IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Case 1:90-cv-00181-JLK Document 2459 Filed 03/30/17 USDC Colorado Page 7 of 36 3 Settlement Agreement would be the final

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 90-cv-00181-JLK

MERILYN COOK, RICHARD and SALLY BARTLETT, and WILLIAM and DELORES SCHIERKOLK,

Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMPANY,

Defendants.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR

FINAL APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION

Case 1:90-cv-00181-JLK Document 2459 Filed 03/30/17 USDC Colorado Page 1 of 36

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. BACKGROUND .................................................................................................................3

III. THE SETTLEMENT AGREEMENT ...............................................................................10

IV. THE PROPOSED SETTLEMENT SHOULD BE FINALLY APPROVED ....................14

A. The Settlement Is Fair, Reasonable, and Adequate and Should Be Approved................................................................................................................14

1. The Proposed Settlement Was Fairly And Honestly Negotiated ...............16

2. Serious Disputed Questions of Law and Fact Remain ...............................17

3. The Value of an Immediate Recovery Outweighs the Possibility of Future Relief After Further Litigation .......................................................18

4. Plaintiffs Believe the Settlement is Fair and Reasonable ..........................20

5. The Long Duration of This Litigation and Aging Class Members Further Supports Approval ........................................................................21

6. The Class’s Overwhelmingly Positive Reaction to the Settlement Supports Approval .....................................................................................21

V. THE COURT SHOULD APPROVE PLAINTIFFS’ PROPOSED PLAN OF ALLOCATION ..................................................................................................................27

VI. CONCLUSION ..................................................................................................................29


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TABLE OF AUTHORITIES

Cases Page(s)

Alvarado Partners v. Mehta, L.P. 723 F. Supp. 540 (D. Colo. 1989) .................................................................................... 15, 20

Belote v. Rivet Software, Inc., No. 12-CV-02792-WYD-MJW, 2014 WL 3906205 (D. Colo. Aug. 11, 2014) ............... 15, 27

Cook v. Rockwell Int’l, 133 S. Ct. 22 (U.S. Jun. 25, 2012) ............................................................................................ 6

Cook v. Rockwell Int’l, 13 F. Supp. 3d 1153 (D. Colo. 2014) ....................................................................................... 6

Cook v. Rockwell Int’l, 151 F.R.D. 378 (D. Colo. 1993) ........................................................................................... 4, 5

Cook v. Rockwell Int’l, 564 F. Supp. 2d 1189 (D. Colo. 2008) ..................................................................................... 5

Cook v. Rockwell Int’l, 618 F.3d 1127 (10th Cir. 2010) ............................................................................................ 5, 6

Cook v. Rockwell Int’l, 790 F.3d 1088 (10th Cir. 2015) ................................................................................................ 7

Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ................................................................................................ 16

DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935 (10th Cir. 2005) ................................................................................................ 26

Diaz v. Romer, 801 F. Supp. 405 (D. Colo. 1992) .......................................................................................... 14

Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010) ................................................................................................... 14

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ............................................................................................................... 23

Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993) .......................................................................................... 14, 15

Grady v. de Ville Motor Hotel, Inc., 415 F.2d 449 (10th Cir. 1969) ................................................................................................ 14

Gould v. Alleco, Inc., 883 F.2d 281 .............................................................................................................................22


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Heller v. Quovadx, Inc., 245 F. App’x 839 (10th Cir. 2007) ......................................................................................... 22

Hershey v. ExxonMobil Oil Corp., No. 07-CV-1300-JTM, 2012 WL 5306260 (D. Kan. Oct. 26, 2012) ..................................... 26

In re Crocs, Inc. Sec. Litig., No. 07-CV-02351-PAB-KLM, 2013 WL 4547404 (D. Colo. Aug. 28, 2013) ...................... 19

In re Crocs, Inc. Sec. Litig., 306 F.R.D. 672 (D. Colo. 2014) ............................................................................................. 27

In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y. 2009) ............................................................................................ 17

In King Res. Co. Sec. Litig., 420 F. Supp. 610 (D. Colo. 1976) .................................................................................... 14, 19

In re Motor Fuel Tempure Sales Practices Litig., No. 07-MD-1840-KHV, 2015 WL 5010048, (D. Kan. Aug. 21, 2015) ................................. 22

In re New Mexico Nat. Gas Antitrust Litig., 607 F. Supp. 1491 (D. Colo. 1984) .............................................................................. 2, 15, 27

In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 625 F. Supp. 2d 1133 (D. Colo. 2009) ................................................................................... 23

In re Qwest Commc’ns Int’l, Inc. Sec. Litig., No. 01-cv-01451, 2006 U.S. Dist. LEXIS 71039 (D. Colo. Sept. 28, 2006) ......................... 15

In re Toys “R” Us Antitrust Litig., 191 F.R.D. 347 (E.D.N.Y 2000) ............................................................................................. 17

Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) ............................................................................................ 17

Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322 (10th Cir. 1984) ........................................................................................ passim

Law v. Nat’l Collegiate Athletic Ass’n, 108 F. Supp. 2d 1193 (D. Kan. 2000) ..................................................................................... 27

Lucas v. Kmart Corp., 234 F.R.D. 688 (D. Colo. 2006) ...................................................................................... passim

Lucas v. Kmart Corp., No. 99-cv-01923, 2006 U.S. Dist. LEXIS 51439 (D. Colo. Jul. 27, 2006) ............................ 14

Make A Difference Found., Inc. v. Hopkins, No. 10-CV-00408-WJM-MJW, 2012 WL 917283 (D. Colo. Mar. 19, 2012) ................. 15, 27


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Marcus v. Kansas Dept. of Revenue, 209 F. Supp. 2d 1179 (D. Kan. 2002) ..................................................................................... 20

Mohammed v. Ells, No. 12-CV-1831-WJM-MEH, 2014 WL 4212687 (D. Colo. Aug. 26, 2014) ................. 15, 27

Nieberding v. Barrette Outdoor Living, Inc., No. 12-CV-2353-DDC-TJJ, 2015 WL 1645798 (D. Kan. Apr. 14, 2015) ............................. 19

Oppenlander v. Stand. Oil Co. (Indiana), 64 F.R.D. 597 (D. Colo. 1974) ................................................................................... 15, 20, 27

Ponca Tribe of Indians of Oklahoma v. Contl. Carbon Co., No. 05-445 (C), 2009 WL 2836508 (W.D. Okla. Jul. 30, 2009) ...................................... 15, 27

Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10th Cir. 2002) ...................................................................................... passim

Seiffer v. Topsy’s Int’l, Inc., 70 F.R.D. 622 (D. Kan. 1976) ................................................................................................ 20

Smith v. MCI Telecomms. Corp., No. 87-2110- EEO, 1993 WL 142006 (D. Kan. Apr. 28, 1993) ............................................ 27

Sollenbarger v. Mountain States Tel. and Tel. Co., 121 F.R.D. 417 (D.N.M.1988) ............................................................................................... 23

Tennille v. W. Union Co., 785 F.3d 422 (10th Cir. 2015) ................................................................................................ 17

Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003 (D. Colo. 2014) ................................................................... 14, 15, 16, 27

Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273 (D. Colo. 1997) ................................................................................. 14, 15, 27

Williams v. First Nat’l Bank, 216 U.S. 582 (1910) ............................................................................................................... 14

Rules Fed. R. Civ. P. 23 ................................................................................................................... 17, 18 Fed. R. Civ. P. 23(b)(3) .................................................................................................................. 4 Fed. R. Civ. P. 23(c)(2)(B) .......................................................................................................... 23 Fed. R. Civ. P. 23(e)(1) ................................................................................................................ 22


I. INTRODUCTION

Class representatives Merilyn Cook, Richard and Sally Bartlett, and William and Delores

Schierkolk1 (collectively, “Plaintiffs” or “Class Representatives”) submit this Memorandum in

support of their Motion seeking: (a) final approval of a proposed Settlement Agreement between

Plaintiffs and Rockwell International Corporation (“Rockwell”) and The Dow Chemical

Company (“Dow”) (collectively, “Defendants”), dated May 18, 2016 (“Settlement Agreement”,

which is attached as Exhibit 1 and was previously filed at Doc. No. 2401); and (b) final approval

of the proposed Plan of Allocation of the Settlement Fund (which is attached as Exhibit 2, and

was previously filed at Doc. No. 2407-2).

The proposed $375 million Settlement is an extraordinary result for the Class.2 Indeed,

not one class member has objected to the fairness of the proposed Settlement3 following a

comprehensive notice program that included 28,179 individually mailed notices, plus an

extensive publication notice campaign that included: (1) an informational settlement website

(www.RockyFlatsSettlement.com) on which the Settlement Agreement itself, a copy of the

1 Delores Schierkolk is deceased, but William Schierkolk is her heir and representative. 2 The “Class”, “Settlement Class”, or “Property Class” includes all persons and entities who have not

previously opted out and who do not timely opt out of the class who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants’ affiliates, parents, and subsidiaries. See Order Certifying Settlement Class, Doc. No. 2396, at 1-2. The Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in Colorado; its boundary is portrayed in the map attached as the corrected Appendix A to the Order Certifying Settlement Class, Doc. No. 2396. See Order Granting Plaintiffs’ Unopposed Motion for Amendment or Correction of the Court’s Order Certifying Settlement Class, Doc. No. 2405.

The persons and entities who previously opted out, and thus excluded from the Settlement Class, are identified in the Report of Neutral Opt-Out Agent; Motion for Order and Payment of Fees; and Motion for Order Regarding Transition Procedures, filed on March 17, 2000 at Doc. No. 1148.

3 One Class Member objected to Plaintiffs’ motion for attorneys’ fees, costs and expenses. See Doc. No. 2445. We will respond to that objection separately. Also, another person objected to not being included in the Class, see Doc No. 2421, but as discussed below, non-Class members have no standing to object (and this individual did not object to the fairness of the Settlement itself in any event).


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mailed notice and claim form and other important Court documents are posted; (2) a toll-free

information phone line for Class members to call 24 hours a day, 7 days a week for more

information about the Settlement, including but not limited to requesting copies of the Notice

and Claim Form; (3) publication of the Court-approved short-form notice (“Summary Notice”) in

nationally circulated consumer magazines; (4) publication of the Court-approved Summary

Notice in Denver and Colorado newspapers; (5) television commercials aired nationwide on

cable networks; (6) television and radio commercials aired on network affiliate and cable

networks in the Denver DMA; (7) online display banner advertising with a nationwide reach; (8)

online video advertising with a nationwide reach; (9) advertising on mobile websites and

applications specifically targeted to reach potential Class members; (10) social media advertising

through Facebook and Twitter with a nationwide reach; (11) native advertising on premium

internet properties with a nationwide reach; (12) third party outreach to a community action

group, Downwinders, and medical providers asking them to share and distribute the Summary

Notice; and (13) a multimedia press release issued nationwide. See Declaration of Jeanne C.

Finegan, APR Concerning Implementation and Adequacy of Class Member Notification (Doc.

No. 2432), at e.g., ¶ 6. The reaction of the class to a settlement is a factor for courts to consider

in granting final approval. See, e.g., In re New Mexico Nat. Gas Antitrust Litig., 607 F. Supp.

1491, 1504, 1507-08 (D. Colo. 1984). The strong positive reaction of this Class to this

Settlement speaks loudly and decisively.

The Settlement Agreement was entered into after more than 26 years of litigation,

including a trial that lasted more than four months in 2005-06, two separate appeals in the Tenth

Circuit Court of Appeals, and two rounds of briefing in connection with two separate petitions

for writs of certiorari seeking review by the United States Supreme Court. Final approval of the


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Settlement Agreement would be the final chapter in what has been, by any measure, an

exceptionally long, complex, and hard-fought case that carried substantial risk for the Class.

Viewed in light of the long history of the litigation, and the risks that remained at the time of

settlement, a cash settlement of $375 million, which will substantially exceed the jury’s award of

compensatory damages even after deducting all costs, expenses and fees awarded,4 represents an

extraordinary result for the Class.

As Plaintiffs have previously advised the Court, Defendants have deposited the entire

$375 million in settlement consideration into the Court-approved Escrow Account. See Doc.

Nos. 2437, 2438.5

For the reasons set forth below, the Settlement Agreement meets and exceeds the

standards for final approval set forth by Rule 23 and the Tenth Circuit.

Plaintiffs also request that the Court grant final approval of the proposed Plan of

Allocation, which the Court previously preliminarily approved. See Doc. No. 2407, at ¶¶ 5-12.

Plaintiffs conferred with Defendants in accordance with the United States District Court

for the District of Colorado Local Rule 7.1(a). Defendants do not oppose this motion.

II. BACKGROUND

Plaintiffs filed their initial complaint more than 27 years ago, on January 30, 1990,

asserting Colorado nuisance and trespass claims, as well as claims under the federal Price-

Anderson Act (“PAA”), arising from Defendants’ releases of plutonium from the former Rocky

Flats nuclear weapons production plant. In 1993, the District Court certified the “Property

4 The jury awarded compensatory damages of $176,850,340 on Plaintiffs’ nuisance claims. See Jury

Verdict Form, Doc. No. 2117 at 24. 5 The Court previously appointed The Huntington National Bank as Escrow Agent. Order Appointing

The Huntington National Bank as Escrow Agent, Doc. No. 2418.


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Class” pursuant to Fed. R. Civ. P. 23(b)(3), defined as “[a]ll persons and entities owning an

interest (including mortgagee and other security interests) in real property situated within the

Property Class Area, exclusive of governmental entities, defendants, and defendants’ affiliates,

parents, and subsidiaries” as of June 7, 1989 (the day after the FBI raid of Rocky Flats). See

Cook v. Rockwell Int’l, 151 F.R.D. 378, 389 (D. Colo. 1993) (“Cook IV”).

Many years of contentious discovery and motion practice followed, involving multiple

motions to compel and even a four-day evidentiary hearing and contempt sanction against the

U.S. Department of Energy (“DOE”), Defendants’ indemnitor. All told, the parties exchanged

67 expert reports, participated in 45 expert depositions (spanning 53 days in total) and 151 lay

and 30(b)(6) witness depositions, and produced and reviewed over 800 boxes of documents.

