuals and Entities may still make a VoO Charter Payment claim or a Vessel Physical Damage claim). See Questions 6-8.In addition, the following types of Entities and their employees are excluded, to the extent these Entitiesand/or their employees claim economic losses based on their employment by such Entity: • Certain Financial Institutions; • Certain Funds, Trusts, and Other Financial Vehicles; • Certain Gaming Entities; • Certain Insurance Entities; • Certain Oil & Gas Industry Entities; • Certain Defense Contractors; • Certain Real Estate Developers; and • Any Entity selling or marketing BP-branded fuel, including jobbers and branded dealers.Individuals and Entities in these above-listed industries may be eligible for payments under certaincategories of economic losses not related to these industries, such as Coastal Real Property Damage andWetlands Real Property Damage. See the Settlement Agreement or call 1-8XX-XXX-XXXX for moreinformation.The following claims are also not included in the E&PD Settlement: • Bodily Injury Claims; • BP Shareholder Claims; • Moratoria Loss Claims; • Claims relating to menhaden (or “pogy”) fishing, processing, selling, catching, or harvesting; • Claims for Economic Damage by Entities or Individuals based on employment in the Banking, Gaming, Financial, Insurance, Oil & Gas, Real Estate Development, and Defense Contractor industries, as well as Entities selling or marketing BP-branded fuel (including jobbers and branded dealers); and • Claims for punitive damages against Halliburton and Transocean. See Question 21.You may still pursue these claims even if you remain in the E&PD Class.The full description of the Entities, individuals, and claims that are excluded from the E&PD Class canbe found on the website or by calling 1-8XX-XXX-XXXX. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 9
  • 205. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 122 of 206 12. How do I know if I am eligible to receive a payment from the Economic & Property Damages Settlement?There are separate eligibility rules for each of the claim categories in the E&PD Settlement. TheSettlement Claims Eligibility and Benefits Chart beginning on page 11 of this Notice illustrates who maybe eligible to receive a payment in each category. A number of these categories include geographiczones. Visit the website to review detailed zone maps. 13. Does the Economic & Property Damages Settlement cover claims for medical benefits?No. The E&PD Settlement does not include claims for medical benefits. If you suffer from medical conditionsarising out of the Deepwater Horizon Incident, you may also be eligible to participate in the Medical BenefitsSettlement. More information about the Medical Benefits Settlement is available on the website or by calling1-8XX-XXX-XXXX. 14. What if I’m still not sure whether I am included in the Economic & Property Damages Settlement?If you are not sure whether you are in the E&PD Class, or have any other questions about the E&PDSettlement, visit the settlement website at or call the toll-free number, 1-8XX-XXX-XXXX. You mayalso write with questions to XXXXXXXXXXXXXXXXXX, PO Box XXXX, City, State XXXXX-XXXX or send an e-mail to info@[ ].com. 15. What happens if I am not included in the Economic & Property Damages Settlement?If you are not an E&PD Class Member, you are not included in the E&PD Settlement. However, youmay still be included in the Medical Benefits Settlement (see Question 13). Also, if you are not includedin the E&PD Settlement, you may file an Oil Pollution Act claim with BP directly. You can get moreinformation about filing an Oil Pollution Act claim directly with BP by visiting www.[ ].com orcalling 1-8XX-[OPANUMBER]. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 10
  • 206. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 123 of 206E&PD SETTLEMENT CLAIMS ELIGIBILITY AND BENEFITS CHART Claim Category Eligibility Requirements Potential BenefitsSeafood Claims for economic loss related to Seafood can be made by Individuals and BP will pay at least $2.3 billion in total for economic lossCompensation Entities that qualify as Commercial Fishermen, Seafood Boat Captains, related to Seafood under the Seafood Compensation ProgramClaim Seafood Crew (including first mates, second mates, boatswains, and under a process approved by the Court-appointed Neutral, deckhands), Oyster Leaseholders, and Seafood Vessel Owners. Claims may John W. Perry, Jr. be submitted in the following categories: The payment amount for Seafood Compensation claims • Shrimp; varies by type of claim submitted. • Oyster (including leaseholder interest and lost income claims); Any money previously received from BP or the GCCF for • Finfish (including IFQ holders); spill-related Seafood claims (excluding VoO claims) will be • Blue Crab and Other Fish; and deducted from the Settlement payment. • Seafood Crew (excluding Boat Captains) An RTP* multiplier may be applied to payments for all claim Claimants may seek compensation under more than one Seafood categories other than IFQ holders and certain Seafood Crew. Compensation claim category, but all claims must be submitted on a single Seafood Compensation Claim Form. All Seafood Compensation claims will be paid as they are received and approved, except for some Seafood Crew The Seafood Compensation claim deadline is earlier than the claim deadline claims that will be determined after the Seafood for all other claims in the E&PD Settlement. The deadline to submit a Compensation claim deadline and paid as soon as possible Seafood Compensation Claim Form is 30 days after entry and judgment of the by the Claims Administrator. Court’s final approval of the E&PD Settlement. The exact date of the claim deadline will be posted on the website.* The “Risk Transfer Premium” (“RTP”) increases the payment amount for certain E&PD Class Members whose losses could be recurring, to account for the riskof future economic losses related to the Deepwater Horizon Incident. The E&PD Settlement specifies RTPs applicable to certain types of industries or claims. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 11
  • 207. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 124 of 206Economic Claims for economic damage can be made by Individuals and Entities in In general, the payment amount for Economic DamageDamage Claim certain industries or geographic zones that lost profits or earnings as a result of claims is calculated by comparing actual post-spill earnings the Deepwater Horizon Incident. to the earnings that might have been expected in that post- spill period. There are also considerations for specialized Depending on their industry or geographic zone, some Individuals and Entities circumstances, such as start-up businesses, failed businesses, may need to provide evidence that their economic losses were caused by the multi-facility businesses, new entrants to employment, and Deepwater Horizon Incident. festival vendors. For more details on eligible Economic Damage claims, please visit the An RTP* multiplier will be applied to the payments for some Settlement website. types of Economic Damage claims. Any money previously received from BP or the GCCF for the same economic loss will be deducted from the Settlement payment.Loss of Claims for loss of subsistence can be made by Individuals who fished or Payments will be based on the retail value of the SeafoodSubsistence hunted in certain geographic regions to harvest, catch, barter, consume, or and Game lost between April 20, 2010 and December 31,Claim trade Gulf of Mexico natural resources, including Seafood and Game, in a 2011. traditional or customary manner to sustain their basic or family dietary, economic security, shelter, tool or clothing needs, and who relied upon An RTP* multiplier will be applied to payments for Loss of subsistence resources that were diminished or restricted in the geographic Subsistence claims, in part to account for the damage to region used by the claimant due to the Deepwater Horizon Incident. subsistence family and community customs and culture. Those who fish or hunt solely for pleasure or sport are not eligible to make claims for subsistence, regardless of whether or not they consume their catch.VoO Charter Claims for economic loss caused by participation in the VoO program For claimants who were dispatched or asked to perform workPayment Claim (regardless of whether dispatched or asked to perform work) can be made by in the VoO program, payment amounts will range from those who: $41,600 to $88,400, depending on vessel length. Registered to participate in the VoO program; For claimants who completed the initial VoO training program but were never dispatched or asked to perform work Executed a VoO Master Vessel Charter Agreement; and in the VoO program, payment amounts will range from Completed the initial VoO training program. $4,800 to $10,200, depending on vessel length.* The “Risk Transfer Premium” (“RTP”) increases the payment amount for certain E&PD Class Members whose losses could be recurring, to account for the riskof future economic losses related to the Deepwater Horizon Incident. The E&PD Settlement specifies RTPs applicable to certain types of industries or claims. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 12
