IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, et al.

 

 Plaintiffs,

 vs.

BASF CATALYSTS LLC, et al.

 

 Defendants.

No. 2:11-cv-01754 (ES) (JAD)

CIVIL ACTION

COHEN, PLACITELLA & ROTH, P.C.

Christopher M. Placitella, Esq. 

Michael Coren, Esq. 

Jared M. Placitella, Esq.

Eric S. Pasternack, Esq.

127 Maple Ave

Red Bank, New Jersey 07701

(Tel): (732) 747-9003

(Fax): (732) 747-9004

Attorneys for Plaintiffs and the Proposed Class

PLAINTIFFS’ MEMORANDUM OF LAW

IN SUPPORT OF PRELIMINARY APPROVAL OF 

THE CLASS ACTION SETTLEMENT 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 1 of 98 PageID: 47362
ii

TABLE OF CONTENTS

I. Introduction .........................................................................................................1

II. Factual Background ............................................................................................3

A. Emtal Talc and the Johnson Mine .................................................................3

B. Historical asbestos litigation. ........................................................................3

C. Plaintiffs’ class action claims........................................................................4

D. The initial proceedings in this Court.............................................................5

E. The Third Circuit decision. ...........................................................................6

F. The proceedings in this Court following remand..........................................7

G. Mediation efforts. ........................................................................................10

III. Material Terms of the Settlement ..................................................................15

A. The Settlement Class definition. .................................................................15

B. Benefits to the Settlement Class Members..................................................16

C. Class Counsel Fees and Litigation Cost Reimbursement. ..........................16

D. Non-monetary benefits to the settlement Class...........................................17

E. The Plan of Distribution..............................................................................18

1. Establishment of a settlement claims facility and appointment of a 

Settlement Trustee, Claims Administrator and Lien Administrator.................19

2. Proposed distribution of the Settlement Fund among Class Members....22

a. Payments under the Plan’s Part A program. .........................................23

b. Payments under the Plan’s Part B program. .........................................25

Table 1............................................................................................................29

Hypothetical Part B Payment Share Estimates*............................................29

c. Payments under the Plan’s Part C discretionary EIF program. ............29

F. The Plan of Notice.......................................................................................33

IV. Argument .......................................................................................................38

A. The Parties are entitled to a presumption that the settlement is fair. ..........41

1. The proposed settlement is the product of good faith, extensive arm’s 

length negotiations. ...........................................................................................41

2. Extensive discovery and proceedings before the Third Circuit, District 

Court, and Special Discovery Master preceded the settlement. .......................43

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 2 of 98 PageID: 47363
iii

3. The proponents of the settlement are experienced in similar litigation...44

B. The complexity of these proceedings and advanced stage of litigation 

support approving the Settlement. .......................................................................44

1. Complexity, Expense, and Likely Duration of the Litigation..................46

2. Reaction of the Class to the Settlement. ..................................................48

3. Stage of the Proceedings and Amount of Discovery Completed.............49

C. Risks to continued litigation also support approving the Settlement..........50

1. The availability of witnesses at trial. .......................................................51

2. Defenses relating to Underlying Lawsuits...............................................53

3. Establishing Damages. .............................................................................55

4. Ascertaining the Proposed Class..............................................................58

5. “Science Day” And The Emtal Talc Testing Record...............................59

D. Other factors also support approving the Settlement. .................................61

1. Ability of Defendants to Withstand a Greater Judgment.........................61

2. Range of Reasonableness of the Settlement in Light of the Best Possible 

Recovery and All Attendant Risks of Litigation. .............................................62

3. Prudential Factors....................................................................................64

C. The Court should conditionally certify the Settlement Class. ....................67

1. Numerosity...............................................................................................69

2. Commonality............................................................................................70

3. Typicality. ................................................................................................71

4. The Representative Plaintiffs’ interests fully align with those of the 

putative Settlement Class as they made the same fraud, fraudulent concealment 

and conspiracy claims under New Jersey law...................................................73

a. Representative Plaintiffs. ......................................................................73

b. Class Counsel........................................................................................77

5. The Court should conditionally certify a settlement class under Rule 

23(b)(3) for monetary relief. .............................................................................78

a. Common questions of law and fact predominate..................................78

b. Superiority.............................................................................................82

D. The proposed form and method of class notice satisfy due process. ..........83

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 3 of 98 PageID: 47364
iv

E. The plan of distribution treats class members equitably relative to each 

other......................................................................................................................86

V. Conclusion .....................................................................................................89

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 4 of 98 PageID: 47365
v

TABLE OF CONTENTS

Cases

Amchem Prods v. Windsor, 

521 U.S. 591 (1997)................................................................................ 75, 79, 81

Baby Neal v. Casey, 

43 F.3d 48 (3d Cir. 1994).............................................................................. 72, 73

Class Plaintiffs v. City of Seattle, 

955 F.2d 1268 (9th Cir. 1992) .............................................................................87

County of Essex v. First Union Nat’l Bank, 

89 A.2d 600 (N.J. 2006).......................................................................................56

Dewey v. Volkswagen Aktiengesellschaft, 

681 F.3d 170 (3d Cir. 2012).................................................................................74

Ehrheart v. Verizon Wireless, 

609 F.3d 590 (3d Cir. 2010).................................................................................39

Gates v. Rohm & Haas Co., 

248 F.R.D. 434, 439 (E.D. Pa. 2008)...................................................................42

Girsh v. Jepson, 

541 F.2d 153 (3d Cir. 1975)......................................................................... passim

Grunewald v. Kasperbauer, 

235 F.R.D. 599 (E.D.Pa. 2006)............................................................................85

In re Baby Prods. Antitrust Litig., 

708 F.3d 163 (3d Cir. 2013).................................................................................46

In re Cendant Corp. Litig., 

264 F.3d 201 (3d Cir. 2001).............................................................. 41, 46, 66, 76

In re CIGNA Corp. Sec. Litig., 

No. 02-8088, 

2007 U.S. Dist. LEXIS 51089 (E.D. Pa. July 13, 2007)......................................42

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 5 of 98 PageID: 47366
vi

In re Community Bank of Northern Virginia, 

418 F.3d 277 (3d Cir. 2005).................................................................................73

In re Computron Software, 

6 F. Supp. 2d 313 (D.N.J. 1998)..........................................................................87

In re Federal Skywalk Cases, 

97 F.R.D. 380 (W.D. Mo. 1983)..........................................................................87

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 

55 F3d 768 (3d Cir. 1995)....................................................................................74

In re GMC Truck Fuel Tank Prods. Litig., 

55 F.3d 768 (3d Cir. 1995)...................................................................................63

In re IGI Secs. Litig., 

122 F.R.D. 451 (D.N.J. 1988)..............................................................................72

In re Modafinil Antitrust Litig., 

837 F.3d 238 (3d Cir. 2016).................................................................................69

In re NFL Players Concussion Injury Litig., 

821 F.3d 410 (3d Cir. 2016).................................................................... 41, 66, 71

In re Omnivision Techs., 

559 F. Supp. 2d 1036 (N.D. Cal. 2007)...............................................................87

In re Oracle Sec. Litig., 

No. 90-931, 

1994 U.S. Dist. LEXIS 21593 (N.D. Cal. 1994) .................................................87

In re Pet Foods Products Liability Litigation, 

629 F.3d 333 (3d Cir. 2010).......................................................................... 75, 76

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 

148 F.3d 283 (3d Cir. 1998)......................................................................... passim

In re Royal Dutch/Shell Transp. Sec. Litig., 

No. 04-374, 2008 U.S. Dist. LEXIS 124269 (D.N.J. 2008)................................88

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 6 of 98 PageID: 47367
vii

In re Schering Plough Corp., 

589 F.3d 585 (3d Cir. 2009).................................................................................72

In re Warfarin Sodium Antitrust Litig., 

391 F.3d 516 (3d Cir. 2004)......................................................................... passim

Krell v. Prudential Ins. Co. of Am., 

148 F.3d 283 (3d Cir. 1998).................................................................................39

Lipuma v. Am. Express Co., 

406 F. Supp. 2d 1298 (S.D. Fla. 2005)................................................................48

Maley v. Del Global Techs. Corp., 

186 F. Supp. 2d 358 (S.D.N.Y. 2002) .................................................................87

Mullane v. Central Hanover Bank & Trust Co., 

339 U.S. 306 (1950).............................................................................................84

NFL Players Concussion Injury Litig., 

821 F.3d 410 (3d Cir. 2016)......................................................................... passim

Petrovic v. Amoco Oil Corp., 

200 F.3d 1140 (8th Cir. 1999) .............................................................................76

Platinum Mgmt., Inc. v. Dahms, 

666 A.2d 1028 (N.J. Law Div. 1995) ..................................................................56

Rodriguez v. Nat’l City Bank, 

726 F.3d 372 (3d Cir. 2013).................................................................................70

Saini v. BMW of N. Am., LLC, 

No. 12-6105, 

2015 U.S. Dist. LEXIS 66242 (D.N.J. May 21, 2015)........................................62

Stewart v. Abraham, 

275 F.3d 220 (3d Cir. 2001).................................................................................69

Tartaglia v. UBS PaineWebber, Inc., 

961 A.2d 1167 (N.J. 2008)...................................................................................53

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 7 of 98 PageID: 47368
viii

Turner v. NFL (In re NFL Players’ Concussion Injury Litig.), 

301 F.R.D. 191 (E.D. Pa. 2014).................................................................... 41, 66

Tyson Foods, Inc. v. Bouaphakeo, 

__ U.S. __, 136 S. Ct. 1036 (2016)......................................................................79

Williams v. BASF Catalysts LLC, 

765 F.3d 306 (3d Cir. 2014)...................................................................................7

Williams v. BASF Catalysts LLC, 

No. 11-1754, 

2012 U.S. Dist. LEXIS 175918 (D.N.J. Dec. 12, 2012)........................................6

Williams v. BASF Catalysts LLC, 

No. 11-1754, 

2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016)............................................7

Williams v. BASF Catalysts, LLC, 

No. 11-1754, 

2017 U.S. Dist. LEXIS 122053 (D.N.J. Aug. 3, 2017) .............................. 8, 9, 53

Winoff Industries v. Stone Container Corp. (In re Linerboard Antitrust Litig.), 

305 F.3d 145 (3d Cir. 2002).................................................................................81

Zippertubing Co. v. Teleflex Inc., 

757 F.2d 1401 (3d Cir. 1985)...............................................................................56

Statutes

N.J.S.A. § 2C:41-1.....................................................................................................5

N.Y.J.L. § 487............................................................................................................5

Rules

Fed. Civ. P. 23(e) ........................................................................................ 41, 42, 43

Fed. R. Civ. P. 23(a).......................................................................................... 71, 72

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 8 of 98 PageID: 47369
ix

Fed. R. Civ. P. 23(a)(1)..................................................................................... 71, 72

Fed. R. Civ. P. 23(a)(2)............................................................................................72

Fed. R. Civ. P. 23(a)(3)............................................................................................74

Fed. R. Civ. P. 23(c)(2)(B) ......................................................................................86

Fed. R. Civ. P. 23(e)(1)............................................................................................86

Fed. R. Civ. P. 23(e)(2)............................................................................................42

Fed. R. Civ. Pro. 53..................................................................................................19

Treatises

Restatement (Third) Restitution and Unjust Enrichment § 51 (2011).....................58

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 9 of 98 PageID: 47370
1

I. Introduction

After more than nine years of contentious litigation and extensive discovery, 

the parties, with the assistance of mediators, have reached a proposed class action 

settlement that is fair, reasonable and adequate for Class Members. The settlement 

recognizes that the Plaintiffs and the Defendants each face substantial risks and 

costs in proceeding further with this litigation, and that resolving the case now 

provides benefits to both sides.

Under the terms of the Settlement Agreement, Defendants BASF Catalysts 

LLC (“BASF”) and Cahill Gordon & Reindel LLP (“Cahill”) (collectively 

“Defendants”) will establish a non-reversionary $72.5 million settlement fund 

(“Settlement Fund”) to compensate members of a proposed Settlement Class.

Exhibit A.1 In addition, BASF and Cahill will pay up to $3.5 million for the costs 

of providing a notice program to the proposed Settlement Class and for the 

administration of the claims submitted to the Settlement Fund. Defendants have 

further agreed that, subject to Court approval, the six Representative Plaintiffs 

(“Representative Plaintiffs” or “Plaintiffs”) will be paid representation service 

awards from the Settlement Fund in an amount not to exceed $50,000 each 

($300,000 in the aggregate). Defendants BASF and Cahill have also agreed to not 

1 Capitalized terms have the same meaning as in the parties’ Class Action 

Settlement Agreement. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 10 of 98 PageID: 47371
2

oppose the petition for attorney’s fees and litigation expenses by Class Counsel to 

be awarded by the Court up to a maximum of $22.5 million and $1.2 million, 

respectively. All told, the proposed class settlement provides a substantial benefit 

package of nearly $100 Million to the Settlement Class Members in exchange for 

releasing Defendants along with the individual co-defendants named in the 

Williams Action, thereby ending the present litigation for all time. 