Over the next decade and beyond, Defendants repeatedly sought to convince the Court to

overturn or modify its many rulings, including its class certification decision(s), and the parties

engaged in additional extensive motion practice and attempted to narrow the legal issues for

trial.6

After the Court denied Defendants’ motions for class decertification, motions for

summary judgment, and Daubert motions, and after extensive pretrial briefing on the proposed

jury instructions, motions in limine, and numerous other issues, the Court conducted a four-

month jury trial, which commenced on October 6, 2005. See Doc. No. 1495. During the trial,

the jury heard testimony from five Class Representatives, 15 lay witnesses, and 19 experts, plus

two witnesses who testified by deposition designation, and saw hundreds of exhibits and

6 The history of this extraordinary case is summarized in more detail in the Declaration of Merrill G.

Davidoff in Support of Class Counsel’s Motion for An Award of Attorneys’ Fees, Reimbursement of Expenses, and Service Payments to Class Representatives, Doc. No. 2435-2 (the “Davidoff Declaration”), to say nothing of the 15 published opinions by this Court and two by the Tenth Circuit (all collected and previously submitted as Doc. No. 2435-12), together with many other unpublished opinions and orders.


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demonstratives.7 Davidoff Declaration, at ¶¶ 143-149, 162. After deliberating for seventeen

days, the jury returned a verdict on February 14, 2006, finding for Plaintiffs and the Class on

their nuisance and trespass claims and awarding compensatory damages to the Class for

properties in each of three categories—residential, commercial, and vacant land—and awarding

punitive damages against both Defendants. See Jury Verdict Form, Doc. No. 2117. For each of

the three categories of properties, the jury found a specific percentage diminution in value that

was caused by the nuisance and trespass: 53.03% for commercial properties; 7% for residential

properties; and 30% for vacant land. See id. at 24. With respect to Plaintiffs’ nuisance claims,

the jury found that Defendants caused a reduction in the aggregate value of the Class Properties

of $176,850,340. Id. at 15, 24. Based on their findings of diminished value for each property

category, the jury awarded 3.196% of the total compensable nuisance damages for commercial

properties; 81.537% for residential properties; and 15.267% for vacant land. See id. at 24.

After the trial, the District Court denied Defendants’ motions requesting that the District

Court enter judgment in favor of Defendants or order a new trial, and in 2008, the District Court

entered final judgment in favor of Plaintiffs. See Cook v. Rockwell Int’l, 564 F. Supp. 2d 1189

(D. Colo. 2008) (“Cook XIV”); Final Judgment, Doc. No. 2264.

Defendants appealed, and the Tenth Circuit Court of Appeals in 2010 vacated the

judgment. Adopting a new argument the Defendants raised for the first time on appeal, the

Tenth Circuit held that the PAA required Plaintiffs to prove additional and more severe harm

than would be required under Colorado state nuisance law. See Cook v. Rockwell Int’l, 618 F.3d

1127, 1153 (10th Cir. 2010) (“Cook Appeal I”). The Tenth Circuit vacated the award of punitive

7 One expert witness, Mr. Flynn, testified live but became ill during the trial and was unable to

continue. The Court allowed Plaintiffs to use deposition designations in lieu of his live testimony. Davidoff Decl. ¶ 144. In the totals above, only his live trial testimony is counted.


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damages and reversed the District Court’s class certification ruling in light of its holding that the

PAA required Plaintiffs to prove additional and more severe harm than required under Colorado

state nuisance law. Id. at 1149-52. The Tenth Circuit found, however, that “[t]he jury was

properly instructed on elements of a [state] nuisance claim as well as the definitions of

‘substantial’ and ‘unreasonable.’” Id. at 1145.

Plaintiffs then filed a petition for a writ of certiorari requesting that the United States

Supreme Court review Cook Appeal I, which was denied. 133 S. Ct. 22 (U.S. Jun. 25, 2012)

(No. 10-1377).

On remand, the District Court directed the parties to submit briefs about the issue of

whether Plaintiffs’ nuisance claims were preempted by the PAA. Plaintiffs argued that their

claims under Colorado nuisance law were not preempted, Defendants argued the opposite, and

this Court ruled in favor of Defendants, finding that Plaintiffs’ state law nuisance claims were

preempted by the PAA, and that Plaintiffs could not pursue their case other than by trying to

recover under the PAA (with the extra requirements imposed by the Tenth Circuit Court of

Appeals in Cook Appeal I). Cook v. Rockwell Int’l, 13 F. Supp. 3d 1153, 1160-61 (D. Colo.

2014) (“Cook XV”).

In order to facilitate an immediate appeal, Plaintiffs stipulated to judgment in favor of

Defendants and agreed not to pursue any claims under the Price-Anderson Act unless Cook

Appeal I were to be overturned or modified. See Doc. No. 2355-1. Plaintiffs then appealed this

Court’s preemption ruling to the Tenth Circuit, which reversed, holding that the PAA “does not

preempt and preclude a freestanding state law nuisance claim when a nuclear incident is alleged

but unproven,” and further determining that the Tenth Circuit in Cook Appeal I “did not

specifically preclude the district court from entering a new judgment predicated on an error-free


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state law nuisance verdict.” Cook v. Rockwell Int’l, 790 F.3d 1088, 1103 (10th Cir. 2015)

(“Cook Appeal II”). The Tenth Circuit remanded to this Court, directing the Court to “proceed to

judgment on the existing nuisance verdict promptly, consistent with resolving the outstanding

class action question, wary of arguments that have already been rejected or forfeited.” Id. at

1105.

Defendants subsequently filed a petition for certiorari seeking Supreme Court review of

Cook Appeal II, No. 15-791 (U.S. Dec. 17, 2015), and Plaintiffs filed an opposition and

conditional cross-petition seeking review of Cook Appeal I in the event the Supreme Court were

to accept review of Cook Appeal II. No. 15-911 (U.S. Jan. 15, 2016).

Despite the Tenth Circuit’s remand order, substantial legal obstacles and risks remained.

On August 4, 2015, Plaintiffs filed a Motion for Entry of Judgment for the nuisance verdict, and

filed a Corrected Motion for Entry of Judgment on August 26, 2015 and sought re-certification

of the class. Defendants vigorously opposed these motions. On September 10, 2015, Defendants

filed four separate briefs: (1) opposing class certification based on their argument that the injury

and damages evidence presented at trial was not sufficiently class-wide; (2) arguing that

allegedly applicable numerical federal nuclear standards conflicted with and preempted Colorado

tort law, precluding entry of judgment on the prior jury verdict; (3) arguing that the Tenth Circuit

had not addressed certain alleged trial errors involving admission of evidence that tainted the

jury’s verdict; and (4) disputing the Plaintiffs’ calculation of pre- and post-judgment interest.

See Doc. Nos. 2373, 2374, 2376, 2377. Also on September 10, 2015, Defendants filed a separate

“Motion re Standards” requesting that the Court set aside the jury verdict because the alleged

numerical federal nuclear standards discussed in “Part Two” of Defendants’ four-part opposition

briefing preempted any Colorado tort law duties of care. Doc. No. 2378, at 1. On October 23,


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2015, Plaintiffs opposed Defendants’ Motion re Standards and filed reply briefs addressing

Defendants’ oppositions to Plaintiffs’ Motion for Entry of Judgment. See Doc. Nos. 2381,

2382, 2383, 2384. The parties’ competing motions regarding the entry of judgment were fully

briefed and awaiting decision by the Court at the time the Settlement was reached.

Following Cook Appeal II, the parties engaged in settlement discussions with the

assistance of a mediator, the Honorable Layn Phillips, a former United States District Judge.

After months of extensive negotiations, on May 18, 2016, the parties executed a Settlement

Agreement, jointly notified the United States Supreme Court of the Settlement, and stipulated to

dismissal of the pending petitions for certiorari.8 This Settlement Agreement is the product of

extensive arm’s-length settlement negotiations over more than seven months by counsel for both

sides that were fully conversant with the extensive history of this case and the risks (including

risks of additional substantial delay) that lay ahead.

On May 18, 2016, the day the Settlement Agreement was executed, Plaintiffs filed a

Stipulation re Certification of Settlement Class (Doc No. 2393) and an Unopposed Motion for

Certification of the Settlement Class (Doc. Nos. 2394-2395). The Court certified the Settlement

Class pursuant to Rule 23(a) and Rule 23(b)(3) on May 19, 2016. Order Certifying Settlement

Class, Doc. No. 2396. Plaintiffs filed a Notice of Filing of Settlement Agreement, attaching a

copy of the Settlement Agreement, on May 23, 2016. Doc. No. 2401.

On July 15, 2016, Plaintiffs filed their Motion for Preliminary Approval of Proposed

Class Action Settlement, Approval of Proposed Plan of Allocation of the Settlement Fund,

Approval of Proposed Forms and Manner of Notice to the Class, Approval of Proposed Claim

8 See Stipulation to dismiss the petition for a writ of certiorari, Case No. 15-911 (U.S. May 19, 2016)

(docket available at http://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-911.htm). On May 19, 2016, the Supreme Court dismissed the petitions. Id.


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Form, Appointment of Escrow Agent, Appointment of Settlement and Claims Administrator, and

Approval of Proposed Schedule, with an accompanying memorandum in support and related

materials. See Doc. Nos. 2406-2407. Defendants filed a response to this motion on July 25,

2016 (Doc. No. 2410), and the Court held a hearing on the motion for preliminary approval on

August 4, 2016 (see Doc. No. 2415). On August 5, 2016, the Court granted Plaintiffs’ motion,

and issued an Order Granting Preliminary Approval of Proposed Class Action Settlement,

Preliminary Approval of Proposed Plan of Allocation, Approval of Proposed Forms and Manner

of Notice to the Class, Approval of Proposed Claim Form, and Approval of Proposed Schedule

(Doc. No. 2416); an Order Appointing the Heffler Claims Group as Settlement and Claims

Administrator (Doc. No. 2417); and an Order Appointing the Huntington National Bank as

Escrow Agent (Doc. No. 2418). Plaintiffs’ motion and accompanying materials, and the Court’s

Orders, are publicly available on the Court-approved official settlement website

(www.rockyflatssettlement.com).

As set forth more fully in the Declaration of Jeanne C. Finegan, APR Concerning

Implementation and Adequacy of Class Member Notification (Doc. No. 2432), the Court-

appointed Settlement and Claims Administrator, Heffler Claims Group, successfully and timely

implemented the Court-approved Notice Plan. See id., at ¶ 4. The Notice Plan was substantially

completed by November 28, 2016. Id. According to the Settlement and Claims Administrator’s

analysis of the media delivery components of the Notice Plan (print, television, radio and internet

banner advertisements), the Notice Plan reached an estimated 96 percent of Denver area

residents and 84 percent of the target audience nationwide. Id.

On January 12, 2017, Plaintiffs filed Class Counsel’s Motion for Award of Attorneys’

Fees, Reimbursement of Litigation Expenses, and Award of Service Payments to Class


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Representatives, with accompanying declarations and exhibits. Doc. Nos. 2434-2435. These

materials were uploaded shortly after filing to the Court-approved official settlement website

(www.rockyflatssettlement.com).

Most recently, as part of Plaintiffs’ continued efforts to represent the Class and to protect

the Class from misleading and coercive communications, on February 13, 2017, Plaintiffs filed a

motion to bar a third-party claims processor’s misleading communications with the Class and

require that any future communications by claims processors include certain disclosures and

receive Court approval. Doc. No. 2441. The Court granted Plaintiffs’ motion on February 14,

2017. Doc. Nos. 2443 & 2444. The Court subsequently denied the third-party claims

processor’s motion for approval of its proposed communications with members of the Class,

which motion Plaintiffs opposed. Doc. No. 2453. A new motion by that third party processor is

pending, to which Plaintiffs will respond on or before April 10, 2017.

The Settlement and Claims Administrator also added to the official settlement website a

warning about solicitation of Class members by Optimal Settlements, LLC or other claims

administrators. See www.rockyflatssettlement.com. Finally, pursuant to the Court’s March 3,

2017 Order (Doc. No. 2449), on March 9, 2017, Heffler mailed out 25,272 reminder notices to

potential Class members reminding them of the June 1, 2017 deadline to file claims. See Doc.

No. 2452, at 2; Declaration of Edward J. Radetich Jr., Heffler Claims Group, In Support of

Plaintiffs’ Motion for Final Approval of Proposed Class Action Settlement and Approval of

Proposed Plan of Allocation of the Settlement Fund (“Heffler Decl.”) (attached as Exhibit 3), at ¶

6 (filed herewith).

III. THE SETTLEMENT AGREEMENT

The Settlement provides an extraordinary monetary payment to the Class in exchange for

a Class-wide release.


http://www.rockyflatssettlement.com/

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The Class receives $375 million in cash from Defendants and/or their indemnitor, the

DOE. Settlement Agreement, ¶ 2(c). Dow’s payment obligation is $131,250,000 (35% of the

Settlement amount), and Rockwell’s is $243,750,000 (65% of the Settlement amount). Id.

On June 1 and 2, 2016 Defendants paid a total of $2.5 million into an independent escrow

account pursuant to Settlement Agreement, ¶ 2(a), for notice and administration costs incurred in

connection with the final approval of the settlement. Id. If the actual costs of notice and

administration incurred prior to final settlement approval exceed $2.5 million, this amount will

be replenished and made available to Plaintiffs upon a showing of good cause, up to a maximum

of $10 million. Id.

The Settlement required Defendants to pay the remainder of the $375 million settlement

on or before July 28, 2017 (id. ¶2(c)). As Plaintiffs have advised the Court, Defendants have

already deposited the balance of the $375 million owed under the Settlement Agreement into the

Escrow Account. See Doc. Nos. 2437, 2438.

The Settlement Agreement, if approved, will be binding on Defendants, Plaintiffs, and

the Class, which is defined as “all persons and entities who have not previously opted out or who

do not timely opt out of the class and who owned, as of June 7, 1989, an interest (other than

mortgagee and other security interests) in real property situated within the Property Class Area

(defined below), exclusive of governmental entities, Defendants, and Defendants’ affiliates,

parents, and subsidiaries.” See Order Certifying Settlement Class, Doc. No. 2396, at 1-2. The

Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in


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Colorado; its boundary is portrayed in the map attached to the Order Certifying Settlement Class

as Appendix A. Id.9

“Settlement Class Members” means each and every member of the Settlement Class.

“Class Counsel” means counsel for the Class Representatives and Settlement Class Members.