  • 208. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 125 of 206Vessel Physical Individuals and Entities who were owners of an eligible vessel between April Qualifying claimants will receive the lesser of the reasonableDamage Claim 20, 2010 and December 31, 2011 may recover for physical damage resulting and necessary costs to repair or replace an eligible vessel. from the Deepwater Horizon Incident or certain response clean-up operations, including the cost of removal of equipment or rigging added to an eligible vessel as part of response activities. Payment is not available to claimants who: • Signed a Receipt and Release Letter Agreement for damage reimbursement as part of the VoO program; or • Sustained damage to vessels while working for any oil spill response organization or an oil spill removal organization (other than the VoO program).Coastal Real Individuals and Entities who owned or leased coastal real property or boat Payment amounts range from 30% to 45% of the parcel’sProperty Damage slips located in certain geographical areas at any time from April 20, 2010 to standardized 2010 applicable property tax amount,Claim December 31, 2010, can make claims for damage to that property. depending on its location and environmental sensitivity. In addition, for coastal real property located in certain geographic areas, An RTP* multiplier will be applied to payments for Coastal owners of real or personal property that was physically damaged in connection Real Property Damage claims. with the Deepwater Horizon Incident response cleanup operations can make Payment for Response Operations Physical Damage is equal claims for Physical Damage. to the cost to either repair or replace the damaged property, whichever is lower.* The “Risk Transfer Premium” (“RTP”) increases the payment amount for certain E&PD Class Members whose losses could be recurring, to account for the riskof future economic losses related to the Deepwater Horizon Incident. The E&PD Settlement specifies RTPs applicable to certain types of industries or claims. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 13
  • 209. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 126 of 206Real Property Real Property Sales Damage claims can be made by sellers of residential Payment amounts will include 12.5% of the sale price of theSales Damage property located in certain geographic areas if: qualifying residential property, less any prior compensationClaim that the claimant previously received from BP or the GCCF • The seller owned the property on April 20, 2010; and in connection with the same property. • The sale of the property closed between April 21, 2010 and December 31, For shared properties, this amount will be divided based on 2010. The sales contract must have been: (1) executed on or after April the claimant’s ownership interest. 21, 2010, or (2) executed before April 21, 2010, but subject to a price reduction due to the Deepwater Horizon Incident. Transfers of residential real property from borrowers to lenders as part of the foreclosure process are not included.Wetlands Real Individuals and Entities who owned wetlands real property located in certain Payments will range between $4,500 and $25,000 per acre ofProperty Damage geographic areas at any time between April 20, 2010 and April 16, 2012, can certain shoreline or buffer areas based on whether theClaim make claims for Wetlands Real Property Damage. presence of oil was observed by various official assessments. In addition, owners of real or personal property, on wetlands real property Payment for Physical Damage is equal to the cost to either located in certain geographic areas that was physically damaged by the repair or replace the damaged property, whichever is lower. Deepwater Horizon Incident response cleanup operations, can make claims for Physical Damage. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 14
  • 210. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 127 of 206 HOW TO REQUEST A PAYMENT—SUBMITTING A CLAIM FORM 16. How much will an eligible Economic & Property Damages Class Member receive?The amount of your payment will be based on the type of claim you have (see E&PD Settlement ClaimsEligibility and Benefits Chart beginning on page 11 of this Notice). Complete information on all of theE&PD Settlement benefits is available on the website.If you receive a payment for an Economic Damage or Seafood Compensation claim, you may also beeligible for payment of specified professional accounting services used to prepare your claim under areimbursement framework. Visit the website for information on the accounting services reimbursementprocess.If you have questions about how the value of your potential claim will be determined, you can call1-8XX-XXX-XXXX for assistance. 17. How do I submit a Claim Form to request payment?If you are an E&PD Class Member, you must complete and submit a Claim Form to request a payment.Each claim category has its own specific Claim Form with detailed instructions, including the types ofsupporting documentation required. A Claim Form package is available on the website, or can be sent toyou by mail by calling 1-8XX-XXX-XXXX.To submit a Claim Form, you must mail it to the address below or file your Claim online on the website.If you have questions about how to file your claim, you should call 1-8XX-XXX-XXXX for assistance.Claim Offices will also be open across the Gulf Coast to help Class Members file claims. Please visit thewebsite or call 1-8XX-XXX-XXXX for the location of the Claim Offices.The address for mailing your Claim Form(s) is: _____________ Settlement PO Box XXX City, State XXXXX-XXXXYou may be eligible to file a claim under more than one category. You do not need to submit yourclaims under all categories at one time. However, once you receive your first payment under theSettlement Program, you must file any and all additional claims within six months from the date of thatfirst payment.All claims for Seafood Compensation must be made in a single Seafood Compensation Claim Form. Thedeadline to submit a Seafood Compensation Claim Form is 30 days after entry and judgment of theCourt’s final approval. This deadline is earlier than the claims deadline for all other claims in the E&PDSettlement. The exact date of the claim filing deadline will be posted on the website.The deadline for filing a Claim Form for all claims other than Seafood Compensation claims is April 22,2014, or six months after the E&PD Settlement becomes effective (i.e. after the Court grants “finalapproval” and any appeals are resolved). The exact date of the claim filing deadline will be posted on thewebsite. It is highly recommended that E&PD Class Members complete and submit their Claim Formpromptly. If you do not submit a Claim Form on time you will lose the opportunity to apply for apayment from the E&PD Settlement. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 15
