February 19, 2010
Twelve Instead of Six? Developments in the WTC Disaster Site Litigation
Initially Judge Hellerstein had ordered six bellwether trials. Now apparently he is conducting 12. In the order naming the 12, I saw reference to a status conference in which the reasons for the number were apparently discussed. So I went down to 500 Pearl Street, where the Southern District of New York is located, to read the transcript of that conference. I learned some interesting things, but not why 12 instead of 6 (or 30 for that matter, which is the number of cases of the 9,000 or so in the litigation that are proceeding to trial readiness). The judge has also not yet decided whether cases will proceeding one after another or simultaneously before multiple judges, but he is against grouping cases together for trial.
The term sheet for the settlement is 70 some odd pages according to the judge. This means that the settlement discussions are quite advanced. The lead lawyers did not want to say anything about the discussions in open court. But one lawyer did complain that he wasn't involved in the discussions.
Also, although the judge was clear that this is not a class action and that he had refused to certify it has such, he is planning to hold a fairness hearing about the settlement, should one be reached. Here's what he says: "...because of the extraordinary public interest in this case and because of the limited nature of the funds that are available for settlement, that there will undoubtedly be fairness proceedings that will be part of the settlement. That means that what is fair and reasonable will have to be determined by the court, subject to the right of appeal."
Judge Hellerstein also stressed the importance of fairness to individual plaintiffs.
....my conception of fairness relates not only to the aggregate size of the settlement, but more to the individual settlements themselves. .... I regard the 9,000 cases as just those, 9,000 separate cases. Many of them are similar. Many of them can be ranked for convenience into categories, but in their fundamental aspects they have an individual plaintiff in each individual case, plus the possibility of additional family members. But they all revolve around one personal injury or one death, as they case may be.
So the fairness to individuals is an extremely important aspect of settlement. And I will be looking carefully, if and when there is a settlement at how individual members are treated.
If any readers know why 12 and not 6 (or 30) please contact me.
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