Defendants have stipulated to certification of the Settlement Class, subject to the reservation of

rights stated in Paragraph 17 of the Settlement Agreement and contained in the separate

stipulation. Settlement Agreement, ¶ 1; see also Stipulation re Certification of Settlement Class,

Doc. No. 2393. Excluded from the Class are governmental entities, Defendants, and Defendants’

affiliates, parents, and subsidiaries. Settlement Agreement, ¶ 1; Stipulation re Certification of

Settlement Class, Doc. No. 2393, at ¶ 3.

The Settlement Agreement provides for the release of Defendants and any past, present

and future parents, subsidiaries, divisions, affiliates, joint ventures, stockholders, officers,

directors, management, supervisory boards, insurers, indemnitors (including the United States

Department of Energy or “DOE”), general or limited partners, employees, agents, trustees,

associates, attorneys and any of their legal representatives or any other representatives thereof

(and the predecessors, heirs, executors, administrators, successors and assigns of each of the

foregoing) (the “Released Parties”) from any and all manner of claims, rights, debts, obligations,

demands, actions, suits, causes of action, damages whenever incurred, liabilities of any nature

whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, including costs,

expenses, penalties and attorneys’ fees, accrued in whole or in part, in law or equity, that the

Plaintiffs and Settlement Class Members (including any of their past, present or future officers,

9 See corrected Appendix A to the Order Certifying Settlement Class, Doc. No. 2396. See also Order

Granting Plaintiffs’ Unopposed Motion for Amendment or Correction of the Court’s Order Certifying Settlement Class, Doc. No. 2405.


13

directors, insurers, general or limited partners, divisions, stockholders, agents, attorneys,

employees, legal representatives, trustees, parents, associates, affiliates, joint ventures,

subsidiaries, heirs, executors, administrators, predecessors, successors and assigns, acting in their

capacity as such) (collectively the “Releasors”) ever had, now have or hereafter can, shall or may

have, directly, representatively, derivatively or in any other capacity, arising out of or relating in

any way to the Released Parties’ conduct in connection with Rocky Flats, including without

limitation any claim that was alleged or could have been alleged in this suit (the “Released

Claims”), except that the Settlement Class Members and the Plaintiffs do not release claims for

actual bodily injury, nor claims unrelated to the allegations in the complaint such as pension, or

product liability or contract claims or claims of former Rocky Flats workers under Workman’s

Compensation or similar laws or regulations. Settlement Agreement, ¶ 7. Releasors also

covenant and agree that each shall not sue or otherwise seek to establish or impose liability

against any Released Party based, in whole or in part, on any of the Released Claims, regardless

of whether or not any Releasors objected to the Settlement. Id.

The entire Settlement is subject to Court approval, and could be deemed canceled and

rescinded if the Settlement Agreement cannot be finalized as provided in Paragraph 3(d) of the

Settlement Agreement. Settlement Agreement ¶ 10.10

10 The Settlement Agreement provided that Defendants would have the right to rescind the Settlement

Agreement if more than a specified percentage of Class members timely opt out of the Class (id.) – but this condition was not met. The Court’s March 1, 2017 deadline for Class members to timely opt out of the Class has passed, and only three Class members have opted out, fewer than the specified percentage of Class members required to give Defendants the right to rescind the Settlement Agreement. See Settlement Agreement, at § 10 & Ex. D.


14

IV. THE PROPOSED SETTLEMENT SHOULD BE FINALLY APPROVED

A. The Settlement Is Fair, Reasonable, and Adequate and Should Be Approved

Approval of a proposed settlement is within the sound discretion of the Court. Rutter &

Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002); Jones v. Nuclear

Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984). Nonetheless, there is a “strong judicial

policy in favor of class action settlement” that “contemplates a circumscribed role for the

district courts in settlement review and approval proceedings.” Tuten v. United Airlines, Inc., 41

F. Supp. 3d 1003, 1007 (D. Colo. 2014) (citing Ehrheart v. Verizon Wireless, 609 F.3d 590, 594

(3d Cir. 2010)). “Settlement agreements are to be encouraged because they promote the

amicable resolution of disputes and lighten the increasing load of litigation faced by the federal

courts.” Id.

A class action settlement must be approved under Rule 23(e) of the Federal Rules of

Civil Procedure if it is “fair, reasonable and adequate.” Gottlieb v. Wiles, 11 F.3d 1004, 1014

(10th Cir. 1993); Jones, 741 F.2d at 324.11 The Tenth Circuit has identified four factors that a

district court should consider in assessing whether a proposed class action settlement is fair,

reasonable and adequate:

(1) whether the proposed settlement was fairly and honestly negotiated;

11 Courts have long held that the settlement of disputed claims is favored as a public policy matter,

see, e.g., Williams v. First Nat’l Bank, 216 U.S. 582, 595 (1910); Grady v. de Ville Motor Hotel, Inc., 415 F.2d 449, 451 (10th Cir. 1969), particularly in the context of class action litigation. See Diaz v. Romer, 801 F. Supp. 405, 407 (D. Colo. 1992) (in approving class action settlement, court explained that a “consensual resolution of a dispute is always preferred”). For that reason, in evaluating the fairness of the Settlement, this Court should neither decide the merits of the cases nor substitute its judgment for that of the parties who negotiated the settlement. See Lucas v. Kmart Corp., No. 99-cv-01923, 2006 U.S. Dist. LEXIS 51439, at *23 (D. Colo. Jul. 27, 2006) (“[I]t is not the role of the Court at [the settlement] stage of the litigation to evaluate the merits”) (citing Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D. Colo. 1997)); see also In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 625 (D. Colo. 1976) (the court “need not, and should not, decide the merits of the controversy”).


15

(2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt;

(3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and

(4) the judgment of the parties that the settlement is fair and reasonable.

Gottlieb, 11 F.3d at 1014; Jones, 741 F.2d at 324; see also Rutter, 314 F.3d at 1188 (affirming

test); In re Qwest Commc’ns Int’l, Inc. Sec. Litig., No. 01-cv-01451, 2006 U.S. Dist. LEXIS

71039, at *15 (D. Colo. Sept. 28, 2006) (also affirming test); Alvarado Partners, L.P. v. Mehta,

723 F. Supp. 540, 546-48 (D. Colo. 1989) (applying settlement approval factors to securities

class action).12 In addition, the number of substantive objections to a settlement – here there are

none – is a factor courts consider when assessing whether a proposed class action settlement is

fair, reasonable and adequate. See, e.g., Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1008

(D. Colo. 2014) (in reviewing a proposed class settlement under the Gottlieb factors, “[t]he Court

may also consider the fact that no objections were filed by any Class Members.”) (granting final

approval).13

12 Where relevant, courts in this Circuit also consider: (i) the risk of establishing damages at trial; (ii)

the extent of discovery and the current posture of the case; (iii) the range of possible settlement; and (iv) the reaction of Class Members to the proposed settlement. In re N.M. Natural Gas Antitrust Litig., 607 F. Supp. 1491, 1504 (D. Colo. 1984); Wilkerson, 171 F.R.D. at 284 (citing In Re New Mexico Nat. Gas Antitrust Litig., 607 F.Supp. 1491, 1497 (D.Colo.1984)).

13 See also Mohammed v. Ells, 12-CV-1831-WJM-MEH, 2014 WL 4212687, at *4 (D. Colo. Aug. 26, 2014) (“[T]he fact that no objections to the settlement were filed by any shareholder weighs heavily in favor of approval of the derivative litigation settlement.”); Oppenlander v. Stand. Oil Co. (Indiana), 64 F.R.D. 597, 627 (D. Colo. 1974) (“It is significant that only one shareholder out of thousands filed a written objection to the Settlement Agreement.”); Ponca Tribe of Indians of Oklahoma v. Contl. Carbon Co., 05-445 (C), 2009 WL 2836508, at *1 (W.D. Okla. Jul. 30, 2009) (approving class settlement and noting that “[n]o substantive objections were filed to the settlement . . . [and] there were eight (8) opt outs out of approximately 1,800 Class Members”); Belote v. Rivet Software, Inc., 12-CV-02792-WYD-MJW, 2014 WL 3906205, at *4 (D. Colo. Aug. 11, 2014) (noting that the fact that no substantive objections were filed “indicat[e] that the Class Members do not oppose the settlement”); Make A Difference Found., Inc. v. Hopkins, 10-CV-00408-WJM-MJW, 2012 WL 917283, at *3 (D. Colo. Mar. 19, 2012) (“the fact that only three conclusory written objections to the settlement were received and no objectors appeared at the settlement hearing, despite the fact that notice of the settlement was sent to more than 47,000 record holders of Oilsands stock, weighs heavily in favor of approval of the derivative litigation settlement.”).


16

Consideration of each factor supports approval.

1. The Proposed Settlement Was Fairly And Honestly Negotiated

Courts are required to analyze “whether the proposed settlement was fairly and honestly

negotiated.” Jones, 741 F.2d at 324; Rutter, 314 F.3d at 1188. Courts “may presume the

settlement to be fair, adequate, and reasonable” where it results “from arm’s length negotiations

between experienced counsel after significant discovery had occurred.” Lucas v. Kmart Corp.,

234 F.R.D. 688, 693 (D. Colo. 2006) (citation omitted); see also United Airlines, Inc., 41 F.

Supp. 3d at 1011 (“arms-length negotiations between experienced counsel” where counsel

“undertook voluntary discovery, negotiated over a methodology for estimating damages, and

retained an expert to calculate the damages . . . show[] that the Settlement was fairly and

honestly negotiated”). Here, the Settlement Agreement was reached after far more than

“significant discovery” – the parties entered into the Settlement Agreement after more than 26

years of litigation, including complete discovery, extensive briefing, a jury trial lasting more than

4 months, two separate appeals in the Tenth Circuit Court of Appeals, and two rounds of briefing

in connection with two separate petitions for writs of certiorari seeking review by the United

States Supreme Court. After litigating this case for decades, through lengthy and extensive

discovery, trial, and two appeals, Plaintiffs and Class Counsel certainly possessed “the desired

quantum of information necessary to achieve a settlement.” Cotton v. Hinton, 559 F.2d 1326,

1332 (5th Cir. 1977).

The Settlement Agreement resulted from extensive arm’s-length settlement negotiations

over more than seven months between counsel for Plaintiffs and counsel for Defendants. The

settlement discussions were conducted with the assistance of a mediator, the Honorable Layn


17

Phillips, a former United States District Judge, a fact which weighs in favor of settlement.14

There has been no suggestion, nor could there be, that Class Counsel and counsel for Defendants

did not negotiate in earnest and at arm’s length.

The $375 million that has already been deposited into the Escrow Account by Defendants

is a testament to Class Counsel’s vigorous representation of the Class throughout the settlement

negotiations and throughout decades of hard-fought litigation, including during the ten months

since the Settlement Agreement was executed. See generally Lucas, 234 F.R.D. at 693 (holding

that the settlement agreement was fairly and honestly negotiated where “the parties to this

litigation have vigorously advocated their respective positions throughout the pendency of the

case.”) (internal quotations and citation omitted).

2. Serious Disputed Questions of Law and Fact Remain

The Court should also consider whether “serious legal and factual questions placed the

litigation’s outcome in doubt.” Tennille v. W. Union Co., 785 F.3d 422, 434 (10th Cir. 2015);

see also Jones, 741 F.2d at 324; Rutter, 314 F.3d at 1188. Here, Plaintiffs and the Class faced

significant risks.

When the Settlement Agreement was signed on May 18, 2016, the District Court had not

yet addressed any of the four arguments Defendants raised in opposition to Plaintiffs’ Motion for

Entry of Judgment. Defendants argued that: (1) class certification was not appropriate under

Fed. R. Civ. P. 23; (2) alleged numerical federal nuclear standards preempt Plaintiffs’ Colorado

nuisance claims; (3) the District Court erred at trial by allowing irrelevant and prejudicial

14 See In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y. 2009). See also

Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001); In re Toys “R” Us Antitrust Litig., 191 F.R.D. 347, 352 (E.D.N.Y 2000). In addition, protracted, difficult settlement negotiations signify the absence of collusion.


18

evidence (alleged errors the Tenth Circuit had not addressed, according to Defendants); and (4)

the judgment amount, if any, should be far less than the amount Plaintiffs sought in their Motion

for Entry of Judgment. See Doc. Nos. 2373, 2374, 2376, 2377, 2378. Plaintiffs opposed

Defendants’ arguments, but Plaintiffs and the Class faced a significant risk that the District

Court, or the Tenth Circuit or Supreme Court thereafter, would rule that (a) the Class could not

be certified under Fed. R. Civ. P. 23; (b) that Plaintiffs’ Colorado nuisance claims were still

preempted by alleged numerical federal nuclear standards; (c) that the District Court erred at trial

by allowing irrelevant and prejudicial evidence; and/or that (d) the judgment amount, if any,

should be far less than the amount Plaintiffs sought in their Motion for Entry of Judgment. In

short, depending on future rulings by the District Court, Tenth Circuit, and/or U.S. Supreme

Court, there was significant risk of reduced or no recovery for the Class. There was also the

substantial prospect of years of additional delay – in a case already more than a quarter-century

old.

In addition, at the time of settlement, Defendants’ writ of certiorari seeking review by the

United States Supreme Court was pending. Plaintiffs and the Class risked losing everything if

the Supreme Court reviewed Cook Appeal II and found that Plaintiffs’ nuisance claims were

preempted by the PAA (assuming that the Supreme Court also did not reverse or materially

modify the Tenth Circuit’s ruling in Cook Appeal I).

In sum, the proposed Settlement provides a sizeable monetary recovery for the Class,

while eliminating substantial risks and preventing the litigation from dragging out even longer.

3. The Value of an Immediate Recovery Outweighs the Possibility of Future Relief After Further Litigation

Courts also “consider the vagaries of litigation and compare the significance of

immediate recovery by way of the compromise to the mere possibility of relief in the future, after


19

protracted and expensive litigation.” In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 625 (D.

Col. 1976); see also Jones, 741 F.2d at 324 (courts should consider “whether the value of an

immediate recovery outweighs the mere possibility of future relief after protracted and expensive

litigation”); Rutter, 314 F.3d at 1188.