  • 211. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 128 of 206 18. Do I need to submit supporting documentation?Yes. You will need to include certain supporting documents for your claim to be accepted. Please readthe Claim Form instructions carefully. If you have any questions about preparing the Claim Form, call1-8XX-XXX-XXXX. 19. What if my claim is denied or I am not satisfied with my payment?The E&PD Settlement provides a process to resolve disagreements about how much money you shouldget. You will get further details in the letter you receive with your payment. If your claim is denied, or ifyou are not satisfied with the amount of your payment, you may file an appeal. In cases of an awardabove $25,000, BP also has the right to appeal. The website will have an appeal form and furtherexplanation of the appeals process. Please note that there is no appeals process for some SeafoodCompensation claims. 20. When will I get my payment?In general, valid claims will be paid as they are received and approved, except for certain SeafoodCompensation claims. Certain Seafood Crew claims for Seafood Compensation will be paid after theSeafood Compensation claim deadline, after all such Seafood Crew claims have been processed. 21. What other benefits does the E&PD Settlement provide?The E&PD Settlement includes the creation of a new $57 million fund to promote tourism and theseafood industry in Gulf Coast areas affected by the Deepwater Horizon Incident.In addition, BP is giving to the E&PD Class the right to pursue certain claims against Transocean andHalliburton for the benefit of the E&PD Class. If successful, any proceeds from such claims will be usedfor the benefit of the class in a manner to be approved by the Court. 22. What am I giving up to get a payment?If you accept a payment in the E&PD Settlement, you will give up your right to sue BP or the ReleasedParties (identified in Section 10 of the Settlement Agreement) regarding all of the claims resolved by theE&PD Settlement, as described more fully in Section 10 of the E&PD Settlement Agreement.However, you will NOT give up your right to sue BP or any of the Released Parties for any other claims(i.e. any claims that were not resolved by the E&PD Settlement).The full text of the Settlement Agreement is available on the website. The Settlement Agreementdescribes the released claims with specific descriptions in legal terminology, so read it carefully. Ifyou have any questions about the released claims and what they mean, you can talk to the law firmsrepresenting the E&PD Class, listed in Question 30 below, for free; or you can, at your own expense, talkto your own lawyer. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 16
  • 212. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 129 of 206 EXCLUDING YOURSELF FROM THE ECONOMIC & PROPERTY DAMAGES CLASSIf you do not want to participate in the E&PD Settlement and you want to keep all of your rights to sueBP and any of the Released Parties about the claims being resolved in the E&PD Settlement, then youmust take steps to get out of the E&PD Class. This is called asking to be excluded from, or sometimescalled “Opting Out” of, the class. 23. If I do not want to participate in the Economic & Property Damages Settlement, what must I do?To exclude yourself or your Entity from (or Opt Out of) the E&PD Class, you must mail in a writtenrequest stating “I wish to be excluded from the Economic & Property Damages Class.” Your writtenrequest must also include your printed name, address and phone number, and must be signed by you.You must mail your written request postmarked by Month Day, 2012, to: Deepwater Horizon Court-Supervised Settlement Exclusions Department PO Box 222 Hammond, LA 70404-0222You cannot ask to be excluded from the E&PD Settlement on the phone, by email, or on the website.If you choose to Opt Out of the Economic Class, you must Opt Out for all claims you have that areincluded in the E&PD Settlement.You do not have to Opt Out of the E&PD Settlement in order to preserve or pursue: • Bodily Injury Claims; • BP Shareholder Claims; • Moratoria Loss Claims; • Claims arising from the fishing, processing, selling, catching, or harvesting of menhaden or “pogy” fish; • Certain Oil & Gas Industry Claims; • Certain Gaming Industry Claims; • Certain Banking, Financial and/or Insurance Industry Claims; • Economic Damage claims based on employment in the following industries: o Banking, Financial and/or Insurance; o Oil & Gas; o Gaming; • Claims for punitive damages against Halliburton and Transocean. 24. If I exclude myself, can I get anything from this Settlement?No. If you exclude yourself from the E&PD Settlement, you will not be able to make a claim to receiveany payment under the E&PD Settlement, and you cannot object to the proposed E&PD Settlement. Ifyou exclude yourself, however, you may sue or be part of a different lawsuit against BP in the future.You will not be bound by anything that happens in this lawsuit. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 17
  • 213. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 130 of 206 25. If I exclude myself from the Economic & Property Damages Settlement, can I still make an Oil Pollution Act claim with BP directly?Yes. Individuals, businesses, and Entities that exclude themselves from the E&PD Settlement may file OilPollution Act claims directly with BP. You can get more information about filing an Oil Pollution Actclaim directly with BP by visiting www.[ ].com or calling 1-8XX-[OPANUMBER]. 26. If I do not exclude myself, can I sue BP later?No. If you are an Economic & Property Damages Class Member and you do not exclude yourself, yougive up the right to sue BP or any of the Released Parties for the claims that the E&PD Settlementresolves.27. If I exclude myself from the Economic & Property Damages Settlement, can I change my mind later?Yes. You have the right to request to withdraw (“revoke”) your decision to Opt Out of the E&PDSettlement as long as you do it by Month Day, 20YY, as described more fully in Section 8 of the E&PDSettlement Agreement. In some cases you may be able to revoke your request to Opt Out of the E&PDSettlement after Month Day 20YY, but BP must agree to any request received after this date and there isno guarantee they will do so. Please visit the website or call 1-8XX-XXX-XXXX for details about howto revoke an Opt Out. OBJECTING TO THE SETTLEMENT 28. How do I tell the Court if I do not like the Economic & Property Damages Settlement?Only an E&PD Class Member can object to the E&PD Settlement. If you are an E&PD Class Member,you can object to the E&PD Settlement if you do not like all or some part of it. To object, send a letterexplaining your objection to the proposed Economic & Property Damages Settlement in In re: Oil Spillby the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, MDL No. 2179. Yourobjection letter must include: 1) A detailed statement of each objection being made, including the specific reasons for each objection, and any evidence or legal authority to support each objection; 2) Your name, address, and telephone number; 3) Written evidence establishing that you are an E&PD Class Member, such as proof of residency, proof of ownership of property, and/or proof of business incorporation and operation; and 4) Any supporting papers, materials, or briefs that you want the Court to consider when reviewing the objection.An E&PD Class Member may also object through an attorney hired at his, her, or its own expense. Theattorney will have to file a notice of appearance with the Court by Month Day, 2012, and serve a copy ofthe notice and the objection containing the information detailed above on E&PD Class Counsel and BP’sCounsel by Month Day, 2012.Objections must be sent by first class mail to the following addresses postmarked by Month Day, 2012.Objections submitted after this date will not be considered. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 18
