Opinion
Case No. 00-CV-00005-DT, (Settlement Facility Matters).
May 23, 2005
Deborah E. Greenspan, Esq., Dickstein Shapiro Morin Oshinsky LLP, Washington, DC, FOR DOW CORNING CORPORATION.
Dianna Pendleton-Dominguez, Esq. St. Marys, OH, FOR THE CLAIMANTS' ADVISORY COMMITTEE.
AGREED ORDER REGARDING RESCISSION OF OPT-OUT OF KOREAN CLAIMANTS
Section 3.02(c)(ii) of Annex A to the Settlement Facility and Fund Distribution Agreement (the "Settlement Facility Agreement") provides that Personal Injury Claimants who elected litigation shall have the right to rescind the opt-out election but that such a revocation must be postmarked no later than thirty (30) days after the date of the letter from the Settlement Facility-Dow Corning Trust (SF-DCT) acknowledging receipt of the election. The Claims Administrator has discretion to accept revocations postmarked after the thirty (30)-day deadline if they were received within a reasonable amount of time thereafter as determined by the Claims Administrator and provided such acceptance will not be detrimental to other Settling Personal Injury Claimants. See id.
According to the SF-DCT, Counsel for Korean Claimants submitted 495 timely Participation Forms electing to reject the settlement option and instead to litigate. After the Korean Claimants submitted the forms electing the litigation option, the SF-DCT sent to those claimants the standard letter giving the claimants 30 days in which to change that decision. Also after the Korean Claimants submitted the forms electing the litigation option, although possibly before the acknowledgment letter was sent by the SF-DCT or received by the Korean Claimants, counsel for Korean Claimants submitted additional Participation Forms electing the settlement option for 85 of these same individuals. The SF-DCT treated these supplemental forms as a rescission of the original opt-out forms. According to the Motion for Rescission of Opt-Put [sic] of Korean Claimants, on or about February 24, 2005 counsel for Korean Claimants submitted rescission forms for 493 claimants.
Counsel for Korean Claimants attributes the failure to timely respond to the acknowledgment letter to inherent problems in Korean mail service. Counsel has advised Debtor's Representatives that Korean mail delivery is unreliable and, as a result, he did not receive the acknowledgment letter from the SF-DCT allowing rescission of the opt-outs in a timely manner. In light of such mail service issues in Korea, the Claims Administrator could have accepted the Korean claimants' opt-out rescissions pursuant to the Plan even though they were postmarked after the thirty (30)-day deadline since, according to Korean Claimants' counsel, the rescissions were submitted immediately after receipt of the acknowledgment letter from the SF-DCT. See Section 3.02(c)(ii).
Therefore, in light of these unique circumstances and the Plan provision permitting late rescission under certain limited circumstances, the Debtor's Representatives and the Claimants' Advisory Committee do not object to permitting the Korean Claimants to rescind the opt-out elections.
This Court hereby ORDERS that the rescission of opt-out elections of Korean Claimants shall be approved by the Court.