Again, if the Supreme Court had granted Defendants’ certiorari petition, this would have

further prolonged the litigation and could have led to judgment being entered in favor of

Defendants. See In re Crocs, Inc. Sec. Litig., 07-cv-02351-PAB-KLM, 2013 WL 4547404, at

*12 (D. Colo. Aug. 28, 2013) (“Given the uncertainty of plaintiffs’ likelihood of success on the

merits and the prospects of prolonged litigation, the Court finds that immediate recovery

outweighs the time and costs inherent in complex . . . litigation, especially when the prospect is

some recovery versus no recovery.”); King Res., 420 F. Supp. at 627 (“The Court recognizes that

had these settlements not been reached, chances of the class prevailing against settling

defendants would have been uncertain and disbursement of funds to the class, should it have

prevailed, would undoubtedly have been delayed for some, perhaps lengthy, period of time given

the high probability of an appeal or appeals in this case.”).

Even if the Supreme Court had denied Defendants’ certiorari petition, there was likely to

have been extensive and prolonged litigation concerning Plaintiffs’ Motion for Entry of

Judgment, and Defendants’ multi-part opposition thereto, including additional appeals to the

Tenth Circuit and additional rounds of Supreme Court certiorari petition briefing. This real risk

that the Class might walk away with nothing, along with the inevitability of further years of

delay, weigh in favor of final approval. See, e.g., Nieberding v. Barrette Outdoor Living, Inc.,

No. 12-CV-2353-DDC-TJJ, 2015 WL 1645798, at *3-5 (D. Kan. Apr. 14, 2015) (pendency of

appeal favored approval because “if the Tenth Circuit reversed the Court's class certification


20

order, the class members might recover nothing”); Seiffer v. Topsy’s Int’l, Inc., 70 F.R.D. 622,

625, 629 (D. Kan. 1976) (approving partial settlement after Tenth Circuit affirmance of class

certification and while petition for writ of certiorari was pending, noting that although plaintiffs

had “no serious doubts” about establishing liability, the “risk of ultimately recovering money

damages dogs the heels of even able and zealous counsel,” especially in large and complex

cases, and the “certainty of fixed recovery by way of agreement is often preferable to the

vagaries of what might be achieved by a trial”); Oppenlander v. Standard Oil Co. (Indiana), 64

F.R.D. 597, 624 (D. Colo. 1974) (“It has been held proper to take the bird in the hand instead of

a prospective flock in the bush.”) (citation and internal quotations omitted); see also Lucas, 234

F.R.D. at 694.

4. Plaintiffs Believe the Settlement is Fair and Reasonable

Lastly, courts consider whether “the judgment of the parties that the settlement is fair and

reasonable.” Jones, 741 F.2d at 324; Rutter, 314 F.3d at 1188. Class Counsel, after extensive

consultation with the Class Representatives, respectfully submit that the settlement is fair and

reasonable. “Counsels’ judgment as to the fairness of the agreement is entitled to considerable

weight.” Lucas, 234 F.R.D. at 695 (quoting Marcus v. Kansas Dept. of Revenue, 209 F. Supp.

2d 1179, 1183 (D. Kan. 2002)); Alvarado, 723 F. Supp. at 548 (“Courts have consistently

refused to substitute their business judgment for that of counsel and the parties.”). Class Counsel

are among the most experienced and respected class action lawyers in the nation, and have

tirelessly advanced the Class’s claims since the case’s inception twenty-seven years ago. In our

judgment, the Settlement is more than fair and reasonable – it represents an outstanding result for

the Class. This judgment is based not only on the calculus of risk in the Supreme Court and

further litigation related to class certification and Plaintiffs’ Motion for Entry of Judgment, but

also the very substantial sum of money that the settlement delivers to Plaintiffs with certainty.


21

Additionally, the Class Representatives fully support the Settlement. These

Representatives have diligently and ably represented the Class through 27 years of litigation,

including testifying at, and attending, the four-month trial. Given the Class Representatives’

unique vantage point at the center of this lengthy litigation, and their personal stake in the

outcome, their support for the Settlement speaks highly of its fairness.

5. The Long Duration of This Litigation and Aging Class Members Further Supports Approval

One less traditional but nonetheless important motivating factor in this case is the already

long duration of the case, and the likelihood that at least several more years of litigation were in

store. Three of the original class representatives have already passed away, and the remainder

are older and in some cases in declining health. Other Class members no doubt have also passed

away. The prospect of years of further litigation delay would mean even more Class members

would not live to participate in any eventual recovery.

6. The Class’s Overwhelmingly Positive Reaction to the Settlement Supports Approval

The Court-approved Notice Plan has been completed, and the Court-ordered March 1,

2017 deadline for Class members to object to the Settlement or opt-out of the Settlement Class

has lapsed. To date, there has been essentially no opposition to the Settlement. The Settlement

and Claims Administrator has received only three opt-out requests. See Heffler Decl., at ¶ 3.

In addition, the Settlement and Claims Administrator has received only two purported

objections to the Settlement. One of the two purported objections was filed by William D.

Thomas, who objected because he was not a Class member, and so not eligible to participate in

the Settlement. See Doc. No. 2421. As a non-Class member, Mr. Thomas lacks standing to


22

object.15 In addition, Mr. Thomas’s objection did not question the Settlement’s fairness –

indeed, he apparently objects to the Settlement only to the extent that he is not able to participate

in it. The only objection filed by a member of the Class objected to Class Counsel’s fee request,

and did not claim that the Settlement was unfair (see Doc. No. 2445) – Class Counsel’s response

to this objection is included in Class Counsel’s Reply in Further Support of Class Counsel’s

Motion for Award of Attorneys’ Fees, Reimbursement of Litigation Expenses, and Award of

Service Payments to Class Representatives, which is also being filed today.

Heffler Claims Group issued notice to absent Class members in the manner ordered by

this Court, and consistent with Rule 23. See Doc. No. 2416, ¶¶ 13-17 (approving Plaintiffs’

proposed Notice Plan). The Court-approved Notice Plan was thorough and extensive, and the

best notice practicable, as explained more fully in Plaintiffs’ Memorandum In Support of Their

Motion for Preliminary Approval of Proposed Class Action Settlement, Preliminary Approval of

Proposed Plan of Allocation, Approval of Proposed Forms and Manner of Notice to the Class,

Approval of Proposed Claim Form, Appointment of Escrow Agent, Appointment of Settlement

Administrator, and Approval of Proposed Schedule.16 The Notice Plan included the following

15 See, e.g., Heller v. Quovadx, Inc., 245 F. App’x 839, 842 (10th Cir. 2007) (holding that an objector

to a securities class action settlement was “not a class member” and “therefore . . . ha[d] no standing” under Rule 23 because “[n]on-class members have no standing to object. . . .” and it was undisputed that the objector was not a class member) (quoting Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir.1989)); In re Motor Fuel Temperature Sales Practices Litig., No. 07-MD-1840-KHV, 2015 WL 5010048, at *21 (D. Kan. Aug. 21, 2015) (“Ordinarily, a non-settling party lacks standing to complain about a class action settlement because it has suffered no “injury in fact” and has no legally protected interest in the settlement.”); id. at *21 n.61 (“Generally, only class members have standing to object to a class settlement.”); id. at *24 (non-class members lacked standing to object); Newberg on Class Actions § 13:22 (5th ed.) (“As Rule 23 confers the right to object upon class members, the Rule itself does not confer standing upon nonclass members. Courts regularly find that nonclass members have no standing to object to a proposed settlement or to the notice thereof.”); id. (“[N]onclass members may not object because generally speaking a settlement has no impact on them: as nonparties, they cannot be bound to the outcome of the litigation, and their interests generally are not affected by a class settlement.”).

16 Under Rule 23(e), “[t]he Court must direct notice in a reasonable manner to all class members who would be bound” by the proposed settlement. Fed. R. Civ. P. 23(e)(1). For classes certified under Rule


23

components, which are described more fully in the two declarations submitted by Jeanne C.

Finegan, APR (Doc Nos. 2408, 2432) and in the Proposed Notice Plan (Doc. No. 2407-5):

1) Direct mail notice by first-class U.S. mail to reasonably identifiable Class Members. Plaintiffs mailed the Long Form Notice to the potential Class members who received notice of class certification in 1999 (subject to obtaining current addresses), as well as any other potential Class members identified through the Jefferson County and Broomfield County 1989 property records data. The Settlement and Claims Administrator has attempted to obtain current addresses for the potential Class members. See Proposed Notice Plan, at § II.1; Doc. No. 2408, at ¶¶ 17-21; Doc. No. 2432, at ¶¶ 7-12. The Long Form Notice included a claim form and informed Class Members of the terms of the Settlement; the Plan of Allocation for proceeds of the Settlement; the nature of the settled claims; the status of the litigation; the date, time, and place of the hearing on the motions to approve the Settlement and to award attorneys’ fees and reimbursement of expenses; the parameters of the fee application; the procedure and applicable deadlines allowing Class members to comment on, object to, or request exclusion from the Settlement, and how to obtain more information, including through the Court-approved official website, www.rockyflatssettlement.com.17

2) An informational website (www.RockyFlatsSettlement.com). The website includes the Settlement Agreement, a detailed map of the Property Class Area, the Long Form Notice, Summary Notice, the Plaintiffs’ motion for award of service awards to the Class Representatives and for attorneys’ fees, costs and expenses (when it was filed), and other important Court documents. See Proposed Notice Plan, at § II.2; Doc. No. 2408, at ¶¶ 62-63; Doc. No. 2432, at ¶ 13.

3) A toll-free information phone line for Class members to call 24 hours a day, 7 days a week for more information about the Settlement, including but not limited to requesting copies of the Notice and Claim Form. See Proposed Notice Plan, at § II.3; Doc. No. 2408, at ¶ 64; Doc. No. 2432, at ¶ 14.

23(b)(3), as here, notice to class members must be the “best notice practicable.” See Fed. R. Civ. P. 23(c)(2)(B). “[B]est notice practicable” means “individual notice to all members who can be identified through reasonable effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). “The hallmark of the notice inquiry . . . is reasonableness.” Lucas, 234 F.R.D. at 696 (quoting Sollenbarger v. Mountain States Tel. and Tel. Co., 121 F.R.D. 417, 436 (D.N.M.1988)).

17 C.f. In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 625 F. Supp. 2d 1133, 1137 (D. Colo. 2009) (“[A] notice of a class action and a proposed settlement generally must contain ‘an adequate description of the proceedings written in objective, neutral terms, that, insofar as possible, may be understood by the average absentee class member’”). Counsel’s adherence to this well-established procedure protects the rights of absent Class Members.


http://www.rockyflatssettlement.com/

24

4) Publication of the Court-approved Summary Notice in nationally circulated consumer magazines. See Proposed Notice Plan, at § II.4; Doc. No. 2408, at ¶¶ 34-39; Doc. No. 2432, at ¶ 15.

5) Publication of the Court-approved Summary Notice in Denver and Colorado newspapers. See Proposed Notice Plan, at § II.5; Doc. No. 2408, at ¶ 57; Doc. No. 2432, at ¶ 16.

6) Television commercials aired nationwide on cable networks. The commercials included information about the proposed settlement, explained who is a member of the Class, and directed potential Class members to the official settlement website and the toll-free informational line for more information. See Proposed Notice Plan, at § II.6; Doc. No. 2408, at ¶¶ 40-43; Doc. No. 2432, at ¶ 17.

7) Television and radio commercials aired on network affiliate and cable networks in the Denver Direct Market Area (“DMA”). The commercials included information about the proposed settlement, explained who is a member of the Class, and directed potential Class members to the official settlement website or to the toll-free informational line for more information. See Proposed Notice Plan, at § II.7; Doc. No. 2408, at ¶ 55; Doc. No. 2432, at ¶ 18.

8) Online display banner advertising with a nationwide reach. Plaintiffs used online banner advertisements, advertisements on the top or sides of websites. The banner advertisements provided information for visitors to self-identify themselves as potential Class Members, where they could “click” on the banner and then link directly to the official website for more information and where they could register online, file a claim, or seek additional information including frequently asked questions and important court deadlines and documents. See Proposed Notice Plan, at § II.8; Doc. No. 2408, at ¶¶ 44-45, 49; Doc. No. 2432, at ¶¶ 19-21.

9) Online video advertising with a nationwide reach. Plaintiffs placed online video advertisements on the Xaxis network18 across various web properties as pre-roll.19 See Proposed Notice Plan, at § II.9; Doc. No. 2408, at ¶ 46; Doc. No. 2432, at ¶ 22.

10) Advertising on mobile websites and applications specifically targeted to reach class members. Plaintiffs used banner advertising on mobile websites and applications. Potential Class members could “click” on the mobile or application

18 Xaxis is an online network of over 2,000 individual web partner properties. (www.xaxis.com). 19 Online “pre-roll” advertisements or commercials appear prior to an online video being presented.

Once you click on a certain online video link you must watch a short commercial (here, about the Settlement) before the video content.


25

banner and then link directly to the official settlement website. See Proposed Notice Plan, at § II.10; Doc. No. 2408, at ¶¶ 53-54, 56; Doc. No. 2432, at ¶ 23.

11) Social media advertising through Facebook and Twitter with a nationwide reach. Facebook advertisements were served to adults across the United States, and more specifically to those who also have friends and family in living in Colorado and those who live near Rocky Flats and in surrounding areas. See Proposed Notice Plan, at § II.11; Doc. No. 2408, at ¶¶ 50-51; Doc. No. 2432, at ¶ 24. In addition, advertisements were served on Twitter, appearing as sponsored tweets targeting adults nationwide with information about the proposed settlement and links to the Settlement Website. See Proposed Notice Plan, at § II.11; Doc. No. 2408, at ¶¶ 50, 52; Doc. No. 2432, at ¶ 24.

12) Native advertising on premium internet properties with a nationwide reach. Plaintiffs also used “native advertisements,” which are banner advertisements that are served to function and fit the surrounding editorial on a page. See Proposed Notice Plan, at § II.12; Doc. No. 2408, at ¶ 47; Doc. No. 2432, at ¶ 22.

13) Third-party outreach to a community action group, the “Downwinders,”20 and medical providers asking them to share and distribute the Notice. See Proposed Notice Plan, at § II.13; Doc. No. 2408, at ¶¶ 58-59; Doc. No. 2432, at ¶¶ 26-27. The Downwinders distributed copies of the Notice at the October 15, 2016 Downwinders meeting. Doc. No. 2432, at ¶ 26.