The proposed class settlement is fair, reasonable and adequate, and it readily 

satisfies the elements of Rule 23 of the Federal Rules of Civil Procedure. The 

proposed settlement includes a notice program that satisfies Rule 23 as well as 

constitutional and judicial guidelines. The proposed settlement’s terms and 

structure, moreover, provide the proposed Settlement Class with a substantial cash 

payment. 

Plaintiffs, without opposition from Defendants, now seek preliminary 

approval of the Class Action Settlement, a stay of this litigation and all Related 

Actions as defined in the Settlement Agreement, conditional certification of the 

putative Settlement Class, approval and authorization of the Notice Program, 

authorization to commence Interim Claims Processing under the proposed Plan of 

Distribution, and the setting of a schedule for final approval.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 11 of 98 PageID: 47372
3

II. Factual Background

A. Emtal Talc and the Johnson Mine

From 1967 to 1983, a subsidiary of Engelhard Corporation mined talc from a 

single mine in Johnson, Vermont. This mine was known as the Johnson Mine, and 

the talc produced from it was sold under the brand name Emtal Talc. Emtal Talc 

was sold and used for certain industrial and commercial purposes. This lawsuit 

does not involve exposure to any personal cosmetic products such as baby or body 

powder. In 1983, Engelhard closed the Johnson Mine. In 2006, BASF acquired 

Engelhard and renamed it BASF Catalysts LLC. 

B. Historical asbestos litigation.

In the late 1980s and continuing for many years, numerous plaintiffs began 

filing bodily injury actions against dozens of corporate defendants, alleging that 

asbestos in the defendants’ products or facilities caused the plaintiffs to develop 

asbestos-related injuries. Many of the plaintiffs worked in tire plants or other 

manufacturing facilities where they worked around raw asbestos and multiple 

asbestos-containing products. 

Although talc is not asbestos, plaintiffs in various jurisdictions named 

Engelhard and other talc companies among dozens of other defendants, alleging 

that the talc companies’ talc contained asbestos. Engelhard retained Cahill, a 

premier New York law firm and Engelhard’s longtime outside counsel, to defend 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 12 of 98 PageID: 47373
4

Engelhard in these lawsuits. Cahill served as Engelhard’s national counsel in 

asbestos litigation from the late 1980s until 2009.

C. Plaintiffs’ class action claims.

In 2009, Plaintiffs’ Counsel obtained evidence, which they believe 

contradicted the claims made by Defendants in the Underlying Lawsuits about 

Emtal Talc. On March 28, 2011, five of the current six Representative Plaintiffs 

filed this Class Action Lawsuit. The sixth Representative Plaintiff, Mrs. Rosanne 

Chernick, joined in the matter when the First Amended Class Action Complaint 

(“FAC”) was filed on August 3, 2011, after Defendants filed several Motions to 

Dismiss the initial complaint. Plaintiffs’ Second Amended Complaint (“SAC”) was 

filed on July 16, 2015.

The SAC alleges that from 1984 to 2009, Engelhard and Cahill defended 

asbestos bodily injury cases in state and federal courts in part by (1) denying that 

Emtal Talc contained asbestos, (2) by denying the existence of any evidence that it 

did and/or (3) by stating that no Engelhard employee had ever testified about the 

presence of asbestos in its talc. Plaintiffs allege that Engelhard and Cahill 

employed this defense for 25 years, allegedly resulting in thousands of dismissals, 

either voluntarily, by court order, or through Engelhard’s participation in nuisancevalue group settlements with other talc defendants (including talc defendants 

whose products were known at the time to contain asbestos).

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 13 of 98 PageID: 47374
5

Defendants have vigorously denied these allegations. In addition to denying 

that they committed the alleged fraud or that Emtal Talc contained injurious 

amounts of asbestos, Defendants argue that the Underlying Lawsuits were settled 

or dismissed for a variety of legitimate reasons. For example, Defendants point to 

evidence that many plaintiffs could not prove they were exposed to Emtal Talc, 

that some plaintiffs could not prove they suffered an asbestos-related injury, that 

some plaintiffs’ claims were time-barred, and so on. Defendants have also argued 

that Plaintiffs in this action did not suffer monetary damages given evidence that 

many plaintiffs accepted similar settlement values from other talc defendants for 

whom plaintiffs had evidence of asbestos contamination and exposure. 

D. The initial proceedings in this Court.

The FAC, as did the original complaint, alleged claims under New Jersey 

law for common-law fraud in various forms, fraudulent concealment (which 

encompasses New Jersey’s stand-alone “spoliation” tort), violation of New 

Jersey’s Racketeer Influenced and Corrupt Organizations Act (NJ-RICO), N.J.S.A. 

§ 2C:41-1, et seq., conspiracy to violate New Jersey’s RICO statute, unjust 

enrichment, and common law conspiracy. In addition, with respect to Cahill and 

the co-defendant individual attorneys, the FAC pleaded a statutory claim for 

violation of New York Judiciary Law §487 (Misconduct by attorney) (“N.Y.J.L. §

487 Claim”).

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 14 of 98 PageID: 47375
6

Defendants moved to dismiss the FAC claiming: (1) the District Court 

lacked jurisdiction over the case because of the Rooker-Feldman doctrine; (2) 

Plaintiffs had not adequately pleaded their claims; and (3) the District Court lacked 

the authority to provide Plaintiffs their requested relief because of the AntiInjunction Act and the principles of justiciability. The District Court rejected the 

challenge to its jurisdiction, but otherwise fully granted the Motions to Dismiss. 

The Court ruled that Plaintiffs’ fraud and fraudulent concealment claims were not 

actionable mainly because New Jersey’s litigation privilege immunized Defendants 

from tort liability for alleged misstatements made in the Underlying Lawsuits. The 

District Court further found that Plaintiffs failed to plead an actionable RICO 

claim, reasoning that the Underlying Lawsuits were personal injury claims, and 

that Plaintiffs’ requested relief would impermissibly undermine prior state court 

judgments in the Underlying Lawsuits. Williams v. BASF Catalysts LLC, No. 11-

1754, 2012 U.S. Dist. LEXIS 175918 (D.N.J. Dec. 12, 2012). The Court also held 

that an actionable N.Y.J.L. § 487 Claim was not alleged.

E. The Third Circuit decision. 

Plaintiffs appealed the decision dismissing the FAC to the Third Circuit, 

which reversed in part. It held that: (1) New Jersey’s litigation privilege does not 

bar Plaintiffs’ fraud and fraudulent concealment claims in view of what was 

alleged to have occurred; and (2) the FAC adequately alleged the elements of fraud 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 15 of 98 PageID: 47376
7

and fraudulent concealment under New Jersey law. The Third Circuit also affirmed 

in part, upholding the District Court’s decision to dismiss Plaintiffs’ RICO claim.2

Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 2014). 

F. The proceedings in this Court following remand.

Following the Third Circuit’s remand, Plaintiffs filed a 155-page SAC, with 

43 appended exhibits, again alleging claims against BASF and Cahill for 

fraudulent concealment, fraud, and civil conspiracy under New Jersey law. The 

District Court denied Defendants’ motions to dismiss the SAC and ordered the 

case to continue to discovery. Williams v. BASF Catalysts LLC, No. 11-1754, 2016 

U.S. Dist. LEXIS 46273, *23-27 (D.N.J. Apr. 5, 2016). To facilitate and expedite 

the discovery process and related disputes, the Court appointed retired New Jersey 

Supreme Court Justice Roberto A. Rivera-Soto as a Special Discovery Master 

(“SDM”). The SDM presided over and decided more than 50 discovery motions, as 

the parties engaged in what would become two years of extensive and hard-fought 

discovery. During this discovery phase, the parties also exchanged over 300 pieces 

of meet-and-confer correspondence, produced and reviewed hundreds of thousands 

of pages of documents and ESI equivalents, and completed 28 depositions. 

2 The Third Circuit also affirmed in part and reversed in part the District 

Court’s opinion regarding justiciability of certain of the FAC’s claims for relief,

which are not germane to the Class Action Settlement. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 16 of 98 PageID: 47377
8

One of the first significant disputes between the parties centered on the 

scope of discovery. Specifically, the parties vigorously disagreed about the extent, 

if any, to which Defendants were entitled to delve into the merits of the Underlying 

Lawsuits and discover plaintiffs’ and their original attorneys’ files and confidential 

attorney-client communications from those suits. Plaintiffs argued that the 

Defendants had forfeited the right to discovery regarding the Underlying Lawsuits 

and sought a protective order precluding that review.

After several rounds of briefing and argument, the District Court rejected 

Plaintiffs’ arguments, in part, regarding the scope of discovery and ruled that 

“exposition” of the Underlying Lawsuits was necessary. Williams v. BASF 

Catalysts, LLC, No. 11-1754, 2017 U.S. Dist. LEXIS 122053, *30, 33 (D.N.J. 

Aug. 3, 2017). To that end, the District Court ruled that the “scope of discovery 

will focus on the alleged wrongful conduct and any alleged harm following from 

that conduct” including “why Plaintiffs settled or dismissed their underlying 

claims.” Id. at *31. Chief Judge Linares ruled that “[t]o fully explore this issue, 

Defendants will be entitled to discover what Plaintiffs and their counsel knew, and 

were told, and whether any knowledge, or lack thereof, contributed to Plaintiffs’ 

decisions on resolving the underlying case.” Id. That inquiry, the Court explained, 

permitted a waiver of Plaintiffs’ attorney-client privilege and therefore warranted 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 17 of 98 PageID: 47378
9

review of the files and correspondence related to the Underlying Lawsuits. Id. at 

*32-33.

The second key issue addressed during discovery was Plaintiffs’ motion to 

compel the production of BASF’s privileged documents under the crime-fraud 

exception. Plaintiffs filed their initial crime-fraud brief on November 2, 2017. 

After considering that brief and Defendants’ opposition, the SDM held multiple 

days of oral argument regarding the threshold inquiry of whether Plaintiffs’ had 

made a prima facie showing that Defendants engaged in a crime or fraud. He 

eventually stated that he would like additional information concerning the 

scientific testing in order to help him decide the crime-fraud motion. Accordingly, 

and although Defendants’ first request for such a “Science Day” had been denied 

by the Court without prejudice, the SDM ordered that the parties provide expert 

testimony concerning the testing record. Plaintiffs objected to the SDM’s order 

providing for a Science Day, sought an emergency stay of and appealed the SDM’s 

order to the District Court. The appeal remained pending when, on June 26, 2018, 

Chief Judge Linares stayed the Action and ordered that the parties continue 

settlement discussions before Magistrate Judge Dickson. CM/ECF # 602. 

The parties also addressed a third key issue during discovery: Plaintiffs’ 

communications with Ohio attorney Thomas Bevan. Mr. Bevan represented five of 

the six class representatives in their underlying lawsuits. At deposition, most of the 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 18 of 98 PageID: 47379
10

Plaintiffs themselves indicated that they had no personal knowledge of their 

underlying cases and would rely on Mr. Bevan to provide testimony in support of 

their claims. 

Defendants moved for discovery of Mr. Bevan’s communications with 

Plaintiffs and Class Counsel, in light of Mr. Bevan’s status as a key fact witness. 

Plaintiffs opposed Defendants’ motion, claiming that those communications were 

privileged. The SDM ultimately ordered in camera review of the requested 

materials, including any communications between Mr. Bevan and Class Counsel. 

Plaintiffs appealed the SDM’s order and sought a stay from the District Court. 

Plaintiffs’ request for a stay was denied.

The SDM ruled that certain internal testing documents BASF claimed as 

privileged were discoverable. The Defendants appealed these rulings to the District 

Court. With appeals of all of the parties pending, the District Court stayed the 

Williams Action in its entirety and ordered that the parties participate in mediation.

G. Mediation efforts. 

The parties engaged in four rounds of mediation prior to reaching the present 

proposed settlement. Following remand from the Third Circuit, the parties agreed 

to pause and explore settlement through mediation. In February 2015, the parties 

participated in a mediation session before retired United States District Court 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 19 of 98 PageID: 47380
11

Judge Layn R. Phillips. The mediation did not result in a settlement and the parties 

thereafter resumed active litigation. 

In 2016, the parties agreed to again pause and return to mediation before 

Judge Phillips. Despite several mediation sessions with Judge Phillips throughout 

the summer of 2016, the parties again could not reach agreement on material terms 

and mediation ended. The parties once more resumed the litigation.

In July 2018, after the parties completed significant discovery and with 

several appeals by Plaintiffs and Defendants of the SDM’s rulings on discovery 

disputes pending before him, Chief Judge Linares entered an order staying this 

matter, including the appeals from SDM orders then pending, and directed the 

parties to appear before Magistrate Judge Dickson for a settlement conference. 

CM/ECF # 602. Judge Dickson thereafter actively supervised and participated in 

the mediation process, which included four in-person sessions before him, as well 

as telephone conferences with the parties.