  • 214. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 131 of 206 ECONOMIC & PROPERTY DEFENDANTS’ COUNSEL COURT DAMAGES CLASS COUNSEL James Parkerson Roy Richard C. Godfrey, P.C. Clerk of Court Attn: Deepwater Horizon E&PD Attn: Deepwater Horizon E&PD United States District Court for Settlement Settlement the Eastern District of Louisiana Domengeaux Wright Roy & Kirkland & Ellis LLP 500 Poydras Street Edwards 300 North LaSalle Street New Orleans, LA 70130 556 Jefferson St., Suite 500 Chicago, IL 60654 P.O. Box 3668 Lafayette, LA 70501 Stephen J. Herman Attn: Deepwater Horizon E&PD Settlement Herman Herman Katz & Cotlar LLP 820 O’Keefe Avenue New Orleans, LA 70113Do not call the Court or any Judge’s office to object to the E&PD Settlement. If you have questions,please visit www.[ ].com or call 1-8XX-XXX-XXXX. 29. What is the difference between objecting to, and asking to be excluded from, the Economic & Property Damages Settlement?Objecting is simply telling the Court that you do not like something about the E&PD Settlement. Youcan object only if you stay in the E&PD Class. Excluding yourself, also called Opting Out, is telling theCourt that you do not want to be part of the E&PD Class. If you exclude yourself, you cannot object tothe E&PD Settlement and you will not be eligible to apply for a payment under the E&PD Settlement. THE LAWYERS REPRESENTING YOU 30. Do I have a lawyer in this case?The Court has appointed [___________] as “Economic & Property Damages Class Counsel” to representthe E&PD Class Members. You will not be charged for these lawyers. If you want to be represented byyour own lawyer in this case, you may hire one at your own expense. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 19
  • 215. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 132 of 206 31. How will the lawyers be paid?E&PD Class Counsel will ask the Court to consider an award of fees, costs, and expenses, including aninterim payment of $75 million and additional awards equal to 6% of class claims and benefits paid, and amaximum of $600 million. Class Counsel fees, costs and expenses under the Economic and PropertyDamages Settlement Agreement and the Medical Settlement Agreement jointly cannot exceed $600million.Class members’ payments will not change if the Court approves the payment of Class Counselfees under either settlement, because BP will separately pay these amounts. THE COURT’S FAIRNESS HEARING 32. When and where will the Court decide whether to approve this Economic & Property Damages Settlement?The Court will hold a Fairness Hearing at ___ _.m. on Month Day, 2012, at the United States DistrictCourt for the Eastern District of Louisiana, Court Room No. ___, 500 Poydras Street, New Orleans, LA70130. At the Fairness Hearing, the Court will consider whether the proposed E&PD Settlement is fair,reasonable, and adequate. The Court will also consider Class Counsel’s request for fees, costs andexpenses described in Question 31.If there are objections to the E&PD Settlement, the Court will consider them. After the Fairness Hearing,the Court will decide whether to approve the E&PD Settlement and how much to award to Economic &Property Damages Class Counsel as fees, costs and expenses.The Fairness Hearing may be moved to a different date, time, or location without additional notice, so it isrecommended that you periodically check the website for updated information. 33. Do I have to come to the Fairness Hearing?No. E&PD Class Counsel will answer any questions the Court may have. However, you are welcome toattend the hearing at your own expense. If you send in a written objection, you do not have to come to theFairness Hearing to talk about it. As long as you mailed your written objection on time, the Court willconsider it.If you, or an attorney you have hired at your own expense, wish to speak at the Fairness Hearing, youmust by Month Day, 2012, file with the Court and send by first-class mail to E&PD Class Counsel andBP’s Counsel at the addresses listed in Question 28, a written notice of your intention to speak at theFairness Hearing. Be sure to include your name, address, telephone number, and your signature.Do not call the Court or any Judge’s office to get more information about the E&PD Settlement. If youhave questions, please visit the website or call 1-8XX-XXX-XXXX. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 20
  • 216. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 133 of 206 IF YOU DO NOTHING 34. What happens if I do nothing?If you are an E&PD Class Member and do nothing, you will not get a payment from this E&PDSettlement. And, unless you exclude yourself, you will not be able to start a lawsuit, continue with alawsuit, or be part of any other lawsuit against BP or the Released Parties about the claims being releasedby the E&PD Settlement.However, even if you take no action, you will keep your right to sue BP or any of the Released Parties forany other claims not resolved by the E&PD Settlement. GETTING MORE INFORMATION 34. How do I get more information?This Notice summarizes the proposed E&PD Settlement. More details are in the E&PD SettlementAgreement. You can get a copy of the E&PD Settlement Agreement on the website. You also may writewith questions to XXXXXXXXXXXXXXXX, PO Box XXXX, City, State XXXXX-XXXX or send ane-mail to info@[ ].com. You can get a Claim Form on the website, or have a Claim Form mailed toyou by calling 1-8XX-XXX-XXXX.Do not call the Court or any Judge’s office to get more information about the E&PD Settlement. If youhave questions, please visit the website or call 1-8XX-XXX-XXXX. QUESTIONS? CALL 1-8XX-XXX-XXXX OR VISIT WWW.[ ].COM 21
  • 217. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 134 of 206 Mailing Envelope
  • 218. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 135 of 206 PRESORTED FIRST-CLASS MAIL US POSTAGE PAID CITY, ST PERMIT # 000Notice Administrator for U.S. District CourtPost Office Box NNNNCity, ST NNNNN-NNNN 123456789 John Q. Doe 1234 Main St. City, ST 00000 Horizon oil spill, you could because of the Deepwater If you had economic loss get money from a class or property damage action settlement. DEEPWATER HORIZON Economic and Property Damages Settlement
  • 219. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 136 of 206 Attachment 1B: Email Notice
  • 220. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 137 of 206To: [email address]From: administrator@[ ].com [Notice Administrator for U.S. District Court]Reply To: info@[ ].com [Deepwater Horizon Settlement]Subject: Court-Directed Legal Notice about Deepwater Horizon Economic and PropertyDamages SettlementPara obtener una notificación en español, póngase en contacto con nosotros o visite nuestra sitio www.[ ].com[Vietnamese call out here.]Legal NoticeIf you had economic loss or property damage because of theDeepwater Horizon oil spill, you could get money from a classaction settlement.If you have economic loss or property damage because of the Deepwater Horizon oil spill, you could get moneyfrom a class action settlement with BP Exploration & Production Inc. and BP America Production Company(“BP”). Go to www.[ ].com (embedded link) for more information, including information on how to filea claim.Who is Included in the Economic & Property Damages Settlement?You have received this notice because you have been identified as a potential Economic and Property DamagesSettlement Class Member. The Economic and Property Damages (“E&PD”) Settlement Class includes people,businesses, other entities, and properties in the states of Louisiana, Alabama and Mississippi, and certaincounties in Texas and Florida, that were harmed by the oil spill. The website www.[ ].com (embeddedlink) has detailed descriptions and maps to help you determine whether a geographic location may be includedin the E&PD Settlement. Additionally, you can call [1-8XX-XXX-XXXX] or e-mail info@[ ].com tofind out if a geographic location is included.What does the Economic & Property Damages Settlement Provide?The E&PD Settlement makes payments for the following types of claims: (1) Seafood Compensation, (2)Economic Damage, (3) Loss of Subsistence, (4) Vessel Physical Damage, (5) Vessels of Opportunity CharterPayment, (6) Coastal Real Property Damage, (7) Wetlands Real Property Damage, and (8) Real Property SalesDamage. There is no limit on the total dollar amount of the E&PD Settlement; all qualified claims will be paid.How to Get Benefits from the Economic & Property Damages SettlementYou need to submit a Claim Form to request a payment. You can get a copy of the various Claim Forms byvisiting the website or by calling 1-8XX-XXX-XXXX. Claims can be submitted online or by mail. If you havequestions about how to file your claim, you should call the toll-free number for assistance.The deadline to submit most claims will be April 22, 2014 or six months after the E&PD Settlement becomeseffective (i.e., after the Court grants “final approval” and any appeals are resolved), whichever is later. SeafoodCompensation claims must be submitted no later than 30 days after final approval of the settlement (regardless of