14) A multimedia press release issued nationwide over PR Newwire’s US1 newslines. See Proposed Notice Plan, at § II.14; Doc. No. 2408, at ¶¶ 60; Doc. No. 2432, at ¶ 28.

Commenting on the notice plan, Jeanne C. Finegan, APR concluded:

30. In my opinion, the robust outreach efforts taken pursuant to the Court-approved Notice Plan and described above reflect a particularly appropriate, highly targeted and contemporary way to provide notice to potential Class members. Indeed, I estimate that the robust multi-channel Notice Plan, which combined direct mail and a paid media program, exceeded our original estimated projections, and reached over 96 percent of potential Class members (or their heirs or successors) living in the Denver DMA (reaching more potential Class Members than we originally expected); reached over 96 percent of potential Class members (or their heirs or successors) living in Colorado; and reached over 84 percent of potential Class members (or their heirs or successors) nationwide.

20 Rocky Flats Downwinders is a community organization founded in 2015 advocating on behalf of

those impacted by living downwind from the Rocky Flats Nuclear Weapons Plant. The organization came together through common concern about the high rate of illness suffered by former residents in the Arvada, Broomfield, Thornton, and surrounding areas.


26

31. In my opinion, the successfully implemented Court-approved Notice Plan reflected and incorporated the highest modern communication standards and was reasonably calculated to provide notice that is not only consistent with, but indeed, exceeds best practicable court-approved notice plans in similar matters and is consistent with the Federal Judicial Center’s guidelines concerning appropriate reach.

Doc. No. 2432, at ¶¶ 30-31.

Following the completion of the extensive Notice Plan, Class members were given ample

time to opt out of the Class or object to the Settlement (more than 90 days).21 The Court-

approved Notice Plan was substantially completed by November 28, 2016 (see Doc. No. 2432, at

¶ 4), 93 days prior to the March 1, 2017 deadline for requesting exclusion from the Class or

objecting to the Settlement (see Doc. No. 2416, at ¶ 17). Courts have approved much shorter

exclusion and/or objection periods.22

Simply put, any Class member who may have reason to object to the Settlement has been

provided fair notice, and had an opportunity to either opt-out or object to the Settlement. The

Court-ordered deadline to request exclusion or object to any aspect of the Settlement — March 1,

21 Class members were previously given an opportunity to opt out of the Class when notice was

mailed to the Class in 1999. See Doc. No. 1139 (Plaintiffs’ Proposed Class Notice); Doc No. 1143 (Order Approving Class Notice); Doc. No. 1148 and exhibits thereto (report on prior opt outs). Rule 23(e)(4) provides that “[i]f the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.” Here, the class certification was reversed by Cook Appeal I, while 23(e)(4) appears to address a situation where a class is certified, then a case settles. In any event, the Class members were given a second opportunity to opt out of the Class, as well as an opportunity to object to the Settlement.

22 See DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935, 946 (10th Cir. 2005) (affirming a 32-day notice period and noting that “courts have found a notice scheme similar to the one in the instant case sufficient and have not required a sixty- or ninety-day notice period, as Appellants suggest”); Lucas, 234 F.R.D. at 695-97 (approving a 60-day notice period for a nationwide settlement class of over 200,000 potential members); Hershey v. ExxonMobil Oil Corp., No. 07-cv-1300-JTM, 2012 WL 5306260, at *4 (D. Kan. Oct. 26, 2012) (approving a 30-day notice period where the settlement compensated the class of “over 8,600 members” for damages “extending back to 1988”); see also Newberg on Class Actions § 8:16 (5th ed.) (“[C]ourts typically provide for a few months between the issuance of settlement notice and either the deadline for objections or the fairness hearing[,] although gaps of one month or less have been found adequate.”).


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2017 – has elapsed. The overwhelmingly positive reaction of the Class – not a single Class

member has filed a substantive objection to the settlement – weighs strongly in favor of

approval.23

V. THE COURT SHOULD APPROVE PLAINTIFFS’ PROPOSED PLAN OF ALLOCATION

“An allocation formula need only have a reasonable, rational basis, particularly if

recommended by ‘experienced and competent’ class counsel.” Lucas, 234 F.R.D. at 695

(quotation and citations omitted). It is well established that a plan of allocation is fair,

reasonable and adequate where it seeks to compensate Class members based on their estimated

damages. See, e.g., In re Crocs, Inc. Sec. Litig., 306 F.R.D. 672, 692 (D. Colo. 2014); Law v.

Nat’l Collegiate Athletic Ass’n, 108 F. Supp. 2d 1193, 1196, 1200 (D. Kan. 2000); Smith v. MCI

Telecomms. Corp., No. 87-2110- EEO, 1993 WL 142006, at *2 (D. Kan. Apr. 28, 1993).

The proposed Plan of Allocation of the Settlement Fund (“proposed Plan of Allocation”)

(attached as Exhibit 2) (previously filed at Doc. No. 2407-2) accomplishes these goals: it

23 See, e.g., In re New Mexico Nat. Gas, 607 F. Supp. at 1504, 1507-08; Belote v. Rivet Software,

Inc., No. 12-CV-02792-WYD-MJW, 2014 WL 3906205, at *2 (D. Colo. Aug. 11, 2014) (“Additional factors which may be relevant include: (1) the risk of establishing damages at trial; (2) the extent of discovery and the current posture of the case; (3) the range of possible settlement; and (4) the reaction of class members to the proposed settlement.”) (citing In re New Mexico Nat. Gas, 607 F. Supp. at 1504); Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D. Colo. 1997) (same); Tuten, 41 F. Supp. 3d at 1008 (in reviewing a proposed class settlement under the Gottlieb factors, “[t]he Court may also consider the fact that no objections were filed by any Class Members.”) (granting final approval); Mohammed, 2014 WL 4212687, at *4 (“[T]he fact that no objections to the settlement were filed by any shareholder weighs heavily in favor of approval of the derivative litigation settlement.”); Oppenlander, 64 F.R.D. at 627 (“It is significant that only one shareholder out of thousands filed a written objection to the Settlement Agreement.”); Ponca Tribe of Indians, 2009 WL 2836508, at *1 (approving class settlement and noting that “[n]o substantive objections were filed to the settlement . . . [and] there were eight (8) opt outs out of approximately 1,800 Class Members”); Belote, 2014 WL 3906205, at *4 (noting that the fact that no substantive objections were filed “indicat[e] that the Class Members do not oppose the settlement”); Hopkins, 2012 WL 917283, at *3 (“the fact that only three conclusory written objections to the settlement were received and no objectors appeared at the settlement hearing, despite the fact that notice of the settlement was sent to more than 47,000 record holders of Oilsands stock, weighs heavily in favor of approval of the derivative litigation settlement.”).


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provides a fair and objective method of compensating the Class members for their damages,

based on the damages determined by the jury at trial. The proposed Plan of Allocation was

preliminarily approved by the Court on August 5, 2016 (Doc. No. 2416), and is modeled on the

prior Plan of Allocation approved by the Court on June 2, 2008 in connection with the Court’s

entry of judgment in favor of Plaintiffs after trial. See Doc. No. 2264-2.

The current proposed Plan of Allocation calls for distribution of the Net Settlement

Fund24 in the following manner: 3.196% of the Net Settlement Fund will be allocable to

commercial properties located in the Property Class Area; 81.537% of the Net Settlement Fund

will be allocable to residential properties located in the Property Class Area; and 15.267% of the

Net Settlement Fund will be allocable to vacant land located in the Property Class Area.

Proposed Plan of Allocation, at ¶ 8. These are the same percentages for each class of properties

that the jury awarded. See Jury Verdict Form, Doc. No. 2117, at 24.

Based on Jefferson County and Broomfield County tax assessment records from April

1989 and such other sources as the Settlement and Claims Administrator may reasonably

determine to be suitable and reliable, the Settlement and Claims Administrator shall determine,

for each Class property, the property’s assessed value, expressed as a fraction of the total

assessed value of all Class properties within the same category (the property’s “Fractional

Allocable Share”). Plan of Allocation, at ¶ 9.

The Settlement and Claims Administrator shall compute an award for each member of

the Class, based on the Class member’s property’s Fractional Allocable Share of the Net

24 The “Net Settlement Fund” is defined as the Settlement Fund, less (i) service awards to the Class

Representatives approved by the Court; (ii) fees, expenses, and costs approved by the Court to be awarded from the Settlement Fund to counsel for Plaintiffs and the Class; (iii) Court-approved compensation and expenses paid or reimbursed to the Settlement and Claims Administrator; and (iv) any additional administrative expenses that may be charged against the Settlement Fund as approved by the Court.


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Settlement Fund apportioned to that category. Plan of Allocation, at ¶ 10. For example, for a

residential property, the proposed Plan of Allocation will result in an award based on the

property’s Fractional Allocable Share multiplied by the Net Residential Property Settlement

Fund.

It is anticipated that after the first distribution of settlement proceeds there will be

unclaimed or residual funds and that a subsequent distribution or distributions will be needed.

Class Counsel anticipates that, subject to Court approval, in any such second or subsequent

distribution, the properties closest to the plant will be given an extra weighting such that those

properties receive relatively more money in subsequent distributions. Plan of Allocation, at ¶¶

11, 13.

Insofar as the Net Settlement Fund includes residual funds after distribution(s) as set

forth in the preceding paragraphs that cannot be economically distributed to the Class (because

of the costs of distribution as compared to the amount remaining), Class Counsel shall make an

application to the Court, with notice to Defendants, for such sums to be used to make cy pres

payments for the benefit of members of the Class, for example by making a donation to a group

or groups whose interests are aligned with Class members or otherwise as directed by the Court.

Plan of Allocation, at ¶ 14.

The distribution methodology is adequately explained in the Notice sent to potential

Class members and posted to the official settlement website. The proposed Plan of Allocation

tracks the damages awarded to the Class at trial, and is fair, reasonable, and adequate to the Class

as a whole, and should be approved.

VI. CONCLUSION

For the reasons stated herein, Plaintiffs respectfully request that the Court grant their

motion for final approval of the Settlement, as set forth in the attached proposed Orders.


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Dated: March 30, 2017 Respectfully submitted,

/s/ Merrill G. Davidoff Merrill G. Davidoff David F. Sorensen Caitlin G. Coslett BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875-3000 Gary B. Blum Steven W. Kelly SILVER & DeBOSKEY, P.C. 1801 York Street Denver, CO 80206 (303) 399-3000 Louise M. Roselle Paul M. DeMarco MARKOVITS, STOCK & DE MARCO, LLC 119 E. Court Street, Suite 530 Cincinnati, OH 45202 (513) 651-3700

Attorneys for Plaintiffs and the Class


CERTIFICATE OF SERVICE

The undersigned certifies that on this 30 day of March, 2017 he caused the foregoing

submission to be served via the Court’s ECF system on all participating counsel.

/s/ Merrill G. Davidoff Merrill G. Davidoff BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875-3000


Exhibit 1

Case 1:90-cv-00181-JLK Document 2459-1 Filed 03/30/17 USDC Colorado Page 1 of 29


Civil Action No. 90-cv-00181-JLK MERILYN COOK, et al.,


Defendants.

SETTLEMENT AGREEMENT

This Settlement Agreement (the “Settlement Agreement”) is entered on May 18, 2016, by plaintiffs Merilyn Cook, Richard and Sally Bartlett, and William and Delores Schierkolk1 (the “Named Plaintiffs”), the Settlement Class (defined below), defendant The Dow Chemical Company (“Dow”), and defendant The Boeing Company as successor-in-interest to defendant Rockwell International Corporation (“Rockwell”) (collectively, Dow and Rockwell are the “Defendants”), for the purpose of settling the above-captioned lawsuit, which was brought as a public liability action under the Price-Anderson Act (“PAA”), 42 U.S.C. § 2210 et seq. and under diversity jurisdiction (the “Action”), and is pending in the United States District Court for the District of Colorado (the “District Court”). Each of the Named Plaintiffs, individually and as representatives of the stipulated Settlement Class, Dow, and Rockwell is a “Party” to this Settlement Agreement and collectively are the “Parties.” Rockwell Automation, Inc. is a separate signatory to the Settlement Agreement, but solely in its capacity as Boeing’s indemnitor and for the purpose of acknowledging its indemnity obligations to Boeing.

1 Delores Schierkolk is deceased, but William Schierkolk is her heir and representative.

Case 1:90-cv-00181-JLK Document 2407-1 Filed 07/15/16 USDC Colorado Page 2 of 29Case 1:90-cv-00181-JLK Document 2459-1 Filed 03/30/17 USDC Colorado Page 2 of 29

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RECITALS

A. This is a settlement of a public liability action under the PAA and all claims that the Named Plaintiffs brought or could have brought (other than claims for actual bodily injury) subject to paragraph 7, below.

B. The Named Plaintiffs commenced the Action in 1990 by filing a complaint against Dow and Rockwell on behalf of themselves and a putative class of persons and entities owning an interest in real property near the Rocky Flats Nuclear Weapons Plant in Jefferson County, Colorado. The federal government owned the Rocky Flats plant and hired contractors to operate it. Dow operated the plant from 1952 to 1975; Rockwell International operated the plant from 1975 to 1989.

C. The complaint, as amended, asserts public liability under the PAA for property damage caused by plutonium releases from the Rocky Flats plant, and trespass and nuisance claims. Plutonium is “special nuclear material” under the PAA, 42 U.S.C. § 2014(aa). Plaintiffs allege that these plutonium releases exposed class members to radiation, contaminated their property, increased their cancer risk, and substantially and unreasonably interfered with the use and enjoyment of their property. Because the alleged nuclear incidents occurred in Colorado, the District Court, pursuant to the PAA, 42 U.S.C. § 2014(hh), derived the substantive rules for decision for plaintiffs’ trespass and nuisance claims from Colorado law.

D. This Action has been litigated for more than two decades. The lengthy litigation proceedings have included the following significant events:

1. The District Court certified a class of property owners in 1993.

2. Plaintiffs tried their PAA trespass and nuisance claims to a jury in 2005, which resulted in a verdict in favor of the class and a judgment against Defendants in the amount of $926,104,087.

3. Defendants appealed to the Tenth Circuit, which concluded that the PAA has its own injury requirements, on which the jury had not been instructed. The Court also vacated the District Court’s class certification ruling, reversed and remanded the case, and directed the District Court to “vacate the judgment.” Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1133 (10th Cir. 2010) (Cook Appeal I).