Once the parties made some progress with Judge Dickson’s assistance 

toward the broad outlines of a potential settlement, the parties agreed to return 

once again to Judge Phillips for another round of mediation. After two intense, 

arms-length sessions conducted in the fall and winter of 2018, the parties in 

January 2019 forged an accord on the elements of a settlement. With an agreement 

in principle to settle the case, the parties negotiated and executed a term sheet. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 20 of 98 PageID: 47381
12

Over the succeeding thirteen months, the parties had extensive discussions over 

telephone and e-mail in addition to many in-person meetings to draft the settlement 

agreement. And with the assistance of expert consultants and after considering 

suggestions from Defendants, Plaintiffs designed the proposed Plan of 

Distribution.

As described in Judge Phillips’ Declaration, throughout the three rounds of 

mediation before him, he observed that “the parties vigorously asserted their 

respective positions on all material issues” and that these “discussions were often 

difficult, though both sides remained respectful and professional.” Exhibit B. Judge 

Phillips has further stated his view that the parties were “represented by highly 

experienced, competent, and committed counsel” who were “extremely wellversed in the complex issues involved in this class action and were therefore able 

to appreciate the merits of the case and risks of continued litigation.” Id.

Judge Phillips recognized that the proposed Settlement Agreement reflects a 

compromise between the parties. In that regard, Judge Phillips first noted that, 

based on his supervision of the settlement discussions, it is his view that 

“Plaintiffs’ Counsel weighed the risks of litigation against the need to provide 

timely benefits to the members of the proposed Settlement Class,” which might be 

delayed for years, if not altogether, without the settlement. Id. Judge Phillips next 

noted that Plaintiffs’ Counsel have argued that damages can be determined on a 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 21 of 98 PageID: 47382
13

class-wide basis. But as he observed, they have “acknowledged the risk that proof 

of these damages might entail review of individual cases to some extent, which 

owing to the passage of time since Defendants’ alleged fraudulent activity began 

nearly 30 years ago, could prove highly difficult.” Id. Judge Phillips also observed 

that based on the disclosures in the sample of underlying plaintiffs’ files produced, 

“plaintiffs at the time often accepted modest settlement amounts much like what 

Engelhard/BASF paid to those same plaintiffs.” Id. There is also some possibility 

that Plaintiffs’ motion to compel privileged documents under the crime-fraud 

exception could be denied, which would impact the proofs Plaintiffs could offer at 

trial. And lastly, Judge Phillips recognized that, in all events, “Plaintiffs would 

have to contend with other defenses such as (1) the lack of evidence of a particular 

plaintiff’s exposure to Emtal talc; (2) that some plaintiffs relied upon allegedly 

since-discredited experts to prove the diagnosis of their claimed asbestos diseases; 

(3) that some claims were dismissed for other reasons, such as being untimely 

filed; (4) that some cases were filed in the wrong jurisdiction; or (5) were 

dismissed because of some other procedural or substantive reason unrelated to the 

asbestos-content of Emtal talc.” Id.

On the other side of the coin, Judge Phillips noted the risks that Defendants 

might face if this litigation were to continue, observing that “Plaintiffs claim to 

have identified documents and testimony that contradict the representations that 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 22 of 98 PageID: 47383
14

Defendants made in the underlying cases to plaintiffs and the courts that: (1) Emtal 

talc did not contain asbestos; (2) no evidence existed that Emtal talc contained 

asbestos; and (3) no Engelhard employee had ever testified about whether Emtal 

talc contained asbestos.” Id. He also noted the possibility that this Court could 

grant Plaintiffs’ crime-fraud motion, which would result in the disclosure of 

communications that Defendants have long-claimed are protected from discovery. 

Id. Judge Phillips accordingly found that the parties “assessed and balanced the 

substantial risks if this litigation continues” and that the Class Action Settlement 

thus “reflects a sound compromise by experienced, competent counsel.” Id.

Judge Phillips further recognized that the “proposed Class Action Settlement 

resulted from arm’s-length—and indeed, often contentious—negotiations which 

were in his opinion, fair, reasonable, and adequate and produced an outstanding 

result for the thousands of members of the proposed Settlement Class as it would, 

if approved, provide timely compensation to them.” Id. In reaching this conclusion, 

Judge Phillips “found it significant that Plaintiffs would be unlikely to have 

obtained more money and benefits to the class without years more of discovery, 

trial, and appellate proceedings, where at each stage, Plaintiffs would face 

substantial risks relating to the ability to obtain class certification and the merits of 

their claim.” Id. Judge Phillips at the same time also recognized that “providing the 

benefits to the Settlement Class now would itself be a significant benefit to the 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 23 of 98 PageID: 47384
Class due to the passage of time since the alleged fraud began.” Id. Judge Phillips 

thus found that the Class Action Settlement is “fair, reasonable, and adequate” as it 

resulted “from an arm’s length and often contentious mediation process” and 

would provide “substantial benefits to the proposed Settlement Class in light of the 

risks of the litigation.” Id. 

Judge Phillips’ declaration also confirms that Class Counsel’s attorney’s 

fees, cost reimbursements and class representative service fees were neither 

discussed nor negotiated until all material substantive terms had been negotiated 

and agreed to in principle.

III. Material Terms of the Settlement

The Class Action Settlement provides substantial benefits to the members of

the putative Settlement Class by accelerating a resolution of the Action and 

providing significant monetary compensation.

A. The Settlement Class definition.

The Settlement Class is defined to include

all Persons within the United States and its territories who after March

7, 1984 and before March 30, 2011 filed and served a lawsuit against

Engelhard/BASF seeking asbestos-related bodily injury compensation

or other relief arising from exposure to Emtal Talc products, and who

before March 30, 2011 either: (A) had voluntarily dismissed or

terminated the lawsuit as to Engelhard/BASF after the suit was filed,

including any voluntary dismissal or release of claims due to

settlement; or (B) had their lawsuit as to Engelhard/BASF

involuntarily dismissed.

15

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 24 of 98 PageID: 47385
16

For the purposes of this definition, the date on which a voluntary dismissal or 

termination occurred for purposes of determining class membership is deemed to 

be the earlier of either (i) the date on which the agreement or consent by the 

plaintiff or his/her counsel to dismiss or terminate the lawsuit occurred; or (ii) the 

date on which the dismissal or termination of the lawsuit was entered by or in the 

court in which it was pending. 

B. Benefits to the Settlement Class Members.

The Class Action Settlement, if approved by the Court, would establish a

non-reversionary Settlement Fund of $72,500,000 paid by BASF and Cahill. BASF 

and Cahill will also pay $3,500,000 for administrative expenses incurred in 

designing, establishing and carrying out the Plan of Notice and the Plan of 

Administration.

C. Class Counsel Fees and Litigation Cost Reimbursement.

In addition to paying the direct benefits to the Settlement Class Members

and administration costs, BASF and Cahill have relieved the proposed Settlement 

Class of any responsibility to pay Class Counsel’s fees by agreeing, subject to 

Court approval, to pay Class Counsel’s attorney’s fees up to $22,500,000 and 

reimbursement of costs up to $1,200,000, the application for which Defendants 

have agreed to not oppose. Class Counsel’s fee, if approved, is 22.5% of the total 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 25 of 98 PageID: 47386
17

amount paid by the Defendants to the Settlement Fund, Cost Fund and Class 

Counsel’s fee, all of which benefit the Class. 

D. Non-monetary benefits to the settlement Class.

The Settlement Agreement provides that, subject to any operative protective 

and/or sealing orders, non-privileged Emtal Talc litigation materials shall be made 

available to anyone requesting them at no expense to Defendants. Those materials 

include (a) the Williams Action’s pleadings; (b) the Williams Action’s nonprivileged depositions (including non-privileged exhibits); (c) non-privileged 

documents produced or subpoenaed during discovery in the Williams Action, and 

(d) copies of the public non-privileged depositions (including non-privileged 

exhibits) taken in the New Jersey Superior Court Sampson, Comandini, Fuschino, 

Paduano and Volk actions.3 This discovery represents the culmination of nine

years of hard-fought litigation and thus provides a significant, non-economic 

benefit to the Class.

3 Sampson v. 3M Co., No. MID-L-5384-11AS (N.J. Sup. Ct. Middlesex 

Cnty.); Comandini v. Asbestos Corp. Ltd., et al., No. MID-L-10899-07AS (N.J. 

Sup. Ct. Middlesex Cnty.); Fuschino v. Asbestos Corp. Ltd., et al., No. MID-L4398-07AS (N.J. Sup. Ct. Middlesex Cnty.); Paduano v. Ace Scientific Supply Co., 

et al., No. MID-L-2976-09AS (N.J. Sup. Ct. Middlesex Cnty.); Volk v. Asbestos 

Corp. Ltd., No. MID-L-10012-07AS (N.J. Sup. Ct. Middlesex Cnty.). 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 26 of 98 PageID: 47387
E. The Plan of Distribution.

The $72.5 million Settlement Fund being established under the proposed

Settlement will be distributed according to a Plan of Distribution (“Plan” or

“POD”) approved by the Court. The terms of the Settlement Agreement give Class

Counsel the sole responsibility and right for designing the Plan and obtaining court

approval. None of the Defendants accordingly have any responsibility for the

Plan’s distribution scheme, any claim adjudications required under the Plan to 

implement it, nor for any of the payments or amounts of payment from it.

Class Counsel with the assistance of consultants on asbestos claims facility

design and operations and lien administration have developed a proposed POD, 

which is annexed to this Motion for Preliminary Approval as Exhibit C. A copy of 

the Plan if preliminarily approved will be published on the Settlement’s Website as

part of the Notice. By way of overview, the proposed Plan calls for the 

establishment of a Settlement Fund claims facility, the filing of claims submissions 

by class members who want to receive compensation from the fund, compensation 

awarded according to three separate but complementary compensation programs 

(including one based on existence and severity of asbestos disease) and 

mechanisms for supporting and adjudication of claims. The claims facility’s

operations will be managed and conducted by a Settlement Trustee, an 

Administrator and a Lien Administrator, each of which are each required to at all

18

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 27 of 98 PageID: 47388
19

times administer the Plan and distribute the Settlement Fund according to its terms 

under the auspices of the Court.

In many respects the Plan is similar to a Section 524(g) Asbestos 

Bankruptcy Claims Resolution Trust facility, but due to the unique circumstances 

of this case is not by design and intent exactly the same in operation. Class 

counsel, together with their consulting experts, Verus LLC (asbestos claims 

facilities) believe the proposed Plan, its allocation scheme and its eligibility 

requirements fairly, appropriately and equitably distributes the Settlement Fund to 

eligible Settlement Class Members, taking into account the foreseeable difficulties 

that Settlement Class Members may encounter in locating and marshalling 

information and evidence to support a claim given the passage of time since the 

Underlying Suits were actively prosecuted. See Declarations of Daniel Myers and 

Mark Zabel annexed as Exhibits D and E.

1. Establishment of a settlement claims facility and appointment of a 

Settlement Trustee, Claims Administrator and Lien Administrator.

The Settlement Fund’s claims facility and allocation and distribution 

processes will be overseen and managed by a Settlement Trustee appointed by the 

Court as a Special Master under Fed. R. Civ. Pro. 53. The Settlement Trustee will 

be imbued with Special Master adjudicatory powers regarding the fund’s awards 

and payments as necessary to carry out the Plan. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 28 of 98 PageID: 47389
20

Class Counsel is nominating the Honorable Marina Corodemus, J.S.C 

(Retired) as the Settlement Trustee/Special Master position and a motion for her 

appointment is being made contemporaneously with this instant Motion for

Preliminary Approval. Class Counsel requests that the Court in its Preliminary 

Approval Order appoint Judge Corodemus to serve as Interim Settlement Trustee 

during the Settlement’s Interim Claims Period (i.e. – from the date of preliminary 

approval to the settlement’s Effective Date). As Interim Settlement Trustee, Judge 

Corodemus would be responsible for setting up and conducting the interim claim 

administration operations and performing the duties required to be performed 

under the Settlement Agreement and the Court’s Preliminary Approval Order 

during the time the Court is considering the pending request for final approval of 

the settlement.

Judge Corodemus’s qualifications for these positions are set forth in her 

Declaration in Support of Appointment as Settlement Trustee and Special Master 

which is annexed to Plaintiffs’ Motion for Preliminary Approval. Exhibit F. To 

briefly summarize, she is a former New Jersey Superior Court judge who presided 

over New Jersey’s Mass Tort Program for many years. Since leaving the bench,

Judge Corodemus has served in the capacity of special master or settlement trustee 

in a number of major mass tort claims resolution facilities. From that she has 

substantial experience and expertise in overseeing, and administering mass tort 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 29 of 98 PageID: 47390
21

settlements, including the adjudication of disputes involving claims. Currently she 

serves as one of the trustees of the G-I Holdings Inc. Asbestos Personal Injury 

Settlement Trust, a 524(g) settlement claims facility that serves as one of the 

models examined in designing the proposed Plan. 