  • 221. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 138 of 206appeals). Actual claim filing deadlines will be posted on the website as they become available. Valid claimswill be paid as they are approved, beginning on Month 00, 2012. It is highly recommended that E&PDSettlement Class Members complete and submit their claim forms promptly. Please read the Medical BenefitsSettlement notice because you may also be eligible for benefits from that settlement.Your Other OptionsIf you do not want to be legally bound by the E&PD Settlement, you must opt out (exclude yourself) by Month00, 2012 or you won’t be able to sue BP over certain economic and property damages claims. If you stay in theE&PD Settlement, you may object to it by Month 00, 2012. The Detailed Notice (hyperlink to DetailedNotice) explains how to exclude yourself or object.The Court will hold a hearing on Month 00, 2012 to consider whether to approve the E&PD Settlement. Youor your own lawyer may ask to appear and speak at the hearing at your own cost. The Court will also considerClass Counsel fees, costs, and expenses including an interim payment of $75 million and additional awardsequal to 6% of class claims and benefits paid, and a maximum of $600 million. Class Counsel fees, costs andexpenses under the Economic and Property Damages Settlement Agreement and the Medical BenefitsSettlement Agreement jointly cannot exceed $600 million. Class members’ payments will not change if theCourt approves the payment of Class Counsel fees under either settlement, because BP will separately pay theseamounts.For more information and a Claim Form, visit www.[ ].com (embedded link) or call toll-free: 1-8XX-XXX-XXXX. This notice does not provide any information related to the separate Medical Benefits Settlement also reached related to the Deepwater Horizon oil spill. For more information about the Medical Benefits Settlement, and to determine whether your rights are affected by that settlement, or whether you are eligible for a payment under that settlement, visit www.[ ].com (embedded link) or call 1-8XX-XXX-XXXX.SOURCE: United States District Court for the Eastern District of LouisianaE&PD Settlement E-mail Notice, Page 2 of 2
  • 222. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 139 of 206 Attachment 1C: Publication Notice
  • 223. Legal notice Legal notice Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 140 of 206 Deepwater Horizon Oil Spill Settlements Deepwater Horizon Oil Spill Settlements Economic and Property Damages Settlement Medical Benefits Settlement Providing Money to Individuals and Businesses Providing Benefits to Clean-Up Workers and Certain Gulf Coast Residents If you have economic loss or property damage number for assistance.because of the Deepwater Horizon oil spill, you The deadline to submit most claims will be Aprilcould get money from a class action settlement 22, 2014 or six months after the E&PD Settlementwith BP Exploration & Production Inc. and BP becomes effective (i.e., after the Court grantsAmerica Production Company (“BP”). Go to “final approval” and any appeals are resolved),www.[ ].com for more information, including whichever is later. Seafood Compensation claimsinformation on how to file a claim. must be submitted no later than 30 days after final approval of the settlement (regardless of appeals). Who is Included in the Economic & Actual claim filing deadlines will be posted on the Property Damages Settlement? website as they become available. Valid claims The Economic and Property Damage (“E&PD”) will be paid as they are approved, beginning onSettlement Class includes people, businesses, other Month 00, 2012. It is highly recommended thatentities, and properties in the states of Louisiana, E&PD Settlement Class Members complete andAlabama and Mississippi, and certain counties in submit their claim forms promptly. Please readTexas and Florida, that were harmed by the oil the Medical Benefits Settlement notice becausespill. The website www.[ ].com has detailed you may also be eligible for benefits from thatdescriptions and maps to help you determine settlement.whether a geographic location may be included inthe E&PD Settlement. Additionally, you can call Your Other Options?1-8XX-XXX-XXXX or e-mail info@[ ].comto find out if a geographic location is included. If you do not want to be legally bound by the E&PD Settlement, you must opt out or exclude What does the Economic & Property yourself by Month 00, 2012 or you won’t be able to Medical Benefits Settlement publication notice text. Damages Settlement Provide? sue BP over certain economic and property damage claims. If you stay in the E&PD Settlement, you The E&PD Settlement makes payments forthe following types of claims: (1) Seafood may object to it by Month 00, 2012. The DetailedCompensation, (2) Economic Damage, (3) Loss Notice explains how to exclude yourself or object.of Subsistence, (4) Vessel Physical Damage, (5) The Court will hold a hearing on Month 00,Vessels of Opportunity Charter Payment, (6) 2012 to consider whether to approve the E&PDCoastal Real Property Damage, (7) Wetlands Real Settlement. You or your own lawyer may ask toProperty Damage, and (8) Real Property Sales appear and speak at the hearing at your own cost.Damage. There is no limit on the total dollar The Court will also consider Class Counsel fees,amount of the E&PD Settlement; all qualified costs, and expenses including an interim paymentclaims will be paid. of $75 million and additional awards equal to 6% of class claims and benefits paid, and a maximum How to Get Benefits from the Economic of $600 million. Class Counsel fees, costs and & Property Damages Settlement expenses under the Economic and Property You need to submit a Claim Form to request Damages Settlement Agreement and the Medicala payment. You can get a copy of the various Benefits Settlement Agreement jointly cannotClaim Forms by visiting the website or by calling exceed $600 million. Class members’ payments1-8XX-XXX-XXXX. Claims can be submitted will not change if the Court approves the paymentonline or by mail. If you have questions about of Class Counsel fees under either settlement,how to file your claim, you should call the toll-free because BP will separately pay these amounts. www.[ ].com 1-8XX-XXX-XXXX www.[ ].com 1-8XX-XXX-XXXX
  • 224. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 141 of 206 Attachment 1D: Television Notice Storyboard
  • 225. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 142 of 206Deepwater Horizon Court‐Supervised Settlement Program In re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179 30 Second Television Spot OFF-CAMERA NARRATOR: If you or were harmed by the Deepwater you may be able to get payments and your business Horizon Oil Spill, other benefits 1. Wide shot of beach and clouds. 2. Men in marshy area. 3. Small beach house. from two separate legal settlements. One settlement provides payments for economic and property damage. 4. Fisherman in front of boat. 5. Man at desk in marina. 6. Hotel housekeeper making bed. *Final images may vary depending on photo licensing details, but will be content equivalent.