4. Plaintiffs argued on remand to the District Court that they were entitled to reinstate the judgment as a state law nuisance claim, independent of the PAA. The District Court rejected that argument, ruling that the PAA “establishes an exclusive federal remedial scheme” for the claims asserted by Plaintiffs and, accordingly, entered judgment in favor of Defendants. Cook v. Rockwell Int’l Corp., 13 F. Supp. 3d 1153 (D. Colo. 2014).


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5. Plaintiffs appealed to the Tenth Circuit, which reversed the District Court, holding that the PAA did not preempt the Named Plaintiffs’ nuisance claim under Colorado law and that the Named Plaintiffs could seek reinstatement of the prior nuisance judgment under Colorado law, and remanded for additional proceedings, including consideration of whether the District Court could recertify the class. Cook v. Rockwell Int’l Corp., 790 F.3d 1088 (10th Cir. 2015) (Cook Appeal II).

E. Until execution of this Settlement Agreement, the Parties continue to litigate this Action in the District Court and in the United States Supreme Court.

1. Currently before the District Court is, inter alia, Plaintiffs’ Corrected Motion for Entry of Judgment based on the 2006 nuisance verdict in the amount (with interest as of November 2, 2015) of $897,152,208.73 against Rockwell and $384,493,802.56 against Dow.

2. The Parties also are pursuing United States Supreme Court review of Cook Appeal I and Cook Appeal II. Defendants’ petition for writ of certiorari asks the United States Supreme Court to review Cook Appeal II and seeks a determination that Plaintiffs have no means of recovery other than through a public liability action under the PAA. The Named Plaintiffs’ conditional cross-petition asks the Supreme Court to review Cook Appeal I if the Supreme Court reviews Cook Appeal II, and seeks a determination that the PAA does not impose a federal injury requirement different from Colorado state nuisance law.

F. Class Counsel and the Named Plaintiffs have thoroughly analyzed the facts and law regarding this matter and have concluded that this settlement is in the best interest of the Settlement Class because of the risk, among others, that the Supreme Court could overturn Cook Appeal II, affirm that this Action is a public liability action under the PAA, and leave Named Plaintiffs and the Settlement Class without any recovery.

G. Defendants have concluded that there is a risk that the Supreme Court, if it overturns Cook Appeal II, could also overturn Cook Appeal I, which, while affirming this Action is a public liability action under the PAA, could have the effect of reinstating the original judgment that Cook Appeal I set aside.

H. Both Named Plaintiffs and Defendants also recognize that the Supreme Court could deny certiorari on both Cook Appeal I and II, which would leave the Parties in their present posture of contested proceedings in the District Court.

I. In light of these risks arising from these Supreme Court proceedings relating to the PAA, as well as the risk to both sides of other adverse rulings and developments that will prolong and increase the costs of this litigation, the Parties now agree to compromise and settle this action.


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J. This Settlement Agreement is a product of extensive arm’s-length settlement negotiations over more than seven months between counsel for the Parties and through and with the assistance of a mediator, the Honorable Layn Phillips, former United States District Judge.

SETTLEMENT TERMS

In consideration of the mutual promises and releases contained in this Settlement Agreement, the Parties stipulate and agree to the following terms, which together constitute the “Settlement”:

1. THE SETTLEMENT CLASS. The Parties are entering into a separate stipulation, in conjunction with this Settlement Agreement, to the certification of a “Settlement Class” or “Class” or “Property Class” defined as all persons and entities who have not previously opted out or who do not timely opt out of the class and who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area (defined below), exclusive of governmental entities, Defendants, and Defendants’ affiliates, parents, and subsidiaries. The Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in Colorado; its boundary is portrayed in the map attached to this Settlement Agreement as Exhibit A. “Settlement Class Members” means each and every member of the Settlement Class. “Class Counsel” means counsel for the Named Plaintiffs and Settlement Class Members. Defendants have stipulated to certification of the Settlement Class, subject to the reservation of rights stated in Paragraph 17 and contained in the separate stipulation.

2. PAYMENT. The total funds payable under this Settlement Agreement shall equal and shall in no event exceed $375,000,000 (other than pursuant to Paragraph 2(f)(ii)), to be paid as follows:

(a) Initial Payments. Within ten (10) business days following the date the Parties execute this Settlement Agreement, Dow and Rockwell will make, or cause to be made, the following payments by wire transfers to an agreed-upon escrow account: Dow will pay, or cause to be paid, $1,250,000; Rockwell will pay, or caused to be paid, $1,250,000. Upon the District Court entering an order granting preliminary approval of the Settlement (the “Preliminary Approval Order”), such funds shall be available to Class Counsel to draw upon only for District Court-approved costs of Notice and other settlement administration costs incurred after the date of this Settlement Agreement, and shall not be drawn upon for costs incurred before the date of this Settlement Agreement or for any counsel fees (other than relating directly to Notice or settlement administration and as approved by the Court). If approved costs under this subparagraph exceed $2,500,000, then, upon a showing of good cause, Dow and Rockwell will make, or cause to be made,


5

Replenishment Payments in $2,500,000 increments (for each such increment, Dow will pay, or cause to be paid $1,250,000, and Rockwell will pay, or cause to be paid, $1,250,000), but payments under this Paragraph 2(a) shall not exceed a total of $10,000,000.

(b) Interim Payments. If the District Court enters an order granting final approval of the Settlement sooner than one year following the date the Court enters the Preliminary Approval Order, then within fifteen (15) business days following entry of such order Dow and Rockwell shall make, or cause to made, the following payments by wire transfers to an agreed-upon escrow account: Dow will pay, or cause to be paid, $4,000,000; Rockwell will pay, or cause to be paid, $4,000,000. Such funds may, with District Court approval, be drawn upon to pay out-of-pocket litigation costs and expenses previously incurred by Class Counsel, but shall not be drawn upon for any counsel fees.

(c) Final Payments. If the District Court enters the Preliminary Approval Order, then on the earlier of (i) one year following the date the Court enters the Preliminary Approval Order, (ii) July 28, 2017, or (iii) ten (10) business days from the date on which the United States Department of Energy (“DOE”) satisfies its nuclear hazards indemnification obligations to Defendants by transferring to Defendants $375,000,000, Dow and Rockwell will make, or cause to be made, the following Final Payments by wire transfers to an agreed-upon escrow account: Dow will pay, or cause to be paid, $131,250,000, less the amount of its Initial, Replenishment or Interim Payments, if any; Rockwell will pay, or cause to be paid, $243,750,000, less the amount of its Initial, Replenishment or Interim Payments, if any. The Final Payment funds, after deductions, as approved by the District Court, for payment of (a) attorneys' fees, costs and expenses; (b) service awards to the Named Plaintiffs; (c) taxes payable by the Settlement Fund; and (d) any and all notice and administrative costs and expenses associated with the Settlement, shall be distributed in accordance with the District Court’s approved allocation plan and only after the Settlement Agreement becomes final as specified in Paragraph 3(d).

(d) Settlement Fund. Together, the payments specified in this paragraph, with any accrued interest, shall be the “Settlement Fund.” Pending the Settlement Agreement becoming final as specified in Paragraph 3(d), funds on deposit in the agreed-upon escrow account pursuant to the foregoing payment provisions shall be invested solely in United States Treasury Securities of 12 months or shorter duration, except that funds paid pursuant to Paragraph 2(a) or needed for payments within one week may be deposited in a federally insured bank account. The escrow account shall be treated as a “qualified settlement fund” for federal income tax purposes pursuant to Treas. Reg.


6

Section 1.468B-1, and any taxes due as a result of income earned by the Settlement Fund will be paid from the Settlement Fund.

(e) Payment Terms Unaffected By Merger. Under no circumstances will any merger or divestiture or other transaction of any kind by any Defendant diminish, defeat or undermine the payment or other obligations in this Settlement Agreement.

(f) Effect of Nonpayment. If for any reason Dow or Rockwell does not timely make its Final Payment as provided in Paragraph 2(c), and allowing for a grace period of five (5) business days, Plaintiffs shall thereafter have the right to elect one of the following remedies against any non-paying Defendant:

(i) withdraw from the settlement as to that Defendant and proceed in the District Court with Plaintiffs’ pending Corrected Motion for Entry of Judgment against that Defendant, in which case such non-paying Defendant shall not be entitled to return of that Defendant’s portion of the Initial or Interim Payments specified in Paragraph 2(a) and (b);

(ii) seek entry and/or enforcement of judgment against that Defendant for the unpaid portion of that Defendant’s payment obligations under this Settlement Agreement, plus (A) a penalty equal to 15% of the unpaid settlement amount, (B) interest equal to 1% per month calculated from the date payment was due through the date such judgment is satisfied, and (C) any costs of collecting such payment.

Non-payment by one Defendant shall in no way affect the rights and obligations set forth in this Settlement Agreement or its finality as to a Defendant that timely pays in accordance with this Settlement Agreement.

(g) Stipulated Judgments. Attached hereto as Exhibits B and C are stipulated final judgments against Dow and Rockwell, respectively, for the amounts each has agreed to pay pursuant to this Settlement. The Parties agree that these judgments may be entered upon final District Court approval of the Settlement, but not enforced except as set forth in Paragraph 2(h). A form of final judgment granting final approval to the Settlement and dismissing the Action with prejudice, and containing other customary provisions, will be agreed to by the Parties prior to final approval of the Settlement Agreement by the District Court.

(h) In the event (but only in the event) of nonpayment as provided in Paragraph 2(f), the judgment(s) may be enforced against any non-paying Defendant(s), only if Plaintiffs elect the remedy provided in Paragraph 2(f)(ii) against such non-paying Defendant(s), and subject to Plaintiffs filing, with


7

reasonable notice to Defendants, a motion establishing non-payment and seeking calculation and enforcement of the stipulated judgment under Paragraph 2(f)(ii). The entry of these judgments in advance of any breach is not intended to foreclose, and does not foreclose, defendants’ right to appeal from any order entered pursuant to this Paragraph 2(h) and does not impair defendants’ right to appeal from such order. Except as provided in Paragraph 2(f)(ii), Plaintiffs shall make no claim of interest based on the entry of these judgments, and any interest relating to their enforcement is limited to the interest provided for in Paragraph 2(f)(ii). Except as provided in this Paragraph 2(h), Defendants agree not to object to or appeal from final approval of the Settlement.

3. APPROVAL OF SETTLEMENT. The Parties and their counsel agree to use their best efforts to effectuate this Settlement Agreement, and will cooperate to promptly seek and obtain preliminary and final approval of the Settlement, consistent with the procedures set forth herein:

(a) Supreme Court Proceedings. On or before May 18, 2016, the Parties will withdraw their respective pending petitions for writ of certiorari seeking Supreme Court review of Cook Appeal I and Cook Appeal II.

(b) Motion for Preliminary Approval. Within forty (40) business days following execution of this Settlement Agreement, subject to Defendants’ review and approval, which they shall not unreasonably withhold, Plaintiffs shall submit to the Court a motion requesting entry of an order preliminarily approving the Settlement, and authorizing dissemination of notice to the Settlement Class, as well as a stay of all non-Settlement-related proceedings before the District Court (the “Motion for Preliminary Approval”). Such motion shall include the proposed form of, method for, and timetable for dissemination of notice to the Settlement Class, and the proposed deadlines by which Settlement Class Members must opt-out of the Settlement Class or object to the Settlement.

(c) Motion for Final Judgment and Approval. Subject to Defendants’ review and approval, which they shall not unreasonably withhold, Named Plaintiffs will, following the period of notice and opportunity for Settlement Class Members to opt out or object by the deadline set by the District Court, file a motion in the District Court seeking entry of final judgment and approval of the Settlement (the “Motion for Final Judgment and Approval”). Such Final Judgment and Approval shall:

(i) approve finally this Settlement as a fair, reasonable, and

adequate resolution of the Settlement Class Members’ claims and direct its consummation according to the Settlement Agreement’s terms;


8

(ii) find under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and enter final judgment of dismissal with prejudice of all claims against the Defendants, without costs except as expressly provided in this Settlement Agreement; and

(iii) reserve exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this Settlement, notice to the Settlement Class, Class Counsel fees and expenses, service awards for Named Plaintiffs, allocation of the Settlement Fund, and enforcement of payment terms stated herein.

(d) Finality. This Settlement shall become final only upon occurrence of all of the following:

(i) the entry by the District Court of Final Judgment and Approval as specified in Paragraph 3(c) above; and

(ii) the expiration of the time for appeal or to seek permission to appeal from Final Judgment and Approval or, if an appeal is taken, the affirmance of such Final Judgment and Approval in its entirety, without a modification or ruling that materially changes the scope of the Settlement Agreement or certification of the Class, by the court of last resort to which an appeal of such Final Judgment and Approval may be taken.

(e) Stipulated Neutrality. Defendants will take no position on any plan of allocation or class administration, notice to the Settlement Class, Class Counsel fees and expenses, service awards for Named Plaintiffs, allocation or distribution of settlement proceeds, and any cy pres distribution of residual settlement proceeds or proceeds that cannot be distributed to settlement class members for any reason (unless such cy pres distribution would exceed 5% of the Settlement Fund, in which case Defendants may take a position on that issue). Defendants will not assist or otherwise aid any objectors to the Settlement or other ancillary matters relating to the Settlement.

4. NO INJUNCTIVE RELIEF. This Settlement does not include any provision for injunctive relief.

5. FULL SATISFACTION. Named Plaintiffs and Settlement Class Members shall look solely to the Settlement Fund for settlement and satisfaction from the Defendants and other Released Parties for any and all Released Claims, including any costs, fees or expenses of any of the Named Plaintiffs and Settlement Class Members or their attorneys, experts, advisors, agents and representatives, including with respect to the negotiation, execution and performance of their obligations under this Settlement Agreement. In the event that the Settlement becomes final pursuant to Paragraph 3(d)


9

herein, the Settlement Fund will fully satisfy any and all Released Claims. Except as provided by order of the District Court, no Named Plaintiff or Settlement Class Member shall have any interest in the Settlement Fund or any portion thereof. Apart from the payments specified in Paragraph 2 of this Settlement Agreement, Defendants shall not be responsible or otherwise liable for any additional payments to the Settlement Class Members or Class Counsel.