The Settlement Trustee/Special Master will be assisted in executing the Plan 

of Distribution by a third-party claims administration company appointed by the 

Court (the “Administrator”). The Administrator under the Plan is authorized to 

receive, process and make provisional determinations of claims to the Fund (which 

are all subject to review, modification or approval by the Settlement Trustee), 

establish and maintain the Settlement Fund’s claims processes, books, records and 

internal controls, handle the Fund’s routine inquiries and communications, and 

make claim disbursements once claim distribution schedules are approved by the 

Court. The Claims Administrator will also serve as the Interim Administrator to 

perform certain administration operations and duties relating to the proposed 

settlement that are required to be performed under the parties’ Settlement 

Agreement and the Court’s Preliminary Approval Order. 

Class Counsel is requesting the Court appoint Verus LLC as the 

Administrator. Its qualifications for this appointment are set out in the Declaration 

of Daniel Myers. Verus, as mentioned above, served as a consultant to Class 

Counsel in the design of the Plan and is familiar with the plan’s intent and 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 30 of 98 PageID: 47391
22

requirements. Verus performed many of the requisite tasks needed to design the 

Plan, such as estimations of the class size and disease level distributions; 

developing class member mailing lists; deriving claim compensation ratios and 

advising Class Counsel on appropriate and feasible claims administration 

procedures. The annexed declarations of Daniel Myers and Mark Zabel (Exhibits 

D and E) explain Verus’ roles and work in developing the Plan and its 

qualifications to serve as the Settlement’s Administrator.

Under both the Plan and Settlement Agreement, the Settlement Trustee is 

authorized to retain, subject to Court approval, a lien resolution company (“Lien 

Administrator”). The Lien Administrator will, as a settlement benefit, assist each 

Claimant to determine the existence of Government Liens and the amounts needed 

to clear and resolve such liens. The terms of the Settlement Agreement require that 

a claimant to the Fund must clear these Government Liens. 

Class Counsel is requesting the Court appoint Edgar C. Gentle, III, Esq. and 

his law firm, Gentle, Turner, Sexton & Harbison, LLC, to collectively serve as 

Lien Administrator. The firm’s qualifications are set out in the declaration of Edgar 

C. Gentle. Exhibit G.

2. Proposed distribution of the Settlement Fund among Class Members.

The Plan establishes three compensation programs to which Settlement 

Class Members meeting defined eligibility criteria may apply for compensation 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 31 of 98 PageID: 47392
23

award payments (each program being referred to as a “Part”). The Settlement 

Fund’s Part A program provides Base Compensation Payments to Settlement Class 

Members who can establish that the Claimant or Claimant’s decedent during the 

Class Period filed an Underlying Lawsuit against Engelhard/BASF which credibly 

asserted in good faith an asbestos injury caused by alleged exposure to Emtal Talc 

(“Base Payments”). The Plan’s Part B program provides compensation payments 

to Settlement Class Members who satisfy Part A and also present sufficient 

evidence of an asbestos bodily injury sustained by them (or if applicable, their 

decedent). The Plan’s Part C program establishes an Extraordinary Injury Fund or 

“EIF” from which the Settlement Trustee may, in exceptional cases, make a 

discretionary supplemental compensation payment to mesothelioma injury 

claimants subject to eligibility guidelines and limitations as set forth in this Plan. 

a. Payments under the Plan’s Part A program.

The Plan’s Part A program provides Base Payments from a $6.25 million 

sub-fund allocation of the Settlement Fund amount to Settlement Class Members 

whose Underlying Lawsuits were dismissed and who are releasing all claims 

related to the Underlying Lawsuits, including the Williams Class Action Claims, 

against the Released Parties. Settlement Class Members who were Injured Persons 

(which includes the personal representatives of a deceased Injured Person) in the 

Underlying Lawsuits are referred to as “Primary Claimants”. Each Primary 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 32 of 98 PageID: 47393
24

Claimant who timely submits a claim for Part A compensation and establishes that 

his or her subject Underlying Lawsuit presented a good faith credible claim for 

injuries allegedly caused by exposure to Emtal Talc will receive a payment of up to 

$500 from the Part A sub-fund. Generally speaking, claims on behalf of a deceased 

Injured Person must be filed by the deceased person’s estate representative (who is 

considered to be a “Primary Claimant” under the Plan). However, where the only 

claim to the Settlement Fund being applied for with respect to a deceased Injured 

Person are Part A compensation shares and no claims are made for compensation 

under Parts B or C, the claim may be submitted by the Injured Person’s surviving 

spouse if any, or if none, by an Injured Person’s surviving child with the written 

consent of all other surviving children, if any.

Where there are one or more Settlement Class Members associated with a 

Primary Claimant as a Derivative Claimant, that is, the Settlement Class Member’s 

claim in the Underlying Lawsuit was based upon the Primary Claimant’s asbestos 

injury and not theirs, then the Primary Claimant (or in the limited circumstances 

where a Derivative Claimant is making only the Part A Claim) will also be eligible 

to receive one additional Part A payment of up to $500, for a total Part A award of 

up to $1,000. 

Part A base payments are subject to proration downward if more than 12,500 

Part A base payments are awarded, counting each Primary and Derivative 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 33 of 98 PageID: 47394
25

Claimant base payment award separately. Any funds in the Part A sub-fund 

remaining after payment of all eligible Part A share claims will be reallocated by 

the Settlement Trustee first to Part C to pay allowed EIF claims, if any, or 

otherwise to Part B or Part C in her discretion with the advice and consent of Class 

Counsel (such reallocation being referred to as a “spillover”). The Settlement 

Trustee has discretion to reallocate residual Part C (EIF) funds to Part A if there is 

a shortfall.

b. Payments under the Plan’s Part B program.

The Plan’s Part B program provides additional compensation to the Injured 

Persons in the Underlying Lawsuits (or their estates if deceased) out of an initial 

sub-fund allocation from the Settlement Fund of $59.75 million. The Part B subfund will be distributed in its entirety among the Part B Claimants adjudicated 

during the claims process to be eligible to share in Part B distributions. The amount 

of the Part B sub-fund may change during the course of the Settlement Fund’s 

administration based on the Settlement Trustee’s application of a spillover of 

unused allocations of the Part A or Part C programs’ sub-funds, accrued interest 

earned on the Settlement Fund’s assets, or the need to pay administration costs and 

expenses that cannot be paid or fully paid from the Settlement Cost Fund. The 

amount a Primary Claimant will receive depends upon the nature of the disease 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 34 of 98 PageID: 47395
26

allegedly sustained from exposure to Emtal Talc and the number of other persons 

who make Part B claims and the nature of their diseases. 

Part B compensation claims may be submitted only by Primary Claimants, 

including the Injured Person in the Underlying Lawsuit or by the Injured Person’s 

estate if such person is deceased. Class Members who apply and meet the 

eligibility requirements for a Plan B program award will receive a proportionate 

share of the Part B sub-fund based upon a system of points awarded for the 

asbestos disease the Injured Person sustained and was diagnosed. 

Eligibility for Part B compensation requires that a Primary Claimant 

establish (a) entitlement to Part A compensation; and (b) through credible, 

competent proof that the Injured Person sustained an asbestos-related injury falling 

into one of four defined categories of asbestos disease levels: (1) Non-malignant 

asbestos pulmonary disease (a “Part B Level 1 claim”); (2) Malignant Asbestos 

Disease Other Than Mesothelioma or Level 3 Claim Lung Cancer (a “Part B 

Level 2 claim”); (3) either: (i) Primary Lung Cancer with evidence of underlying 

Bilateral Asbestos-Related Nonmalignant Disease; or (ii) Severe Asbestosis (a 

“Part B Level 3 claim”); or (4) Mesothelioma (a “Part B Level 4 claim”). A Part 

B claim may be based on the highest degree of the Injured Person’s disease 

progression provable as of the time of the claim submission to the Plan. Claimants 

may establish proof of medical injury through a certification of a prior equivalent 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 35 of 98 PageID: 47396
27

asbestos disease level adjudication by one of several designated Qualified Asbestos 

Trusts or through individual adjudication of satisfactory medical evidence provided 

by the Claimant to the Administrator.

The Part B sub-fund will be allocated among and paid to those Part B 

Claimants adjudicated to be eligible according to the disease level sustained using 

an assigned number of “Qualifying Claim Points” based on whether they have a 

Part B Level 1, 2, 3 or 4 disease. Part B sub-fund compensation will be the 

claimant’s pro rata share of the Part B sub-fund calculated according to the 

formula X/Y x Z, where X represents the number of the individual eligible

Claimant’s adjudicated Qualifying Claim Points; Y represents the aggregate of all 

eligible Claimants' adjudicated Qualifying Claim Points, and Z represents the Part 

B sub-fund dollar amount (including any spillovers from Part A or Part C subfunds). The number of Qualifying Claim Points for each Part B claim level is set 

forth in the following Table 1. The number of Qualifying Claim Points assigned to 

each asbestos disease category in Table 1 is based upon a survey and analysis 

conducted by Verus LLC of compensation programs employed by eighteen 

relatively comparable bankruptcy asbestos trust claims facilities to allocate their 

asbestos claim trust funds among claimants suffering from different levels of 

asbestos disease. The declaration of Mark Zabel explains how Verus derived the 

values. Exhibit E. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 36 of 98 PageID: 47397
28

Precise amounts of compensation for each Claim Level cannot be stated 

presently because a number of key factors are not yet known, including the actual 

number and disease level distribution of Part B claims received, whether there will 

be spillover from Parts A and C, and other variables in the Plan of Distribution. 

Table 1 below, however, provides a range of hypothetical Part B gross payment 

estimates based on (a) receipt and approval by the Settlement Fund of 7,000, 8,000 

and 8,500 Part B claims; and (b) an asbestos disease distribution rate equal to the 

historical asbestos disease rates experienced by the Johns Manville Asbestos Trust 

(which rates are stated for each disease level in the table).4

[Balance of Page Intentionally Blank]

4 The actual payment received by a class member may be less due to charges by 

other attorneys and payment of any liens associated with award. Individual class 

member’s attorneys may charge fees or expenses for having represented him or her 

or their decedent in an Underlying Lawsuit or in their Settlement Fund claim 

submission at the Claimant’s request. Such fees will reduce the amount of money a 

class member will receive. For example, should an attorney charge a class member 

a 33.3% contingency fee, and the class member is eligible for a Part A payment of 

$500 and a Level 2 Part B Claim payment of $10,824 as provided in Table 1 above 

(this example assumes there are 8,000 approved claims) for a total amount of 

$11,324, the net recovery to the class member after payment of personal attorneys’ 

fees would be $7,550 ($11,324 – $3,774). In recent years, courts in class action 

cases have considered if and to what extent fees may be charged by non-Class 

Counsel. The Court in this case has jurisdiction to consider and will make a 

determination about the fees and the amounts which may be charged to Class 

Members by non-Class Counsel, individual counsel and former counsel. See, e.g., 

In re NFL Players’ Concussion Injury Litig., 2018 WL 1658808 (E.D. Pa. 2018).

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 37 of 98 PageID: 47398
29

Table 1

Hypothetical Part B Payment Share Estimates*

Part B Claim Levels

Qualifying Claim 

Points 

(Assumed disease rate 

%)

Estimated Payment

(Estimated number of claims)

7,500 

approved claimants

8,000 

approved claimants

8,500 

approved claimants

Level 1 Claim

Non-Malignant Asbestos disease other 

than Severe Asbestosis.

(Bilateral Asbestos-Related 

Nonmalignant Disease Injuries other than 

Severe Asbestosis)

1

(86.3 %)

$1,283

(6,473)

$1,203

(6,904)

$1,132

(7,336)

Level 2 Claim 

Malignant Asbestos Disease Other Than 

Mesothelioma or Level 3 Claim Lung 

Cancer. 

9

(2.1 %)

$11,546

(158)

$10,824

(168)

$10,188

(179)

Level 3 Claim

Either: (a) Primary lung cancer with 

evidence of underlying Bilateral 

Asbestos-Related Nonmalignant Disease; 

or (b) Severe Asbestosis.

20

(7.3 %)

$25,658

(548)

$24,054

(584)

$22,639

(621)

Level 4 Claim

Mesothelioma

86

(4.3 %)

$110,327

(323)

$103,432

(344)

$97,348

(366)

* Due to rounding, the numbers presented may not add up precisely to the totals indicated and payment estimates may not precisely reflect the 

absolute figures.

c. Payments under the Plan’s Part C discretionary EIF program.

The Plan’s Part C EIF program allocates $6.5 million of the Settlement Fund 

for an Extraordinary Injury Fund under which the Settlement Trustee has 

discretionary authority to award bounded additional supplemental compensation 

payments to a Primary Claimant with mesothelioma who establishes to the 

Settlement Trustee’s satisfaction that the Primary Claimant sustained an 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 38 of 98 PageID: 47399
30

extraordinary physical injury and/or economic loss allegedly as a result of 

exposure to Emtal Talc mined, milled, sold or distributed by Engelhard/BASF that 

is materially and substantially beyond that sustained by typical other Part B 

mesothelioma Primary Claimants. 