  • 226. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 143 of 206Deepwater Horizon Court‐Supervised Settlement Program In re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179 30 Second Television Spot The other provides payments and To get detailed information and claim go to www.[ ].com benefits for medical claims. forms, 7. Medium Shot female doctor with patient. 8. People working in restaurant. 9. Man in front of fishing boat, other boats in background. or call 8XX-XXX- XXXX. 10. Wide shot of man with clipboard next to 11. Sunset with moorings in foreground. freighter *Final images may vary depending on photo licensing details, but will be content equivalent.
  • 227. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 144 of 206 Attachment 1E: Television PSA
  • 228. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 145 of 206Front Cover TextDeepwater Horizon Oil Spill Litigation - Class Action NoticeCourt-approved PSAs about two separate settlements related to the Deepwater Horizon Oil Spill - onesettlement addressing economic and property damage claims, and a separate settlement addressingmedical claims. People and businesses across the Gulf Coast region may be eligible for payments andother benefits from one or both of the two settlements.Please air these important announcements alerting those affected about their rights, including theirright to be excluded from the case, by Month DD, 20YY.Back Cover TextDeepwater Horizon Oil Spill Litigation - Class Action NoticeDear Public Service Director:Two separate settlements have been reached related to the Deepwater Horizon Oil Spill - onesettlement addressing economic and property damage claims, and a separate settlement addressingmedical claims. People and/or businesses across the Gulf Coast region may be eligible for payments andother benefits from one or both of the two settlements.This message is important because the people and/or businesses affected have various rights, includingthe right to file claims, request exclusion from or object to either or both settlements. The PSAs informpeople and businesses of their legal rights and how to obtain additional information.Please air these spots as soon as possible, and continue to do so until Month DD, 20YY. Thank you fortaking the time to consider sharing these PSAs with your audience.Sincerely,Notice AdministratorInside Text30 second TV PSA:People and/or businesses across the Gulf Coast region may be eligible for payments and other benefitsfrom two separate class action settlements related to the Deepwater Horizon Oil Spill.One settlement provides payments for some types of economic and property damage claims. The othersettlement provides payments and other benefits for certain medical claims.To get claim forms and notices, go to www.[ ].com or call 8XX-XXX-XXXX.
  • 229. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 146 of 206 Attachment 1F: Radio Notice Script
  • 230. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 147 of 206 :30 Radio Script If you or your business were harmed by the Deepwater Horizon Oil Spill, you may be able to get payments and other benefits from two separate legal settlements. One settlement provides payments for economic and property damage. The other provides payments and benefits for medical claims. To get detailed information and claim forms go to www.[ ].com or call 8XX-XXX-XXXX.
  • 231. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 148 of 206 Attachment 1G: Internet Banner Notices
  • 232. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 149 of 206Deepwater Horizon Court-Supervised Settlement ProgramIn re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179Notice Internet Banner LEGAL NOTICE FROM U . S . COURT If you or your business were harmed by the Deepwater Horizon oil spill, you may be able to get benefits from two separate legal settlements. www.[ ].com DEEPWATER HORIZON SETTLEMENTS Economic and Property Damages Settlement: Provides payments to people and businesses. Medical Benefits Settlement: Provides payments and other benefits. www.[ ].com LEGAL NOTICE FROM U.S. COURT If you or your business were harmed by the Deepwater Horizon oil spill, you may be able to get benefits from two separate legal settlements. www.[ ].com DEEPWATER HORIZON SETTLEMENTS Economic & Property Damages Settlement: Provides payments to people and businesses. Medical Benefits Settlement: Provides payments and other benefits. www.[ ].com
  • 233. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 150 of 206 Attachment 1H: Notice Website (screen captures)
  • 234. Deepwater Horizon Court-Supervised Settlement Program 6266-2 Filed 04/18/12 Page 151 of 206 Case 2:10-md-02179-CJB-SS DocumentIn re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179Notice Website PortalHome Page Note: Claim Administrator buttons appear at the bottom of all pages. Formatting Note: Content will be updated to conform to final notice document submitted to Court. -- 1 --
  • 235. Deepwater Horizon Court-Supervised Settlement Program 6266-2 Filed 04/18/12 Page 152 of 206 Case 2:10-md-02179-CJB-SS DocumentIn re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179Notice Website PortalKey Dates Page -- 2 --
  • 236. Deepwater Horizon Court-Supervised Settlement Program 6266-2 Filed 04/18/12 Page 153 of 206 Case 2:10-md-02179-CJB-SS DocumentIn re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179Notice Website PortalEconomic and Property Damage Notice Page -- 3 --
  • 237. Deepwater Horizon Court-Supervised Settlement Program 6266-2 Filed 04/18/12 Page 154 of 206 Case 2:10-md-02179-CJB-SS DocumentIn re: Oil Spill by the Oil Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010, MDL 2179Notice Website PortalMedical Benefits Notice Page -- 4 --
  • 238. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 155 of 206 Attachment 1I: Informational Release