6. DISTRIBUTION OF SETTLEMENT FUND. Subject to approval by the District Court, Class Counsel shall designate a person or persons to administer and distribute the Settlement Fund in accordance with the provisions of this Settlement Agreement and the exhibits thereto (the “Settlement Administrator”). Defendants shall have no responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution, or administration, except as otherwise expressly provided in this Settlement Agreement. Neither Defendants nor the DOE shall be entitled to any refund, return or remittitur, or diminution of the settlement amount if the Settlement becomes final as provided in Paragraph 3(d).

7. RELEASE. Upon this Settlement Agreement becoming final as provided in Paragraph 3(d), the Named Plaintiffs and Settlement Class Members unconditionally, fully and finally release and forever discharge the Defendants, any past, present and future parents, subsidiaries, divisions, affiliates, joint ventures, stockholders, officers, directors, management, supervisory boards, insurers, indemnitors (including the DOE), general or limited partners, employees, agents, trustees, associates, attorneys and any of their legal representatives or any other representatives thereof (and the predecessors, heirs, executors, administrators, successors and assigns of each of the foregoing) (the “Released Parties”) from any and all manner of claims, rights, debts, obligations, demands, actions, suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, including costs, expenses, penalties and attorneys’ fees, accrued in whole or in part, in law or equity, that the Named Plaintiffs and Settlement Class Members (including any of their past, present or future officers, directors, insurers, general or limited partners, divisions, stockholders, agents, attorneys, employees, legal representatives, trustees, parents, associates, affiliates, joint ventures, subsidiaries, heirs, executors, administrators, predecessors, successors and assigns, acting in their capacity as such) (collectively the “Releasors”) ever had, now have or hereafter can, shall or may have, directly, representatively, derivatively or in any other capacity, arising out of or relating in any way to the Released Parties’ conduct in connection with Rocky Flats, including without limitation any claim that was alleged or could have been alleged in the above-captioned suit (the “Released Claims”), except that the Settlement Class Members and the Named Plaintiffs do not release claims for actual bodily injury, nor claims unrelated to the allegations in the complaint such as pension, or product liability or contract claims or


10

claims of former Rocky Flats workers under Workman’s Compensation or similar laws or regulations. Releasors hereby covenant and agree that each shall not sue or otherwise seek to establish or impose liability against any Released Party based, in whole or in part, on any of the Released Claims, regardless of whether or not any Releasors objected to the Settlement.

8. AUTHORITY AND CAPACITY TO EXECUTE. Each person signing this Settlement Agreement on behalf of a Party represents that such signatory has the full and complete power, authority and capacity to execute and deliver this Settlement Agreement and any documents to be executed pursuant hereto, that all formalities necessary to authorize execution of this Settlement Agreement so as to bind the signatory or its principal have been undertaken.

9. CONSTRUCTION. The language of all parts of this Settlement Agreement will in all cases be construed as a whole, according to its fair meaning and not strictly for or against any Party. All Parties have participated in the preparation of this Settlement Agreement and its exhibits and no presumptions or rules of interpretation based upon the identity of the Party preparing or drafting this Settlement Agreement or its exhibits, or any part thereof, shall be applied or invoked.

10. FAILURE TO FINALIZE SETTLEMENT. If the Settlement Agreement cannot be finalized as provided in Paragraph 3(d), the Settlement Agreement shall be deemed canceled and rescinded. If more than a specified percentage of putative Settlement Class Members timely opt out of the Settlement Class (as set forth in Exhibit D hereto that shall, with the approval of the District Court, be filed with the Court under seal or in camera, and publicly only if the Court so directs), Defendants in their sole discretion shall have the right to rescind the Settlement Agreement. If the Settlement Agreement is rescinded pursuant to this paragraph, the following shall occur:

(a) Return of Settlement Funds. The Settlement Fund shall be returned forthwith to Defendants, proportionate to their respective payments, less any disbursements made for expenses actually incurred in accordance with Paragraph 2(a).

(b) Cancellation of Settlement Agreement. Any rights or obligations under this Settlement Agreement (other than return of the Settlement Fund as set forth in the preceding subparagraph) shall be cancelled.

(c) Resumption of Litigation. The Parties shall be free to recommence non-Settlement-related litigation proceedings.

For avoidance of doubt, a modification or rejection by the District Court of fees and expenses requested by Class Counsel from the Settlement Fund or any plan of allocation or distribution of the Settlement Fund, or modification or reversal on appeal of an order


11

awarding same shall not affect or impair the finality of this Settlement Agreement under Paragraph 3(d), and shall not be a basis to rescind the Settlement Agreement.

11. NOTICE. Any and all notices, requests, consents, directives or communications by any Party intended for any other Party shall be in writing and shall, unless expressly provided otherwise herein, be given personally or by express courier or by electronic transmission (such as e-mail) followed by postage prepaid mail, to the following persons and shall be addressed as follows:

FOR NAMED PLAINTIFFS: Merrill G. Davidoff, Esquire

David F. Sorensen, Esquire Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 Phone: 215-875-3000

[email protected] [email protected] Gary B. Blum, Esquire Steven W. Kelly, Esquire Silver & DeBoskey, P.C. 1801 York Street Denver, CO 80206 Phone: 303-399-3000 [email protected] [email protected]

Louise Roselle Paul M. De Marco Markovits, Stock & DeMarco 119 East Court Street Suite 530 Cincinnati, OH 45202 Phone: 513-651-3700

[email protected] [email protected]

FOR DEFENDANTS:

Jason C. Miller The Dow Chemical Company 2030 Dow Center Midland, MI 48674


12

Phone: (989) 636-6411 [email protected] Bradley H. Weidenhammer KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Phone: (312) 862-3218 [email protected] Brian M. Russ Senior Counsel The Boeing Company 2201 Seal Beach Blvd., MC 110-SB37 Seal Beach, CA 90740-5603 Phone: (562) 797-2596 [email protected]

FOR ROCKWELL AUTOMATION, INC.:

Douglas M. Hagerman SVP, General Counsel & Secretary Rockwell Automation, Inc. Phone: (414) 382-8470 [email protected]

Any of the Parties may, from time to time, change the address to which such notices, requests, consents, directives or communications are to be delivered, by giving the other Parties prior written notice of the changed address, in the manner provided above, ten (10) calendar days before such change is effective.

12. INTEGRATED AGREEMENT. This Settlement Agreement contains an exclusive, entire, complete and integrated statement of each and every term and provision agreed to, by and among the Parties pertaining to the settlement of this Action and supersedes any and all prior and contemporaneous undertakings among the Parties in connection therewith. Any modification to this Settlement Agreement, whether modified by the Parties or any court, will become binding only if signed by all the Parties or their authorized representatives.

13. HEADINGS. The headings used in this Settlement Agreement are intended for the convenience of the reader only and shall not affect the meaning or interpretation of this Settlement Agreement.


mailto:[email protected]

mailto:[email protected]

13

14. CHOICE OF LAW. All terms of this Settlement Agreement shall be governed by and interpreted according to the substantive laws of Colorado without regard to its choice of law or conflict of law principles.

15. CONSENT TO JURISDICTION. The Defendants and Plaintiffs hereby irrevocably submit to the exclusive jurisdiction of the District Court, for any suit, action, proceeding or dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement Agreement. Nothing in this paragraph shall prohibit (a) the assertion in any forum in which a claim is brought that any release herein is a defense, in whole or in part, to such claim or (b) in the event that such a defense is asserted in such forum, the determination of its merits in that forum.

16. ATTORNEYS’ FEES. Each Party shall bear its own attorneys’ fees and costs associated with litigating this Action and negotiating or implementing this Settlement (other than as provided for in this Settlement Agreement or as ordered by the Court).

17. RESERVATION OF RIGHTS; NO ADMISSION. This Settlement Agreement shall not be admissible for any purpose except in an action to enforce its terms. It is expressly understood that by entering into this Settlement Agreement and by filing a paper supporting approval of the Settlement, Defendants do so for settlement purposes only. Nothing in this Settlement Agreement, nor any other Settlement-related document, nor any proceedings undertaken in accordance with the terms set forth in the Settlement Agreement shall constitute, be construed as or be deemed to be evidence of or an admission or concession by the Defendants as to whether any class, in this case or others, may be certified for purposes of litigation and trial, or as an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by Defendants or of the truth of any of the claims or allegations made in this action. Defendants expressly and fully reserve their rights to defend this action and oppose certification of a litigation class if for any reason this Settlement does not become final as provided in Paragraph 3(d). Nothing in this Settlement Agreement, any other Settlement-related document, or any proceedings undertaken in accordance with the terms set forth in the Settlement Agreement shall constitute, be construed as or be deemed to be evidence of or an admission or concession by the Named Plaintiffs or Settlement Class Members of the absence of any liability or violation of any statute or law by the Defendants or the absence of any liability or wrongdoing by the Defendants or be used or deemed or construed to rebut any claims alleged by the Named Plaintiffs or Settlement Class Members in either the District Court or the Court of Appeals or the Supreme Court. The Named Plaintiffs expressly and fully reserve all their rights to advance all their claims and seek class certification and entry of judgment if for any reason this Settlement does not become final as provided in Paragraph 3(d).


14

18. EXECUTION IN COUNTERPARTS. This Settlement Agreement may be executed in counterparts. Signatures transmitted by facsimile or other electronic means shall be considered as valid signatures as of the date hereof.

[The remainder of this page is intentionally left blank.]


15

IN WITNESS WHEREOF, the Parties hereto through their fully authorized representatives have agreed to this Settlement Agreement as of May 18, 2016.


r I

By: c£:-__,7 / L- f Merrill G. Davidoff, Esquire David F. Sorensen, Esquire Berger & Montague, P.C. 1622 Locust Street Philadelphia, P A 19103 Phone:215-875-3000 [email protected] [email protected]

Dated: _:..._IY1[0_1J. +---) ~+--J [)._0_/6_ Counsel for Named Plaintiffs and Settlement Class Members

By: ____________________ __

Gary B. Blum, Esquire Steven W. Kelly, Esquire Silver & DeBoskey, P.C. 1801 York Street Denver, CO 80206 Phone: 303-399-3000 [email protected] [email protected]

Dated: __________ _

Counsel for Named Plaintiffs and Settlement Class Members

By: ____________________ __

Louise Roselle Paul M. De Marco Markovits, Stock & DeMarco

By: ___________________ __

Michael A. Glackin Assistant General Counsel Litigation and EH&S Legal

The Dow Chemical Company

Dated: ___________________ _

By: ____________________ _

J. Steven Rogers Chief Counsel

The Boeing Company

Dated: ------------

By: ____________________ __

Douglas M. Hagerman SVP, General Counsel & Secretary Rockwell Automation, Inc.

As indemnitor to Boeingfor Boeing's obligations under this Settlement Agreement

Dated: --------------------

16








18

EXHIBIT A


EXHIBIT B




Defendants.

[PROPOSED] JUDGMENT AGAINST THE DOW CHEMICAL COMPANY

1. This action was settled pursuant to a settlement agreement (the “Settlement

Agreement”) dated May ___, 2016. This Court entered an order granting preliminary approval

of the settlement on [DATE] and an order granting final approval of the settlement on [DATE]].

2. The Dow Chemical Company (“Dow”) is a party to the Settlement Agreement

and, pursuant to Paragraph 2 of the Settlement Agreement, shall pay a total of $131,250,000 into

a previously agreed escrow account on the earlier of (i) one year following the date the Court

enters the Preliminary Approval Order, (ii) July 28, 2017, or (iii) ten (10) business days from the

date on which the United States Department of Energy (“DOE”) satisfies its nuclear hazard

indemnification obligations to Defendants by transferring to Defendants $375,000,000. In

calculating Dow’s final payment amount, Dow shall receive credit for any payments it has made

pursuant to Paragraphs 2(a) and 2(b) of the Settlement Agreement.


2

Accordingly, IT IS ORDERED THAT judgment is entered for Plaintiffs against Dow in

the amount of $131,250,000 less any payments Dow made pursuant to Paragraphs 2(a) and 2(b)

of the Settlement Agreement, and Plaintiffs, subject to the conditions and requirements of

Paragraph 2(h) of the Settlement Agreement, may take action to execute this judgment against

Dow assets, plus any applicable penalties as set forth in Paragraph 2(f)(ii) of the Settlement

Agreement, in any court of competent jurisdiction. Any amounts Plaintiffs collect pursuant to

this Judgment remain subject, as appropriate, to the terms of the Settlement Agreement.

Dated : [DATE] ____________________________ Hon. John L. Kane, Senior District Judge United States District Court District of Colorado


EXHIBIT C




Defendants.

[PROPOSED] JUDGMENT AGAINST THE BOEING COMPANY AS SUCCESSOR-IN-

INTEREST TO ROCKWELL INTERNATIONAL CORPORATION

1. This action was settled pursuant to a settlement agreement (the “Settlement

Agreement”) dated May ___, 2016. This Court entered an order granting preliminary approval

of the settlement on [DATE] and an order granting final approval of the settlement on [DATE]].

2. The Boeing Company as successor-in-interest to Rockwell International

Corporation (“Rockwell”) is a party to the Settlement Agreement and, pursuant to Paragraph 2 of

the Settlement Agreement, shall pay a total of $243,750,000 into a previously agreed escrow

account on the earlier of (i) one year following the date the Court enters the Preliminary

Approval Order, (ii) July 28, 2017, or (iii) ten (10) business days from the date on which the

United States Department of Energy (“DOE”) satisfies its nuclear hazard indemnification

obligations to Defendants by transferring to Defendants $375,000,000. In calculating


2

Rockwell’s final payment amount, Rockwell shall receive credit for any payments it has made

pursuant to Paragraphs 2(a) and 2(b) of the Settlement Agreement.

Accordingly, IT IS ORDERED THAT judgment is entered for Plaintiffs against

Rockwell in the amount of $243,750,000 less any amounts Rockwell has paid pursuant to

Paragraphs 2(a) and 2(b) of the Settlement Agreement, and Plaintiffs, subject to the conditions

and requirements of Paragraph 2(h) of the Settlement Agreement, may take action to execute this

judgment against Rockwell assets, plus any applicable penalties as set forth in Paragraph 2(f)(ii)

of the Settlement Agreement, in any court of competent jurisdiction. Any amounts Plaintiffs

collect pursuant to this Judgment remain subject, as appropriate, to the terms of the Settlement

Agreement.