To qualify for an EIF award, a Primary Claimant, in addition to establishing 

Class membership under Part A and Part B, must satisfy specific eligibility 

requirements that: (1) the subject Injured Person developed mesothelioma; (2) the 

Primary Claimant has not received appropriate and sufficient compensation for the 

subject mesothelioma injury; (3) the subject mesothelioma injury and resulting 

losses were allegedly a result of frequent, regular and proximate exposure to Emtal 

Talc; and (4) the Underlying Lawsuit’s plaintiff lawyer or firm received direct 

representations from an Engelhard/BASF attorney regarding the absence of 

asbestos in Emtal Talc. No award made pursuant to the discretionary EIF program 

may exceed $175,000. The Part C EIF sub-fund may be increased by unallocated 

or unclaimed fund spillovers from the Part A. The Settlement Trustee is not 

required to make any EIF awards or to make awards sufficient to exhaust the EIF 

fund. The Settlement Trustee also has the discretion to re-allocate the unused 

portion of the Part C EIF sub-fund to the Part A or Part B funds in its discretion 

with the advice and consent of Class Counsel. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 39 of 98 PageID: 47400
31

d. Liens and personal attorney’s fees that could reduce individual 

claim awards

The Plan of Distribution includes provisions establishing a Lien Resolution 

program. Plaintiffs nominate Edgar C. Gentle III, Esquire to serve as the Lien 

Administrator who will be charged with establishing processes to identify 

healthcare-related liens and the means of resolving those liens all at no cost to 

Settlement Class Members.

Notice to the Class Members will advise them that there are no filing or 

other administrative fees that will reduce any award to which they are eligible from 

the Settlement Fund. 

Regarding attorneys and fees for which Class Members may be responsible 

to pay, the Notice will advise Class Members that Class Counsel represents all 

Class Members regarding the issues common to all Class Members. Class Counsel 

are Cohen Placitella & Roth, P.C. Class Counsel have represented the named 

Plaintiffs and the Class for over nine years and have undertaken significant efforts 

in this litigation, including motions practice and briefing, an appeal to the Third 

Circuit, multiple court appearances, depositions and written discovery, and 

settlement negotiations. Class Counsel is seeking $22.5 million for their work. 

Defendants have agreed not to oppose Class Counsel’s request which represents 

approximately 23% of the Settlement Fund, Cost Fund and Class Counsel fee the 

Defendants have agreed to pay to settle this case. Class Members will be told they 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 40 of 98 PageID: 47401
32

will not pay, nor have the Settlement Fund reduced by, fees paid to Class Counsel. 

The Class Notice also informs Class Members that Class Counsel are not 

responsible for and will not represent Class Members in the submission of claims 

to the Settlement Fund for monetary payments. 

Class Members will be advised in the Notice that they have the right to hire 

their own lawyer to represent them in the Class Action and/or to file their claim for 

payment from the Settlement Fund. The Notice makes clear that should a Class 

Member hire their own lawyer, they are responsible for paying that lawyer’s 

attorney’s fee which, in turn, will reduce the net compensation they receive from 

this Class Action. 

The Notice also alerts Class Members that some lawyers may assert an 

entitlement to a fee based upon agreements entered into with Class Members or 

their decedents to prosecute claims in the Underlying Lawsuits. 

Class Members are advised in the Notice that the fees charged by lawyers 

they hire, or claimed by those under fee agreements entered with Class Members 

or their decedents to prosecute the Underlying Lawsuits, may be a percentage of 

the amount of money awarded to the them, thereby reducing the amount of money 

the Class Member will receive as a result of this Class Action. The notice provides 

the following hypothetical for purposes of example only: 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 41 of 98 PageID: 47402
33

Should an attorney charge a class member a 33.3% contingency fee, and 

the class member is eligible for a Part A payment of $500 and a Level 2 

Part B Claim payment of $10,824 as provided in Table 1 above (this 

example assumes there are 8,000 approved claims) for a total amount of 

$11,324, the net recovery to the class member after payment of personal 

attorneys’ fees would be $7,550 ($11,324 – $3,774). 

Class members are advised in the Notice that the net recovery for the Class 

Member would vary depending on the fee percentage the attorney would charge. It 

is also made clear that this fee, which is their responsibility, is separate and apart 

from the fee that Class Counsel will be paid pursuant to approval of the Court.

Class Members are additionally informed in the Notice that courts in class 

action cases have considered if and to what extent fees may be charged by nonClass Counsel and that the Court in this case has retained jurisdiction to consider 

and will make a determination about the fees and the amounts which may be 

charged to Class Members by non-Class Counsel, individual counsel and former 

counsel. 

F. The Plan of Notice.

The Class will be given notice of the proposed Settlement together with an 

explanation of their rights as Class Members, in a clear, direct manner that fully 

satisfies the requirements of Rule 23, the standards set out in the Federal Judicial 

Center’s Judges’ Class Action Notice and Claims Process Checklist and Plain 

Language Guide (“FJC Checklist”), and due process. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 42 of 98 PageID: 47403
34

To accomplish this goal, the Williams Plaintiffs engaged Verus LLC, their 

nominee for Claims Administrator, and BrownGreer PLC, their nominee for 

Notice Agent. Verus developed a list of potential class members based on litigation 

claim data and documents produced through the Williams case discovery. 

BrownGreer fashioned a Notice Plan designed to reach and inform these Class 

Members (or their heirs where the Class Member is deceased) about the settlement 

and their rights thereunder. 

As described in the declarations of Mark Zabel, Verus’ Director of 

Analytics, and Orran Brown Sr., Chairman and a founding partner of BrownGreer, 

both companies went to great lengths to capture necessary information about the 

potential Class Members’ identities, next of kin when and where a potential Class 

Member was known to be deceased, current or last known locations of residence, 

and the identities and current addresses of their attorneys in the Underlying 

Lawsuits. With this information in hand, BrownGreer developed a Notice Plan 

described in the annexed Declaration of Orran L. Brown, Sr. in Support of Notice 

Plan. Exhibit M.

The key elements of BrownGreer’s Notice Plan are:

(a) Direct Notice. Copies of the proposed long-form Notice explaining 

the settlement, the class certification and the Class Members’ rights, substantially 

in the form of Exhibit K, will be mailed to all presumed living Class Members 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 43 of 98 PageID: 47404
35

identified through Verus and BrownGreer’s work. Where the potential Class

Member is known to be dead, a copy of the long-form Notice will be mailed to 

either (1) the deceased’s personal representative if that identity is known and an 

address is available; or (2) both the deceased’s last known address and to the 

Presumed Living Relatives of the deceased who may be or may know the deceased 

class member’s personal representatives.5

(b) Notice through mailings to the Class Members’ Attorneys and Law 

Firms in Underlying Lawsuits. The Notice Agent will mail a copy of the longform Notice to every attorney and law firm (including known successor law firms 

where the attorney has died or retired, or the law firm has dissolved or 

reconstituted) for which there is an address available. In addition, the Notice Agent 

will provide these lawyers with a list of potential Class Members who Verus’ 

research suggests were the lawyers who had represented potential Class Members 

in the Underlying Lawsuits and a letter substantially in the form of Exhibit 3 to the 

Brown Declaration. Verus’ experience as the administrator for several asbestos 

524(g) trusts shows that asbestos claimant law firms (or their firm’s successors), 

5 The rationale for mailing a copy to the deceased’s last known address is 

explained by BrownGreer as follows: “[w]hile notices mailed to these persons’ last 

known addresses, of course, will not reach the actual Class Members, they may, at 

minimal cost, reach family members or other persons who are or may know 

personal representatives of the Deceased.” Exhibit M, ¶ 17(3).

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 44 of 98 PageID: 47405
which had represented potential Class Members in the Underlying Lawsuits

continued over years to maintain contact with putative Class Members or their 

surviving families on legal matters, including continuing to handle their ongoing 

claims with asbestos company bankruptcy trusts. Thus, notice to these law firms

will likely increase the reach of direct notice to the Class because the Exhibit 3

letter asks that each lawyer do two things: (1) mail the Notice to his or her clients 

who were plaintiffs in the Underlying Lawsuits; and (2) provide the Notice Agent

with the names of those clients to whom notice was mailed. Plaintiffs’ Counsel has 

every confidence that these lawyers will fulfill these tasks.

(c) Publication Notice. A summary version of the Notice will be

published in three national print publications targeted to the Class Members’ 

demographic characteristics: AARP Bulletin, Conquer and Coping with Cancer.

The summary version will also be published in 41 regional newspapers located in 

Ohio, Mississippi, Georgia, and Alabama based upon BrownGreer’s analysis of 

pertinent addresses showing that nearly 82% of the Presumed Living Class 

Members and 72.5% of the Presumed Living Relatives reside in these four states.

The names of the publications along with their locations and circulation 

information are listed in the Brown Declaration (“Exhibit M”) at ¶ 20(1) (Table).

In addition to the print media publications, the Notice Plan will also employ

digital (internet) notice components. These include (1) “banner” advertisements

36

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 45 of 98 PageID: 47406
37

placed on the online version of People magazine; and (2) paid internet search terms

ads responding to targeted keywords on top Internet search engines, such as 

Google. The internet search terms aspect of the Notice Plan alone aims to achieve 

approximately 10,000 impressions and 300 click-throughs to the Settlement 

Website each month. According to BrownGreer, these digital components of the 

Notice Plan will be targeted to reach audiences that include the Class Members and 

their next of kin’s demographics, as well as to offer media encounters to audiences 

who are avoiding or are less exposed to print media due to the COVID-19 

Pandemic. Exhibit M, ¶ 20(2).

(d) A Press Release. The Notice Agent will issue a joint press release 

substantially in the form of Exhibit 4 to the Brown Declaration through Cision/PR 

Newswire, which is a leading provider of multimedia platforms and distribution. 

The press release is designed to explain the core aspects of the proposed settlement 

and provide the address for the Settlement Website, as well as a toll-free number. 

Plaintiffs respectfully submit the Notice Plan developed by BrownGreer 

fully meets Rule 23’s and the Federal Judicial Center’s requirements and satisfies 

due process. Mr. Brown states in his declaration, “With an estimated direct notice 

reach exceeding 77% of Presumed Living Class Members or their attorneys in 

the Underlying Lawsuits and at least one Relative of deceased Class Members, a 

regional public notice campaign that targets Presumed Living Class Members 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 46 of 98 PageID: 47407
38

and Presumed Living Relatives, national print publication ads that will expose 

Presumed Living Class Members and Relatives outside of the four primary 

states of residence to the notice, and a digital component targeting those Class 

Members and their residents who consume media electronically and actively 

search for information relevant to this matter, the Notice Plan is likely to 

provide the same or better reach than courts have approved in other similar class 

matters.” Exhibit M, ¶ 21. The record developed in this case demonstrates that 

the attorneys identified have been active with their clients and surviving family 

members in filing trust claims since the Underlying Lawsuits were dismissed. 

As such, the parties believe that BrownGreer’s estimates of the reach of this 

notice plan are conservative. 

 Based on Class Counsel’s long experience in handling asbestos claims and 

knowledge of the asbestos bar and nature of asbestos claimants, the 77% reach 

statistic is conservative; a point with which BrownGreer in its declaration concurs. 

Id. at ¶ 21. The Notice Plan accordingly should be approved and ordered executed 

and carried out by the Notice Agent.

IV. Argument

Federal Rule of Civil Procedure 23(e) requires judicial approval for the 

settlement of class actions. Fed. Civ. P. 23(e) (a class action “may be settled, 

voluntarily dismissed, or compromised only with the court’s approval”). “The 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 47 of 98 PageID: 47408
39

decision of whether to approve a proposed settlement of a class action is left to the 

sound discretion of the district court.” Krell v. Prudential Ins. Co. of Am., 148 F.3d 

283, 317 (3d Cir. 1998). But, as the Third Circuit has recognized, there is a “strong 

presumption” in favor of class action settlements, Ehrheart v. Verizon Wireless, 

609 F.3d 590, 594 (3d Cir. 2010), because of the “overriding public interest in 

settling class action litigation[.]” In re Warfarin Sodium Antitrust Litig., 391 F.3d 

516, 535 (3d Cir. 2004).

Settling a class action involves a two-step approval process under Rule 23. 

In the first stage, preliminary approval, the Court needs to make a threshold 

determination that the settlement could be finally approved after a future fairness 

hearing and, if so preliminarily found, ordering notice to the Class in accordance 

with an approved notice plan. Fed. R. Civ. P. 23(e)(1). In the second phase, final 

approval, the Court must hold a fairness hearing to determine whether to approve 

the settlement and order its implementation. Fed. R. Civ. P. 23(e)(2).

In considering whether to proceed forward with a settlement and authorize 

notice to the putative Class Members, Rule 23(e)(1), as amended, requires the 

Court to consider whether providing notice “is justified by the parties showing that 

the Court will likely be able to: (i) approve the proposal under Rule 23(e)(2); and 

(ii) certify the class for purposes of judgment on the proposal.” Fed. R. Civ. P. 