  • 239. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 156 of 206COURT ORDERED NOTICE PROGRAM ABOUT TWO DEEPWATER HORIZON OILSPILL SETTLEMENTS IS INITIATEDNew Orleans, LA, Month DD, 20YY / PR Newswire / -- A notification effort ordered by theUnited States District Court for the Eastern District of Louisiana is beginning today to notifypeople, businesses and other entities about two separate proposed settlements with BPExploration & Production Inc. and BP America Production Company (“BP”) related to theDeepwater Horizon oil spill. BP has estimated the cost of the proposed settlement to beapproximately $7.8 billion. The total amount BP will pay to settle valid claims is uncapped, andthe ultimate cost will depend on the actual outcomes of the court-supervised claims processes.People may be affected by one or both settlements. In each settlement, Class Members haveseparate legal rights and options, including submitting claims for benefits, opting out orobjecting to each settlement.The Economic and Property Damages Settlement (or “E&PD Settlement”) includes people,businesses and other entities who live, work, conduct business operations and/or own/leaseproperty in the states of Louisiana, Mississippi, and Alabama, along with specified Texas andFlorida counties. The E&PD Settlement generally covers the following types of claims: 1)seafood compensation; 2) economic loss; 3) loss of subsistence use; 4) vessel physical damage;5) Vessels of Opportunity charter payment; 6) damage to coastal real property; 7) damage towetlands real property; and 8) real property sales damage related to sales of certain Gulf Coastresidences. In addition to compensation for actual damage, payments to eligible claimants mayinclude a multiplier related to unknown future damage.The Medical Benefits Settlement (or “Medical Settlement’) includes “Clean-Up Workers” andpeople who resided during specified periods in 2010 in coastal areas (Zone A) and wetlandsareas (Zone B). Medical Settlement benefits include (a) payments for Specified PhysicalConditions including reimbursement of hospital expenses, (b) a 21-year Periodic MedicalConsultation Program, and (c) a $105 million Gulf Region Health Outreach Program, availableto all Gulf residents, Class Members and non-Class Members alike, in order to strengthenhealthcare capacity and increase health literacy throughout the region.Detailed information on the two settlements can be found at the settlement website,www.[ ].com. The website has detailed maps that allow users to see if a geographiclocation may be included within one or more zones.Notices will be mailed to known potential Class Members and are scheduled to appear inthousands of media outlets over the next 60 days in English, Spanish and Vietnamese. Noticesare to appear in Gulf Coast daily newspapers, print publications, television and radio spots andon Internet websites. A parallel nationwide media effort includes well-read consumermagazines, trade publications and highly-trafficked Internet websites.The Court has appointed [______] as Proposed Settlement Class Counsel to represent each of theSettlement Classes.© 2012 Hilsoft Notifications
  • 240. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 157 of 206Class Members can submit a claim to either or both Settlements, or they can ask to be excludedfrom, or object to, either or both Settlements. The deadline to object to either or both settlementsis [_______]. The deadline to request exclusion from either or both settlements is [_______].The deadline to submit most E&PD claims will be April 22, 2014 or six months after the E&PDSettlement becomes effective (i.e., after the Court grants “final approval” and any appeals areresolved), whichever is later. E&PD Seafood Compensation claims must be submitted no laterthan 30 days after final approval of the Settlement (regardless of appeals). The deadline tosubmit Medical Benefits claims is one year after the Medical Settlement becomes effective (i.e.,after the Court grants “final approval” and any appeals are resolved). Exact claim filingdeadlines will be posted on the website as they become available.Eligible E&PD Settlement claims will be paid on a rolling basis and E&PD Settlement claimantsmay receive payments before the Court considers whether to grant final approval. MedicalSettlement benefits will not be issued until after the Court grants final approval and any appealsare resolved.A toll-free number, [1-8XX-XXX-XXXX], has been established in the case known as In re: OilSpill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL No.2179, along with a website, [www.[ ].com], where notices, each Settlement Agreement andother documents may be obtained.###/CONTACT: Press Only: Class Counsel: [__________________________]BP: [ ]./URL: [www.[ ].com]/SOURCE: United States District Court for the Eastern District of Louisiana© 2012 Hilsoft Notifications 2
  • 241. Case 2:10-md-02179-CJB-SS Document 6266-2 Filed 04/18/12 Page 158 of 206Attachment 2: American Profile, Parade, and USA Weekend Newspaper List