Dated : [DATE] ____________________________ Hon. John L. Kane, Senior District Judge United States District Court District of Colorado


EXHIBIT D

FILED AS A RESTRICTED DOCUMENT PURSUANT TO LOCAL CIVIL RULE 7.2


Exhibit 2




MERILYN COOK, et al.,


Defendants.

[PROPOSED] PLAN OF ALLOCATION OF THE SETTLEMENT FUND

Before the Court is Plaintiffs’ proposed plan of allocation. The Court being fully advised

in the premises, and for good cause shown, the Court hereby ORDERS as follows:

A. Definition of Terms

1. For purposes of this Plan of Allocation:

a. The terms “Settlement Class”, the “Class”, or the “Property Class” “Class”

means the Class certified by the Court pursuant to Rule 23(b)(3) on May 19, 2016 (Doc. No.

2396), which is defined as:

The Property Class includes all persons and entities who have not previously opted out or who do not timely opt out of the class who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants’ affiliates, parents, and subsidiaries. The Property Class Area is a geographic area near the former Rocky Flats Nuclear


2

Weapons Plant in Colorado; its boundary is portrayed in the map attached hereto as Appendix A [to the May 19, 2016 Order].1

b. The term “Settlement Fund” means the sum of all payments made by

Defendants Rockwell International Corporation (“Rockwell”) and The Dow Chemical Company

(“Dow”) (collectively, “Defendants”) pursuant to the Settlement Agreement entered into on May

18, 2016, inclusive of attorneys’ fees, expenses, costs, and inclusive of any interest earned

through such investments as the Court may direct following Defendants’ payment of the

judgment.

c. The term “Settlement and Claims Administrator” means the officer

appointed by the Court pursuant to separate Order to recommend an allocation of settlement

funds and to perform such incidental and additional duties as are set forth in this Order or as the

Court may subsequently direct.

d. The term “Net Settlement Fund” means the Settlement Fund, less:

(i) service awards to the Class Representatives approved by the Court; (ii) fees, expenses, and

costs awarded from the Settlement Fund to counsel for Class Representatives and the Class

approved by the Court; (iii) compensation and expenses paid or reimbursed to the Settlement and

Claims Administrator approved by the Court; and (iv) any additional administrative expenses

that may be charged against the Settlement Fund as approved by the Court.

e. The term “Net Commercial Property Settlement Fund” means the portion

of the Net Settlement Fund allocable to the commercial property category under the formula set

forth in paragraph 9 of this Order.

1 Plaintiffs have filed a motion to substitute the map attached as Appendix A to the Court’s

Order Certifying Settlement Class, Doc. No. 2396 with a clearer, more complete map; the map originally attached as Appendix A to the Order Certifying Settlement was inadvertently cut off. The map attached hereto as Appendix A is the correct, complete map of the Property Class Area.


3

f. The term “Net Residential Property Settlement Fund” means the portion of

the Net Settlement Fund allocable to the residential property category under the formula set forth

in paragraph 9 of this Order.

g. The term “Net Vacant Property Settlement Fund” means the portion of the

Net Settlement Fund allocable to the vacant property category under the formula set forth in

paragraph 9 of this Order.

C. Duties of the Settlement and Claims Administrator

2. The Settlement and Claims Administrator shall be responsible for developing a

recommended allocation (“Proposed Allocation”) of the Net Settlement Fund. The Settlement

and Claims Administrator may retain such outside consultants as necessary to do so, including

Wayne L. Hunsperger, MAI.

3. The Proposed Allocation shall be developed under the guidelines set forth in this

Plan of Allocation, under supervision from the Court, and subject to ultimate approval by the

Court.

4. The Settlement and Claims Administrator shall have such additional duties in

connection with the allocation of the Net Settlement Fund and administration of claims as set

forth in this Plan of Allocation or in subsequent directives from this Court.

5. The Settlement and Claims Administrator shall report to the Court from time to

time to advise the Court of its progress in discharging its responsibilities under this Plan of

Allocation, on such occasions and at such intervals as the Settlement and Claims Administrator

may deem appropriate or as the Court may direct.

6. The Settlement and Claims Administrator is authorized to make reasonable

expenditures to secure the resources and assistance reasonably necessary to the performance of


4

its duties. Such expenses, and the compensation of the Settlement and Claims Administrator at

its usual and customary hourly rates, will be paid and reimbursed from the Settlement Fund

periodically, subject to Court approval and to the extent that the Settlement Fund has sufficient

monies to cover such reimbursements.

D. Procedures and Principles for the Proposed Allocation

7. For each property located in the Property Class Area (“Class Property”), the

Settlement and Claims Administrator shall consult appropriate records and data, from Jefferson

County and Broomfield County, Colorado, and such other sources as the Settlement and Claims

Administrator may reasonably determine to be suitable and reliable,2 for the purposes of:

(a) determining ownership of the Class Property as of June 7, 1989; (b) associating the property,

and its owner(s) as of June 7, 1989; and (c) assigning the Class Property to one of the three

property categories: commercial, residential, or vacant as of June 7,1989.

8. For each of the three property categories, the Settlement and Claims

Administrator shall compute the category’s share of the Net Settlement Fund. The total sum

allocable to each category shall bear the same ratio to the Net Settlement Fund as the jury’s

award of compensatory damages for that category bears to the total of all compensatory damages

awarded by the jury for all three categories combined: 3.196% of the Net Settlement Fund will

be allocable to commercial properties; 81.537% of the Net Settlement Fund will be allocable to

residential properties; and 15.267% of the Net Settlement Fund will be allocable to vacant land.

9. Based on Jefferson County and Broomfield County tax assessment records from

April 1989 and such other sources as the Settlement and Claims Administrator may reasonably

2 The information obtained from Jefferson County and Broomfield County relates to property

assessments completed in April 1989, which is closest in time to June 7, 1989, along with property code type data from 1992, the earliest date on which such property type data is available.


5

determine to be suitable and reliable, the Settlement and Claims Administrator shall determine,

for each Class Property, the Class Property’s assessed value, expressed as a fraction of the total

assessed value of all Class Properties within the same category (the property’s “Fractional

Allocable Share”).

10. The Proposed Allocation shall compute an award for each member of the Class,

based on the Class member’s property’s Fractional Allocable Share of the Net Settlement Fund

apportioned to that category. For example, for a residential property, the Proposed Allocation

will present an award based on the property’s Fractional Allocable Share multiplied by the Net

Residential Property Settlement Fund.

11. It is anticipated that after the first distribution of settlement proceeds there will be

unclaimed or residual funds and that a second distribution will be needed. Class Counsel

anticipate that, subject to Court approval, in any such second or subsequent distribution the

properties closest to the former Rocky Flats plant will be given an extra weighting and so will

receive relatively more in such subsequent distributions.

E. Procedures for Payment of Claims

12. Prior to disbursement of any funds to members of the Class, the Court will

establish appropriate procedures for approval of the Proposed Allocation, for notifying Class

members of their awards under the Proposed Allocation, and for proceedings through which

Class members have an opportunity to seek adjustment of their awards under the Proposed

Allocation.


6

F. Disposition of Unclaimed Funds

13. Subject to further order of the Court, any funds allocable to the Class that remain

unclaimed, after due allowance of a period for late claims, shall be distributed to members of the

Class on a pro rata basis, subject to paragraph 11, above.

14. Insofar as the Net Settlement Fund includes residual funds after distribution(s) as

set forth in the preceding paragraphs that cannot be economically distributed to the Class

(because of the costs of distribution as compared to the amount remaining), Class Counsel shall

make an application to the Court, with notice to Defendants, for such sums to be used to make cy

pres payments for the benefit of members of the Class. What this means is that, subject to Court

approval, the money may be used, for example, to make a donation to a group or groups whose

interests are aligned with Class members or otherwise as directed by the Court.

15. The Court retains exclusive jurisdiction over the Settlement and the Plan of

Allocation of the Settlement Fund.


Exhibit 3




MERILYN COOK, et al.,

Plaintiffs,

V.

ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMP ANY,

Defendants.

DECLARATION OF EDWARD J. RADETICH, JR., HEFFLER CLAIMS GROUP, IN SUPPORT OF PLAINTIFFS' MOTION FOR FINAL

APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AND APPROVAL OF PROPOSED PLAN OF ALLOCATION OF THE

SETTLEMENT FUND

I, Edward J. Radetich, Jr., CPA, declare as follows:

1. I am a partner of Heffler Claims Group ("Heffler"), the Court-approved

Settlement and Claims Administrator. See the Court's Order Appointing the Heffler Claims

Group as Settlement and Claims Administrator, Doc. No. 2417. I am over 21 years of age and

not a party to this action. I have personal knowledge of the facts set forth herein and, if called as

a witness, could and would testify competently thereto.

2. I submit this declaration in connection with Plaintiffs' Motion for Final Approval

of Proposed Class Action Settlement and Approval of Plan of Allocation.

1


3. In response to the Notice Plan implemented last autumn, Heffler has received

three requests from Class members requesting exclusion from the Class, or "opting out" of the

Class. These three opt-out requests are attached to this declaration as Exhibits 1-3.

4. Heffler has also received: (1) an objection from William D. Thomas, which was

filed on the Court's docket on November 17, 2016 (see Docket Number 2421); and (2) an

objection from Kathleen Snapp, which was filed on the Court's Docket on February 23, 2017

(see Docket Number 2445). Heffler has not received any other objections to the Settlement.

5. To date, Heffler has received 5,600 claim forms in this matter.

6. On March 9, 2017, 25,272 reminder notices were mailed to potential Class

members reminding them of the June 1, 2017 deadline to file claims pursuant to the Court's

March 3, 2017 Order (see Docket Number 2449).

Edward J. Radetich, Jr. Dated: March 29, 2017


EXHIBIT 1


Heffler Claims Group P.O. Box 58459 Philadelphia, PA 19102-8459

Dear Sirs:

30281 P100006

I 1111111111111111111111111111111 IIIII IIII IIII

September 22, 2016

My wife and I owned property within the area shown as part of the Class Action in Cook et al. V. Rockwell International Corporation and The Dow Chemical Company, Civil Action No. 90-00181-JLK (D. Colo.). The property was in Joint Tenancy, both names. We did own the property on June 7, 1989. The address of the Property was: 8780 West 84th Avenue, Arvada, Colorado.

The purpose of our letter is to express our joint desire to "opt out" of the specified law suit. Our reason for doing this is we have no desire to be part of the action specified. Please remove our names and the property from the law suit.

Lynn M. Jacobson and Patricia A. Jacobson, currently residing at 4498 So. Peaceful River Drive, St. George, Utah 84790.

~Y>JS.~~ ynnMcDowell Jacobson

I I Date


EXHIBIT 2


30281 P100067

~ . ;- ~ ~~~ Dt:t :;ding Ret 111111111111111\l lllll lllll lllll Ulll 11111111 , . ·; 7' Franklin, WV 26807-5534

'5t r-S 1 ---. -1- .Ae.:liYlrj <)z.o.o ~ z.. . -Iv

~'qpf fJJ' · o J ff. e e I Q.-6s &h~J//. ~-1-<,,f I J1 ~ok e.f-aJ, V- £~kwell

fJ.evnA,[email protected] C:i7a-v-J,0Pf a.n J. II-tu

Vow 1.L.e~,ut.1 ~/4-rl)'"' . _ C.0/M(ln ~ .. C/t1_-~/)1~J~LX

On ~e.-11

J'!B'l r_ aw/le.J a..J.. Li't-e-~1.e.d +h.e.. -r£--!i1deVtc.e aT _ ~ /O~g3 ~{ardovtWt;.i

,, , -~ , {3y-coMfieid, tO /~ .._, . , ( 8DVZIJ - flJZb

-< ,ry'' :: . 1-15;-0/;;1;;~~( _(.;-- t7~ ty

1 ,.,,, n ,-;:~n.- µbout thL· I .1•!:,.,t,1 (' · · '\ 1 ud!.rrt' al 1fj()_,!",r_J:. r11Jtr1n·.


EXHIBIT 3


February 28, 2017

Settlement and Claims Administrator Heffler Claims Group P.O. Box 58459 Philadelphia, PA 19102-8459

RE: Class Action Settlement Cook et al. v. Rockwell International Corporation and The Dow Chemical Company, Civil Action No. 90-00181-JLK (D. Colo.)

Property Location 10342 Robb Court, Westminster, CO 80021

To the Settl ement and !aims Administrator ror the Se ttl ement:

Due to the fact that the Rocky Flats Nuclear Weapons Plant was in operation long before our home, located in the Class Action area, was built, we would like to exclude ourselves from the Class Action Settlement Cook et al. v. Rockwell International Corporation and The Dow Chemical Company, Civil Action No. 90-00181-JLK (D. Colo.).

We were both employed at the Rocky Flats Nuclear Weapons Site and drew a salary from Rockwell International, the Contractor who managed the site during the duration of our employment, so it was no surprise in 1984, when we bought the home at 10342 Robb Court, that the Rocky Flats Nuclear Weapons Site was located in very close proximity, uphill and to the West. It was very appealing to buy a home close to the Plant to have a quick commute to work.

In 1999, when we made the decision to sell the house on Robb Court and move our family to a larger home a few miles away, we had no trouble selling the house and getting a fair market price.

Thank you for excluding us both from this Class Action Settlement. We have no intention of pursuing legal action.

Should you need further infoni1ation, please contact us ~t303-420-5136 .. Our Current Mailing address is P.O. Box 74551 2 Arvada, CO 80006.

7;~h-William T. Spinuzzi

~12cl~-Teresa L. Spinuzzi

Cc: United States District Judge John L. Kane, United States District Court of Colorado, Alfred A. Arraj United States Courthouse, 901 19111 St., Denver CO 80294-3589

Counsel for Dow and Rockwell: Bradley H. Weidenhammer, KIRKLAND & ELLIS LLP, 300 North LaSalle, Chicago, IL 60654

Lead Counsel for the Class: Merrill G. Davidoff and David F. Sorensen, BERGER & MONTAGUE, P.C., 1622 Locust Street, Philadelphia, PA 19103


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Case 1:90-cv-00181-JLK Document 2459 Filed 03/30/17 USDC Colorado Page 7 of 36 3 Settlement Agreement would be the final