23(e)(1)(B). To ultimately approve the settlement, the Court must find that it is 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 48 of 98 PageID: 47409
40

“fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). This fairness inquiry 

requires the Court to consider whether: 

(A) the class representative and class counsel have adequately represented 

the class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking into account:

i. the costs, risks, and delay of trial and appeal;

ii. the effectiveness of any proposed method of distributing relief to 

the class, including the method of processing class-member claims;

iii. the terms of any proposed award of attorney’s fees, including 

timing of payment; and

iv. any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

For the reasons discussed below, this Court should approve the sending of 

notice to the Class because the settlement is “fair, reasonable, and adequate” and 

the certification of a settlement class is appropriate here.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 49 of 98 PageID: 47410
41

A. The Parties are entitled to a presumption that the settlement is fair.

The proposed settlement is entitled to a presumption of fairness because (1) 

the negotiations here occurred at arm’s length; (2) the parties engaged in extensive 

discovery; and (3) the proponents of the settlement are experienced in similar 

litigation.6 See In re NFL Players Concussion Injury Litig., 821 F.3d 410 (3d Cir. 

2016) (citing In re Cendant Corp. Litig., 264 F.3d 201, 231, 232 n.18 (3d Cir. 

2001)).

1. The proposed settlement is the product of good faith, extensive arm’s 

length negotiations.

“Whether a settlement arises from arm’s length negotiations is a key factor 

in deciding whether to grant preliminary approval.” Turner v. NFL (In re NFL 

Players’ Concussion Injury Litig.), 301 F.R.D. 191, 198 (E.D. Pa. 2014). Courts in 

the Third Circuit have found the presumption of fairness applicable when a 

mediator assists the parties, In re CIGNA Corp. Sec. Litig., No. 02-8088, 2007 U.S. 

Dist. LEXIS 51089, *12 (E.D. Pa. July 13, 2007), and the mediation occurred over 

6 In NFL, the Third Circuit cited an additional fourth requirement for 

triggering a presumption of fairness, i.e.- that “only a small fraction of the class 

objected.” Id. This requirement is not however part of the present preliminary 

evaluation analysis as notice to the Class has not yet been disseminated and no 

putative class members have had an opportunity to object or express an opinion to 

the Court. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 50 of 98 PageID: 47411
42

several days, Gates v. Rohm & Haas Co., 248 F.R.D. 434, 439, 444 (E.D. Pa. 

2008).

The parties to the proposed settlement participated in four, often contentious,

rounds of settlement discussions ultimately leading to the present proposed 

settlement. The first occurred in 2015 with a session before Judge Phillips. The 

second round, also before Judge Phillips, spanned the entire summer of 2016 

before an impasse over material terms ended the negotiations. The third occurred 

in 2018 before Judge Dickson following Chief Judge Linares’ Order staying this 

matter in June 2018. And the fourth and final one, again took place before Judge 

Phillips in late 2018 and early 2019. In between all the rounds of mediation, the 

parties engaged in extensive discovery and pressed their legal positions through 

hard fought motion practice before the SDM and appeals of SDM decisions before 

the District Court.

Based on his observations during the three rounds of mediation before him 

over three years, Judge Phillips found that “the parties vigorously asserted their 

respective positions on all material issues” and that these “discussions were often 

difficult, though both sides remained respectful and professional.” Exhibit B. Judge 

Phillips also explained that given his understanding of the proceedings before this 

Court, the Third Circuit and the Special Discovery Master, he is “satisfied that the 

positions of the parties were thoroughly advanced, explored, and defended 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 51 of 98 PageID: 47412
43

against.” Id. Judge Phillips further explained that “over the course of the three 

rounds of mediation, the proposed terms of the settlement changed substantially 

and were refined as the parties worked toward the common goal of achieving a 

fair, reasonable, and adequate settlement.” Id.

2. Extensive discovery and proceedings before the Third Circuit, 

District Court, and Special Discovery Master preceded the 

settlement.

This settlement was reached after the parties had engaged in lengthy and 

heated litigation, including Third Circuit review of the initial dismissal of the 

Action, from which each side (as well as the mediators) gained insight into and 

awareness of the others’ positions. 

In fact, the parties produced and reviewed hundreds of thousands of pages of 

documents and completed 28 depositions.7 Counsel are thus well aware of the 

7 With so much formal discovery, this Court should presume that the 

settlement is fair as the Third Circuit has found the presumption applicable in cases 

with far less discovery. For example, in NFL, objectors argued against applying the 

presumption of fairness because class counsel did not conduct formal discovery 

before reaching the settlement. NFL, 821 F.3d at 436. The district court rejected 

this argument, as did the Third Circuit. In explaining why, the Third Circuit 

recognized that class counsel had undertaken “significant informal discovery.” Id.

“As part of that, class counsel obtained a database of claims and symptoms by 

retired players, consulted medical experts, and understood the legal hurdles 

claimants would face on dispositive issues such as preemption.” Id. The Third 

Circuit thus observed that class counsel “were aware of the strengths and 

weaknesses of their case.” Id. (internal citations omitted).

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 52 of 98 PageID: 47413
44

strengths and weaknesses of their respective cases. And for that reason, too, this 

Court should presume the settlement fair.

3. The proponents of the settlement are experienced in similar 

litigation.

Plaintiffs’ Counsel not only have decades of experience in complex 

litigation representing catastrophically injured clients and the families of deceased 

victims, but also have served in leadership roles and prosecuted modern mass tort 

cases involving breast implants, Vioxx, diet drugs, toxic chemical releases, talc, 

and other product liability cases. Exhibit BB, Firm Resume. CPR’s lawyers have 

also in the past and continue to represent governmental entities in major complex 

litigation matters involving suppression and misrepresentation claims, such as New 

Jersey’s tobacco litigation and Pennsylvania’s current MTBE gasoline release 

litigation. CPR has extensive asbestos injury and complex litigation practices. 

Indeed, Plaintiffs’ Counsel in a New Jersey state court case first developed the 

evidence that led to the filing of this Action.

B. The complexity of these proceedings and advanced stage of litigation 

support approving the Settlement. 

Third Circuit jurisprudence requires that district courts consider two sets of 

factors in determining the fairness, adequacy, and reasonableness of a settlement: 

the Girsh nine-prong test and the Prudential considerations.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 53 of 98 PageID: 47414
45

In Girsh v. Jepson the Third Circuit outlined nine factors to be considered in 

determining the fairness of a proposed class settlement:

(1) the complexity, expense and likely duration of the litigation; (2) 

the reaction of the class to the settlement; (3) the stage of the 

proceedings and the amount of discovery completed; (4) the risks of 

establishing liability; (5) the risks of establishing damages; (6) the 

risks of maintaining the class action through the trial; (7) the ability of 

the defendants to withstand a greater judgment; (8) the range of 

reasonableness of the settlement fund in light of the best possible 

recovery; and (9) the range of reasonableness of the settlement fund to 

a possible recovery in light of all the attendant risks of litigation.

521 F.2d 153, 157 (3d Cir. 1975).

Following Girsh, the Third Circuit determined that a “sea-change [had 

occurred] in the nature of class actions,” and thought it useful to expand on Girsh

to include several permissive, non-exhaustive factors (the so called “prudential” 

factors or considerations):

(1) the maturity of the underlying substantive issues, as measured by 

experience in adjudicating individual actions, the development of 

scientific knowledge, the extent of discovery on the merits, and other 

factors that bear on the ability to assess the probable outcome of a trial 

on the merits of liability and individual damages; (2) the existence and 

probable outcome of claims by other classes and subclasses; (3) the 

comparison between the results achieved by the settlement for 

individual class or subclass members and the results achieved—or 

likely to be achieved—for other claimants; (4) whether class or 

subclass members are accorded the right to opt-out of the settlement; 

(5) whether any provisions for attorneys’ fees are reasonable; and (6) 

whether the procedure for processing individual claims under the 

settlement is fair and reasonable.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 54 of 98 PageID: 47415
46

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 

311, 323 (3d Cir. 1998). Unlike the Girsh factors, “the Prudential considerations 

are just that, prudential.” In re Baby Prods. Antitrust Litig., 708 F.3d 163, 174 (3d 

Cir. 2013).

These factors support approving a settlement here, especially in light of the 

complexity of this case, its advanced discovery, the significant challenges inherent 

in further litigation, and the size of the Settlement Fund.

1. Complexity, Expense, and Likely Duration of the Litigation.

“The first [Girsh] factor captures the probable costs, in both time and 

money, of continued litigation.’” Warfarin, 391 F.3d 535-36 (quoting In re 

Cendant Corp. Litig., 264 F.3d 201, 233 (3d Cir. 2001)). 

In NFL, the Third Circuit recognized that the probable costs of litigation 

were significant and supported approving the settlement because with “[o]ver 

5,000 retired NFL players in the MDL alleg[ing] a multi-decade fraud by the 

NFL,” litigating the claims “would have been an enormous undertaking.” NFL, 

821 F.3d at 438. In that regard, the Third Circuit noted that the discovery needed to 

prove the “fraudulent concealment of risks of concussions was extensive” and that 

the District Court would need to resolve “many issues of causation and medical 

science.” Id.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 55 of 98 PageID: 47416
47

As in NFL, this matter involves thousands of putative Class Members and 

allegations that stretch back many years. To date, the prosecution of this matter has 

involved an enormous undertaking with the filing of three complaints, several 

motions to dismiss, an appeal to the Third Circuit, the appointment of a SDM to 

oversee discovery, nearly 50 discovery motions, seven days of oral argument 

before the SDM, the exchange of over 300 pieces of meet-and-confer 

correspondence, the review and production of hundreds of thousands of pages of 

documents, and 28 fact depositions. And absent the proposed settlement, 

significantly more expert and fact discovery would remain before the Court could 

reach any decision on Plaintiffs’ motion for class certification and Defendants’ 

motions for summary judgment. In view of this history, further litigation will be 

very costly and only increase the risks to all the parties. 

Moreover, if the Court denies this Motion for Preliminary Approval, 

Plaintiffs expect that the Court would need to resolve the appeal of the SDM’s 

decision on Science Day, Plaintiffs’ crime-fraud motion, Plaintiffs’ and 

Defendants’ appeals of the SDM’s other discovery and attorney-client privilege 

rulings as well as other complex issues. In addition, given the prior course of the 

litigation, it is reasonable to anticipate appeals by the losing party to the Third 

Circuit regarding many or all those decisions. Expert discovery would also need to 

proceed. And there would eventually be dispositive motion practice and, 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 56 of 98 PageID: 47417
48

potentially, trial. See, e.g., Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1322 

(S.D. Fla. 2005) (the potential that appellate proceedings could delay class 

recovery “strongly favor[s]” approval of the settlement). All in all, guided by the 

lengthy and intense history of this litigation to date, the complexity, expense, and 

likely duration of this litigation amply supports approval.

2. Reaction of the Class to the Settlement.

The second Girsh factor requires that the Court “‘gauge whether members of 

the class support the settlement.’” Warfarin, 391 F.3d at 536 (quoting Prudential, 

148 F.3d at 318). At this stage of the proceedings—i.e., preliminary approval—

formal notice of the settlement has not yet been disseminated, and this factor 

therefore cannot be assessed. 

However, Plaintiffs expect a positive reaction to this proposed Settlement. 

The proposed Settlement Agreement would fairly and adequately compensate these 

putative Settlement Class Members, with virtually all putative Settlement Class 

Members receiving multiples of the compensation they had received from other 

talc defendants. The proposed Plan of Distribution allocates compensation based 

on the severity of the claimants’ injuries, along with providing an extraordinary 

injury fund for mesothelioma cases that warrant, in the Settlement Trustee’s 

discretion, an additional compensation award where specified criteria are met.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 57 of 98 PageID: 47418
49

3. Stage of the Proceedings and Amount of Discovery Completed.

“The third Girsh factor ‘captures the degree of case development that class 

counsel [had] accomplished prior to settlement.” Warfarin, 391 F.3d at 537 

(quoting Cendant, 264 F.3d at 235). As the Third Circuit has explained, “[t]hrough 

this lens, courts can determine whether counsel had an adequate appreciation of the 

merits of the case before negotiating.” Id.

In Warfarin, the Third Circuit found that class counsel adequately 

appreciated the merits of the case before negotiating the settlement when there had 

been three years of litigation, discovery of hundreds of thousands of pages of 

documents, many depositions, and consultations with experts. Id. The same 

appreciation can and should be found here. 

As in Warfarin, Plaintiffs’ Counsel have completed a substantial amount of 

discovery and consulted with experts. They have reviewed hundreds of thousands 

of pages of documents and taken and defended numerous depositions of party and 

third-party witnesses. Among other things, this discovery included the review of 

Representative Plaintiffs’ files and a sampling of putative class members’ file 

materials, testing data and documents from the Westfall litigation,8 BASF’s 

8 The first case against Engelhard alleging asbestos-related injury from exposure to 

Emtal Talc was filed in 1979 by the Estate of Thomas Westfall. In that 

mesothelioma case, several Engelhard scientists testified about test results that 

Plaintiffs allege suggested that Emtal Talc contained asbestos.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 58 of 98 PageID: 47419
50

extensive document production, litigation files and other documents produced by 

Cahill, documents produced by Engelhard’s insurers, and the files of several law 

firms that represented plaintiffs in the Underlying Lawsuits, including Bevan & 

Associates, LPA (“Bevan Law Firm”), Early, Lucarelli, Sweeney & Meisenkothen 

LLC (“Early Law Firm”) and The Law Firm of Allen L. Rothenberg. Discovery 

also included depositions of the individually named Plaintiffs, counsel for various 

plaintiffs in the Underlying Lawsuits, BASF’s local counsel in the Underlying 

Lawsuits, current and former employees of BASF and Cahill, and designated 

representatives of BASF and Cahill. Plaintiffs moreover have filed appeals with 

both this Court and the Third Circuit, briefed issues on class certification and 

crime-fraud, and produced expert reports. So, just as the Third Circuit found in 

Warfarin, this Court should find that Plaintiffs’ Counsel adequately appreciated the 

merits of this case before negotiating the proposed Settlement Agreement. 