  • 242. Case 2:10-md-02179-CJB-SSProfile, Parade and USA Weekend Newspaper List American Document 6266-2 Filed 04/18/12 Page 159 of 206 Deepwater Horizon Oil Spill Litigation Economic and Property DamageState City Newspaper American Profile Parade USA Weekend Frequency Duplication SourceAlabama Albertville The Sand Mountain Reporter 1 1 January 2012Alabama Alexander City Outlook 1 1 1 1 January 2012Alabama Alexander City The Dadeville Times 1 1 January 2012Alabama Andalusia The Andalusia Star-News 1 1 January 2012Alabama Anniston Star 1 1 January 2012Alabama Athens The News Courier 1 1 1 1 2 January 2012Alabama Atmore The Atmore Advance 1 1 January 2012Alabama Bay Minette The Baldwin Times 1 1 January 2012Alabama Birmingham News 1 1 January 2012Alabama Brewton The Brewton Standard 1 1 January 2012Alabama Clanton The Clanton Advertiser 1 1 January 2012Alabama Cullman Times 1 1 1 1 2 January 2012Alabama Daphne The Bulletin 1 1 January 2012Alabama Decatur The Decatur Daily 1 1 January 2012Alabama Demopolis The Demopolis Times 1 1 January 2012Alabama Dothan Eagle 1 1 January 2012Alabama Eufaula The Eufaula Tribune 1 1 January 2012Alabama Fairhope Fairhope Courier 1 1 January 2012Alabama Fayette Pickens County Herald 1 1 January 2012Alabama Fayette TheTimes-Record 1 1 January 2012Alabama Florence-Sheffield-Tuscumbia-Muscle Times Daily 1 1 January 2012Alabama Foley Elberta-Lillian Ledger 1 1 January 2012Alabama Foley The Foley Onlooker 1 1 January 2012Alabama Fort Payne The Times-Journal 1 1 January 2012Alabama Gadsden Times 1 1 January 2012Alabama Gardendale North Jefferson News 1 1 1 1 January 2012Alabama Greenville The Greenville Advocate 1 1 January 2012Alabama Gulf Shores The Islander 1 1 January 2012Alabama Hartselle The Hartselle Enquirer 1 1 January 2012Alabama Huntsville Times 1 1 January 2012Alabama Jasper Mountain Eagle 1 1 1 1 January 2012Alabama Leeds The Leeds News 1 1 January 2012Alabama Madison Madison County Record 1 1 January 2012Alabama Mobile Register 1 1 January 2012Alabama Montgomery Advertiser 1 1 January 2012Alabama Opelika/Auburn News 1 1 January 2012Alabama Ozark The Southern Star 1 1 January 2012Alabama Pell City St. Clair News-Aegis 1 1 January 2012Alabama Robertsdale The Independent 1 1 January 2012Alabama Russellville Franklin County Times 1 1 January 2012Alabama Scottsboro The Daily Sentinel 1 1 January 2012Alabama Selma Times Journal 1 1 January 2012Alabama Talladega Daily Home 1 1 January 2012Alabama Troy The Messenger 1 1 January 2012Alabama Tuscaloosa News 1 1 January 2012Alabama Wetumpka The Wetumpka Herald 1 1 January 2012Alaska Anchorage Daily News 1 1 January 2012Alaska Fairbanks News-Miner 1 1 January 2012Alaska Juneau Empire 1 1 January 2012Alaska Kenai Peninsula Clarion 1 1 January 2012Arizona Benzon San Pedro Valley News - Sun 1 1 January 2012Arizona Bullhead City Mohave Valley Daily News 1 1 1 1 January 2012Arizona Casa Grande Dispatch 1 1 1 1 January 2012Arizona Chino Valley Chino Valley Review 1 1 January 2012Arizona Cottonwood The Bugle 1 1 January 2012Arizona Cottonwood The Verde Independent 1 1 1 1 January 2012Arizona Douglas The Daily Dispatch 1 1 January 2012
  • 243. Case 2:10-md-02179-CJB-SSProfile, Parade and USA Weekend Newspaper List American Document 6266-2 Filed 04/18/12 Page 160 of 206 Deepwater Horizon Oil Spill Litigation Economic and Property DamageState City Newspaper American Profile Parade USA Weekend Frequency Duplication SourceArizona Flagstaff Arizona Daily Sun 1 1 January 2012Arizona Gilbert Chandler Tribune 1 1 January 2012Arizona Globe Arizona Silver Belt 1 1 January 2012Arizona Green Valley Green Valley News & Sun 1 1 January 2012Arizona Green Valley The Sahuarita News and Sun 1 1 January 2012Arizona Holbrook Holbrook Tribune - News 1 1 January 2012Arizona Kingman Daily Miner 1 1 1 1 January 2012Arizona Lake Havasu City Todays News-Herald 1 1 1 1 January 2012Arizona Mesa The Tribune 1 1 January 2012Arizona Nogales Nogales Internationals 1 1 January 2012Arizona Parker Parker Pioneer 1 1 January 2012Arizona Phoenix Ahwatukee Foothills News 1 1 January 2012Arizona Phoenix La Voz 1 1 January 2012Arizona Phoenix Republic & Sunday Select 1 1 January 2012Arizona Prescott Daily Courier 1 1 1 1 January 2012Arizona Prescott Valley Prescott Valley Tribune 1 1 January 2012Arizona Safford Eastern Arizona Courier 1 1 1 1 January 2012Arizona Show Low White Mountain Independent 1 1 January 2012Arizona Sierra Vista Herald 1 1 1 1 January 2012Arizona Sun City Glendale/Peoria Today 1 1 January 2012Arizona Sun City News-Sun 1 1 1 1 January 2012Arizona Sun City Surprise Today 1 1 January 2012Arizona Tucson Star 1 1 1 1 January 2012Arizona Wickenburg Wickenburg Sun 1 1 January 2012Arizona Willcox Arizona Range News 1 1 January 2012Arizona Williams Williams-Grand Canyon News 1 1 January 2012Arizona Yuma Daily Sun 1 1 January 2012Arkansas Ashdown Little River News 1 1 January 2012Arkansas Atkins Atkins Chronicle 1 1 January 2012Arkansas Atkins The Dover Times 1 1 January 2012Arkansas Batesville Batesville Daily Guard 1 1 January 2012Arkansas Benton The Benton Courier 1 1 January 2012Arkansas Bentonville The Weekly Vista 1 1 January 2012Arkansas Berryville Carroll County News 1 1 January 2012Arkansas Blytheville Courier News 1 1 January 2012Arkansas Booneville Booneville Democrat 1 1 January 2012Arkansas Camden Camden News 1 1 January 2012Arkansas Charleston Charleston Express 1 1 January 2012Arkansas Cherokee Village The Villager Journal 1 1 January 2012Arkansas Conway Log Cabin Democrat 1 1 1 1 January 2012Arkansas Danville Yell County Record 1 1 January 2012Arkansas El Dorado News-Times 1 1 1 1 January 2012Arkansas Fayetteville Democrat-Gazette 1 1 1 1 January 2012Arkansas Fort Smith Times Record 1 1 January 2012Arkansas Greenwood Greenwood Democrat 1 1 January 2012Arkansas Harrison Times 1 1 1 1 January 2012Arkansas Heber Springs Cleburne County Sun-Times 1 1 January 2012Arkansas Helena Helena-West Helena Daily World 1 1 January 2012Arkansas Hope Hope Star 1 1 January 2012Arkansas Hope The Daily Siftings Herald 1 1 January 2012Arkansas Hot Springs Sentinel-Record 1 1 1 1 January 2012Arkansas Jonesboro Sun 1 1 January 2012Arkansas Little Rock Democrat-Gazette 1 1 January 2012Arkansas Lonoke Democrat 1 1 January 2012Arkansas Magnolia Banner-News 1 1 January 2012Arkansas Malvern Malvern Daily Record 1 1 January 2012Arkansas Manila Northeast Arkansas Town Crier 1 1 January 2012
  • 244. Case 2:10-md-02179-CJB-SSProfile, Parade and USA Weekend Newspaper List American Document 6266-2 Filed 04/18/12 Page 161 of 206 Deepwater Horizon Oil Spill Litigation Economic and Property