C. Risks to continued litigation also support approving the Settlement.

“The fourth and fifth Girsh factors survey the possible risks of litigation in 

order to balance the likelihood of success and the potential damage award if the 

case were taken to trial against the benefits of an immediate settlement.” 

Prudential, 148 F.3d at 319. While Plaintiffs are confident in the strength of their 

case, they are also pragmatic, especially considering the zealous defense which 

Defendants have mounted since day one of this Action. As such, Plaintiffs are 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 59 of 98 PageID: 47420
51

sensitive to the risks inherent in this complex litigation. Some of these risks are 

discussed below. 

1. The availability of witnesses at trial. 

Plaintiffs’ claims face significant risk because the named Plaintiffs 

themselves lack personal knowledge to support certain necessary elements of their 

claims. Plaintiffs’ allegations turn on the positions taken in Underlying Lawsuits 

that were concluded decades ago. The named Plaintiffs, all of whom are nonlawyers and some of whom are only heirs to the plaintiffs in the Underlying 

Lawsuits, thus have little personal knowledge of their decedents’ communications 

with their lawyers and defenses raised by Engelhard. See, e.g., Exhibit W (4/5/17 

Holley Dep. Tr.) at 14:24–15:1 (“[D]o you have any personal knowledge of 

representations made to your mother about talc? A. I have no personal knowledge 

of that.”); Exhibit Y (4/5/18 Williams Dep. Tr.) at 28:16-23 (explaining that her 

understanding of the underlying suit comes from her deceased husband’s lawyer); 

see also id. at 30:21-24 (“It’s been so long ago, originally, you know, many, many 

years ago when this whole thing started. I don’t recall a lot.”). 

Plaintiffs have accordingly relied on lawyers, including Thomas Bevan, an 

Ohio attorney, who brought a substantial number of the Underlying Lawsuits, 

including those on behalf of several named Plaintiffs, and Mark Bibro, a New York 

attorney who represents another named Plaintiff to substantiate their allegations. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 60 of 98 PageID: 47421
52

See Exhibit H, 1/15/18 Hr’g Tr. at 132:21–133:3 (“SPECIAL MASTER: What are 

you going to do at trial, produce a plaintiff that says I don’t know? MR. ROTH: 

Yes, your Honor. . . and we’re going to have their family’s lawyer testify and 

describe what happened.”); Exhibit I, 10/23/15 Pls.’ Initial Disclosures (“[Mr. 

Bevan] has knowledge of the involuntary dismissal of his clients’ claims due to 

defendants’ . . . material omissions concerning Emtal talc.”); Exhibit J, 1/29/18 M. 

Holley Supplemental Resp. to BASF Interrog. No. 12, Set 1 (“The Bevan Law 

Firm would likely know more about this evidence.”). 

However, Defendants raise many challenges to the lawyers’ testimony. For 

example, Mr. Bevan testified at deposition that he had little personal knowledge of 

the class-wide spoliation allegations apart from what he read in the Williams

complaint, see Exhibit V, (5/15/18 Bevan Dep. Tr.) at 193:21–194:5. Although Mr. 

Bevan has portions of old files relating to these claims, his ability to verify that he 

had complete files about the Underlying Lawsuits was limited. Discovery from 

other lawyers representing plaintiffs in Underlying Lawsuits confirmed, given the 

age of the cases, that they too cannot produce complete files of their cases. 

Defendants have also challenged Plaintiffs’ ability to prove their decisions were 

the result of fraud. Mr. Bevan acknowledged at deposition that he continued to file 

asbestos injury claims against Engelhard even after having concluded, based upon 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 61 of 98 PageID: 47422
53

evidence provided by the Defendants, that there was no asbestos in Emtal talc. 

5/15/18 Bevan Dep. Tr. 139:13–141:25. 

2. Defenses relating to Underlying Lawsuits.

Plaintiffs’ “potential damage award if the case were taken to trial,”

Prudential, 148 F.3d at 319, may also face risk on account of the strength of 

Engelhard’s defenses in the Underlying Lawsuits. Although the parties disagree as

to the relevance of these defenses in a fraud/fraud concealment action, prior 

opinions in this case have recognized that, in order to prove their fraudulent

concealment claims, “Plaintiffs must prove that decisions were made in the

underlying case that would have been different if they had known evidence had

been destroyed[.]” See Williams, 2017 U.S. Dist. LEXIS 122053, *28. 

While Plaintiffs believe that they do not have to prove in a fraudulent

concealment case that they would have won their Underlying Lawsuits, Defendants 

pointed to potential weaknesses in the Underlying Lawsuits9

as a way of

attempting to show that the plaintiffs’ decisions in those cases would have been the

same no matter what. For example, Defendants have pointed out that many 

underlying litigants, despite filing lawsuits against Engelhard, lacked evidence of 

exposure to Emtal Talc. Named Plaintiff Holley’s decedent, for example, did not

9 See, e.g., Williams, 765 F.3d at 321; Tartaglia v. UBS PaineWebber, Inc., 

961 A.2d 1167, 1190 (N.J. 2008). 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 62 of 98 PageID: 47423
54

“know the brand name, manufacturer, distributor or supplier” of any talc products 

she was allegedly exposed to. Exhibit W (4/5/17 Holley Dep. Tr.) at 121:11-15. 

Other Named Plaintiffs’ cases had similar exposure issues. See Exhibit X, (3/12/18 

Wengerd Dep. Tr.) at 287:13-22 (“Q. So in your mother’s original case, she 

identified Vanderbilt as the company whose talc she was exposed to, correct? 

[Objection] A. Yes. Q. No mention of EMTAL talc there? [Objection] A. 

Correct.”); Exhibit Y, (4/5/18 G. Williams Dep.) at 41:7-11 (acknowledging that 

she had “no understanding of whether [her] father was exposed to talc from 

Southern Talc or Georgia Talc or Vanderbilt talc or EMTAL talc.”); Exhibit Z, 

(4/17/18 Ware Dep. Tr. 48:2-17) (acknowledging that based on sales records, her 

decedent’s employer had purchased only three bags of talc over a 30-year period). 

Other litigation defenses, including class members’ lack of proof of asbestosrelated disease, alternative causes of the disease (history of exposure to raw 

asbestos, not just talc, for example), and jurisdictional, statute of limitations, or 

other various arguments, could also have been—and were—raised by Defendants. 

The potential weaknesses in the Underlying Lawsuits also extend to how 

those matters were settled. In particular, many class members’ suits were dismissed 

after mass group settlements that did not distinguish between defendants having 

asbestos in their talc and defendants not having asbestos in their talc. See, e.g., 

Exhibit V, T90:21–91:1, 103:21–104:3, 303:6-22 (discussing group settlements); 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 63 of 98 PageID: 47424
55

Exhibit W, T113:25–114:3 (“Q. But you know now that Southern Talc Company 

was one of the seven defendants that settled with your mother’s estate for $2,000, 

correct? A. Yes. Q. Even though Southern Talc was known by Mr. Bevan to have 

asbestos in its talc, correct? A. Yes.”). This practice—treating talc manufacturers 

alike, regardless of whether their products were known to contain asbestos—could 

undermine Plaintiffs’ ability to show that but for the alleged conduct, class 

members’ decisions would actually “have been different”—as the Court had 

indicated would be necessary in order to hold Defendants liable on Plaintiffs’ 

fraudulent concealment claims. 

3. Establishing Damages.

Defendants also challenged the legal basis for recovering damages on a class 

wide basis. The SAC proposed to recover class wide damages on a theory of 

disgorgement, including disgorgement of “(a) the fees that Engelhard/BASF paid 

to Cahill,” and “(b) savings in liability and settlement payments, attorneys’ fees, 

other defense costs and expenses Engelhard/BASF realized” as a result of alleged 

wrongdoing in those litigations. See Exhibit J (1/29/18 Pls.’ Interrogatory 

Answers), at 11. 

Establishing these damages, however, would have required overcoming 

legal challenges and factual obstacles. First, while Plaintiffs continue to believe 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 64 of 98 PageID: 47425
56

that disgorgement damages would be available against all Defendants,10 the 

Defendants have argued that disgorgement is “a form of [r]estitution measured by 

the defendant’s wrongful gain.” Kokesh v. S.E.C., 137 S. Ct. 1635, 1640 (2017). In 

Defendants’ view, Engelhard experienced no “gain” here, where it only paid 

money to someone else (Cahill) during these lawsuits. On the other hand, Plaintiffs 

believe that Engelhard saved the cost of defense and liabilities it would have had to 

pay in the Underlying Lawsuits if the allegedly hidden evidence about Engelhard 

had been known. Cahill also argued that it did not gain anything from its alleged 

wrongdoing and could not be held responsible for disgorgement damages. 

Plaintiffs, however, believe at a bare minimum that Cahill could be held liable to 

the extent of its received legal fees and other damages based on the Defendants’ 

joint activities. Resolution of these complex and novel legal issues would have 

demanded extensive effort and time, and there is no assurance that Plaintiffs’ legal 

theories would have been upheld. 

10 See, e.g., Zippertubing Co. v. Teleflex Inc., 757 F.2d 1401, 1411–12 (3d Cir. 

1985) (“when one has unlawfully deprived another of a contract or a business 

opportunity and has made the opportunity his own, he is not to be permitted to 

retain any of the profits, any of the benefits of his unlawful conduct.”); County of 

Essex v. First Union Nat’l Bank, 89 A.2d 600, 607 (N.J. 2006); Platinum Mgmt., 

Inc. v. Dahms, 666 A.2d 1028 (N.J. Law Div. 1995); Restatement (Third) 

Restitution and Unjust Enrichment § 51 (2011). 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 65 of 98 PageID: 47426
57

Second, even if Plaintiffs were to prevail and establish that disgorgement is 

available here as a matter of law, the parties remained engaged in difficult debate 

over how much money Engelhard actually saved in the Underlying Lawsuits, or 

whether that number would even be ascertainable. As noted above, many cases 

against Engelhard ended in mass settlements with multiple talc manufacturers, with 

payments from those manufacturers being the same whether their products were 

known to contain asbestos or not. Defendants argue that fact suggests that 

Engelhard’s alleged denial of evidence of asbestos might not have actually saved it 

much money in legal fees or otherwise and that disgorgement damages could thus 

be hard to prove at trial. 

Plaintiffs sought discovery about Engelhard’s highest, lowest, and average 

Emtal talc expenditures and defense costs for each year of underlying talc 

litigation, see Exhibit J (Pls.’ Interrogatories Numbers 9, 10, 11), but the SDM 

agreed with BASF that the extraordinary difficulty of calculating these long-ago 

figures would be “unduly burdensome.” See Dkt. No. 534 (5/25/18 Order) at 3. He 

ordered Plaintiffs to share the costs of developing this information. Id. at 3-4, 

Plaintiffs objected to the cost sharing and the SDM denied their motion to compel, 

see CM/ECF # 565 (6/12/18 Order) at 6-7. Plaintiffs filed an appeal before that 

second order was issued, see CM/ECF # 562, and have contended that the first 

cost-sharing order was wrongly decided and that the second denial order should be 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 66 of 98 PageID: 47427
58

considered moot on account of the appeal, which remains pending. But in any 

event, these issues—no matter how they were to ultimately be decided—illustrate 

the continuing burden and risks Plaintiffs could endure in developing their damage 

arguments and marshalling the facts necessary to support them at trial. 

4. Ascertaining the Proposed Class.

Defendants also challenged the ability of Plaintiffs to ascertain and identify 

members of the proposed class, a prerequisite to class certification over 

Defendants’ objections. Many of the original complaints in the Underlying 

Lawsuits had very terse allegations against Engelhard that lacked reference to 

Emtal Talc and instead contained boilerplate recitations of non-specific personal 

injury claims against dozens of defendants. Defendants point to discovery in this 

case that in their view shows that documentation supporting the Class Members’ 

underlying claims against Engelhard at the time they were dismissed was thin or 

non-existent. Moreover, it is unclear how such proofs would be reconstructed 

today, if they existed in the first place. Consequently, Plaintiffs faced significant 

risks to a contested class certification from this lack of verifiable evidence.

By agreeing to the settlement, however, Plaintiffs no longer face these risks, 

because Plaintiffs and Defendants have agreed to establish eligibility standards that 

will allow the Settlement Administrator to determine class membership using 

readily available, objective criteria. These eligibility standards ensure that the 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 67 of 98 PageID: 47428
59

Settlement Class is ascertainable while providing significant safeguards against 

fraudulent and erroneous claims.

5. “Science Day” And The Emtal Talc Testing Record.

Defendants argue that Plaintiffs’ allegations turn in part on alleged 

concealment of test results that Plaintiffs believe show Emtal Talc contained 

asbestos and that a Science Day is needed to assess the validity of these test results. 

The Court denied their first request for a Science Day. CM/ECF # 261. Defendants 

continued to challenge Plaintiffs’ view of what the underlying testing revealed 

arguing that a Science Day could be relevant to showing the absence of fraudulent 

intent. Defendants therefore asked the SDM to hold a “Science Day” and hear 

expert testimony on the matter. Defendants’ request was a subject of considerable 

disagreement between the parties—Plaintiffs argued before the SDM that expert 

testimony on the testing record is not relevant to the merits of a fraud and 

fraudulent concealment case, the issue being whether evidence was concealed, not 

the weight of that evidence. The SDM, however, eventually came to believe that 

scientific testimony would be relevant to the case and to his decision on Plaintiffs’ 

pending motion to invoke the crime-fraud exception to BASF’s attorney-client 

privilege. See Exhibit AA (2/23/18 Hr’g Tr.) at 121:12-13 (“SPECIAL MASTER: 

... I don’t know, nor have I been given the type of expert information I would need 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 68 of 98 PageID: 47429
60

in order to judge whether X number of fibers per million is a good thing or a bad 

thing.”). 

Over Plaintiffs’ objections, the SDM scheduled a Science Day hearing, 

calling for expert testimony on topics including “the overall testing record 

concerning Emtal talc to determine whether and to what extent it contained 

asbestos,” and “the relevant capabilities and limitations of the testing methods then 

used by BASF (and its predecessors),” among others. See CM/ECF # 485 (4/23/18 

Order) at 3. Plaintiffs filed an appeal of this order, see CM/ECF # 506, and the 

parties continue to disagree over whether the requested testimony would be 

relevant, with Plaintiffs believing that it would be immaterial. The Science Day 

order, however, again illustrates the risks and costs Plaintiffs could face in further 

litigating these complex proceedings, which Defendants believe could turn in part 

on complicated issues of state of mind, as informed by scientific understanding and 

capabilities from a different time. 

* * *

In sum, although Plaintiffs are confident in the strength of their case, they 

are aware that protracted litigation carries inherent risks that would delay and 

potentially endanger the monetary recovery of the putative Class Members. At the 

same time, if the Court approves the proposed Settlement Agreement, Plaintiffs 

and the putative Class Members would receive immediate and substantial relief. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 69 of 98 PageID: 47430
61

Similarly, although litigation classes can sometimes be decertified when they prove 

unmanageable, see Krell, 148 F.3d at 321, manageability risks are greatly reduced 

in the settlement context, where “a district court need not inquire whether the case 

if tried, would present intractable management problems[,] . . . for the proposal is 

that there be no trial.” NFL, 821 F.3d at 440 (quoting Prudential, 148 F.3d at 321). 

Consequently, considering this Settlement’s great and immediate value against the 

uncertain litigation road ahead thus weighs strongly in favor of approving the Class 

Action Settlement proposed here under the fourth and fifth Girsh factors.

D. Other factors also support approving the Settlement.

1. Ability of Defendants to Withstand a Greater Judgment.

“The seventh Girsh factor is most relevant when the defendant’s professed 

inability to pay is used to justify the amount of the settlement.” NFL, 821 F.3d at 

440. 

With respect to Cahill, its and its named members’ ability to withstand a 

class action judgment involving thousands of claims is significantly tied to its 

insurance coverage. Under the circumstances of this case, there are coverage issues 

and limits associated with Cahill’s insurance. Cahill has however represented to 

Plaintiffs that its insurance carriers support the settlement, and that there is no issue 

about Cahill’s ability to fund its share of the Settlement. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 70 of 98 PageID: 47431
62

With respect to BASF, as the Third Circuit has recognized, “in any class 

action against a large corporation, the defendant entity is likely to be able to 

withstand a more substantial judgment, and, against the weight of the remaining 

factors, this fact alone does not undermine the reasonableness of the settlement.” 

Id. (quoting Sullivan v. DB Invs., Inc., 667 F.3d 273, 323 (3d Cir. 2011)). Indeed, 

as this Court has recognized, even if a company “could afford a greater amount 

than the settlement would require, that doesn’t support ‘rejecting an otherwise 

reasonable settlement.’” Halley v. Honeywell Int’l, No. 10-3345, 2016 U.S. Dist. 

LEXIS 55765, *40 (D.N.J. April 26, 2016) (Salas, J.) (quoting Saini v. BMW of N. 

Am., LLC, No. 12-6105, 2015 U.S. Dist. LEXIS 66242, *26 (D.N.J. May 21, 

2015)). 

The seventh Girsh factor is thus of no moment here.

2. Range of Reasonableness of the Settlement in Light of the Best 

Possible Recovery and All Attendant Risks of Litigation.

As to the eighth and ninth Girsh factors, courts ask “whether the settlement 

represents a good value for a weak case or a poor value for a strong case.” 

Warfarin, 391 F.3d at 538. “The factors test two sides of the same coin: 

reasonableness in light of the best possible recovery and reasonableness in light of 

the risks the parties would face if the case went to trial.” Id. “[T]he present value of 

the damages plaintiffs would likely recover if successful, appropriately discounted 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 71 of 98 PageID: 47432
63

for the risk of not prevailing, should be compared with the amount of the proposed 

settlement.” Prudential, 148 F.3d at 322. The settlement moreover must be judged 

“against the realistic, rather than theoretical potential for recovery after trial.” 

Sullivan, 667 F.3d at 323. And in conducting the analysis, the court must “guard 

against demanding too large a settlement based on its view of the merits of the 

litigation; after all, settlement is a compromise, a yielding of the highest hopes in 

exchange for certainty and resolution.” In re GMC Truck Fuel Tank Prods. Litig., 

55 F.3d 768, 806 (3d Cir. 1995).

The proposed settlement here is certainly “reasonable ... in light of the best 

possible recovery and ... in light of the risks the parties would face if the case went 

to trial,” Warfarin, 391 F.3d at 538, particularly given that discovery revealed 

many Settlement Class Members settled with other talc defendants (including those 

whose products were known to contain asbestos) for as little as $3,000 for a 

mesothelioma claim, $2,000 for a lung cancer claim, and $1,000 for an asbestosis 

claim. In ascertaining the reasonableness of the settlement amount in this matter, 

the Parties considered claims data from asbestos settlement trusts to determine 

credible estimates of the incidence rates of various asbestos diseases and 

compensation paid by disease level. Based on this review, the Parties were aware 

of the potential range of claim values in the Underlying Lawsuits and the losses 

allegedly sustained by the members of the putative Settlement Class as a result of 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 72 of 98 PageID: 47433
64

the dismissal of their cases. This analysis, in conjunction with the Parties’ 

consideration of the litigation risks identified above, provided a framework for 

settlement discussions. With the guidance of Judge Dickson and Judge Phillips, the 

Parties, as part of the proposed Settlement Agreement, mutually agreed to the 

creation of a non-reversionary $72.5 million Settlement Fund. 

Plaintiffs also turned to Verus, the leading Section 524(g) asbestos trust 

claims administrator in the asbestos bankruptcy field, to assist Plaintiffs in 

developing the Plan of Distribution, which compensates Settlement Class Members 

based on four different asbestos disease levels. The monetary awards to the 

putative Settlement Class Members, as a result, take into account and reflect the 

values of the alleged injuries that had been at issue in the Underlying Lawsuits, 

which Plaintiffs allege were fatally compromised as a result of the alleged 

fraudulent concealment of the facts regarding Emtal Talc. 

The Class Action Settlement accordingly affords members of the putative 

Settlement Class with immediate compensation that provides them with a fair 

value for their claims considering the significant risks Class Members may have in 

establishing all the elements of fraud and fraudulent concealment. 

3. Prudential Factors.

Third Circuit jurisprudence also requires that district courts consider the 

Prudential factors in assessing the reasonableness of class settlement. These are (1) 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 73 of 98 PageID: 47434
65

the maturity of the underlying substantive issues in the case and other factors that 

“bear on the ability to assess the probable outcome of a trial on the merits,” (2) the 

“existence and probable outcome of claims by other classes and subclasses,” (3) 

the comparison between the results achieved by settlement and the results likely to 

be achieved for other claimants, (4) whether class members have the right to optout of the settlement, (5) whether any provisions for attorneys’ fees are reasonable, 

and (6) whether the procedure for processing individual claims under the 

settlement is fair and reasonable. In re Prudential Ins. Co. Am. Sales Practice 

Litig. Agent Actions, 148 F.3d 283, 311, 323 (3d Cir. 1998). The relevant 

Prudential factors weigh in favor of approving the Settlement in this case.

First, given the maturity of the underlying substantive issues and discovery 

in this case, the Parties possess adequate information concerning the strengths and 

weaknesses of Plaintiffs’ claims, and thus the probable outcome of a trial on the 

merits. Counsel here thoroughly investigated the claims raised in the Complaints, 

conducted extensive document discovery, took 28 depositions, and exchanged 

information during negotiation and mediation sessions. Notably, the parties only 

reached settlement terms following the close of fact discovery. Moreover, 

Plaintiffs’ counsel not only retained various experts and other professionals to 

serve as experts in this matter, but also served expert reports on the subjects of 

causation and damages. The case proceeded against the backdrop of decades of 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 74 of 98 PageID: 47435
66

asbestos litigation. Given the advanced stage of discovery in this case, the first 

Prudential factor is thus more than satisfied. See, e.g., In re Cendant Corp. Litig., 

264 F.3d 201, 235-36 (3d Cir. 2001) (affirming approval of settlement even though 

litigation was “settled at an early stage” after only “informal” discovery).

Second, there are no other classes or subclasses and as such, this factor is not 

relevant to these proceedings.

Third, with respect to the results achieved by the settlement for individual 

class or subclass members and the results achieved for other claimants, Plaintiffs 

submit that this factor favors approval of the Settlement as well given that 

Settlement Class Members stand to receive substantial compensation that is, in 

some cases, orders of magnitude higher than what similarly situated plaintiffs 

recovered in their Underlying Lawsuits against other talc defendants.

Fourth, the proposed Settlement Agreement accords members the right to 

opt out of the settlement. NFL, 821 F.3d at 441.

Fifth, “[w]hether any provisions for attorney’s fees are reasonable is a 

neutral factor because Class Counsel have not yet moved for a fee award.” Turner, 

307 F.R.D. at 396. Under the Settlement Agreement, the Defendants have agreed 

not to oppose Class Counsel’s Fee and Costs Petition not to exceed $22.5 million 

and $1.5 million respectively, which will be filed for the Court’s consideration 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 75 of 98 PageID: 47436
67

before the Fairness Hearing and entry of the Final Approval Order. Further, the

Court retains jurisdiction of the case after the Final Approval Order and throughout 

the execution of the Plan of Distribution so it can address the reasonableness of 

fees that may subsequently be claimed by non-class counsel if that issue should 

arise. 

Sixth, the procedure for processing individual claims under the settlement is 

fair and reasonable. For instance, required proof of disease and disease level for 

injury level-based compensation (called a Part B claim in the Plan of Distribution) 

may be established through a certification of a disease adjudication from one of 

several designated asbestos trusts, which the claims administrator will obtain on 

request. The audit process contains appropriate and adequate protections against 

fraud, allowing certifications only from those trusts that themselves maintain 

reliable anti-fraud standards. All in all, the claims process is fair, relatively simple 

(in comparison to litigation), and familiar to the asbestos claimant bar. 

For these reasons, other than two neutral factors, all the Prudential factors 

support approval of the proposed Settlement Agreement.

C. The Court should conditionally certify the Settlement Class.

Plaintiffs request that the Court conditionally certify the Settlement as set 

forth in the Settlement Agreement.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 76 of 98 PageID: 47437
68

When confronted with a request for a settlement-only class certification, “a 

district court need not inquire whether the case if tried, would present intractable 

management problems . . . for the proposal is that there will be no trial.” In re 

Warfarin Sodium Antitrust Litig., 391 F.3d 516, 529 (3d Cir. 2004). A court should 

certify a settlement-only class where: “(1) the class is so numerous that joinder of 

all members is impracticable; (2) there are questions of law and fact common to 

the class; (3) the claims or defenses of the representative parties are typical of the 

claims or defenses of the class; and (4) the representative parties will fairly and 

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). 

Once satisfied that the requirements of Rule 23(a) are met, the Court must 

then look to Rule 23(b) for more prerequisites. Under that provision, the 

certification of a class seeking monetary compensation requires a showing that 

“questions of law and fact common to class members predominate over any 

questions affecting only individual members, and that a class action is superior to 

other available methods for fairly and efficiently adjudicating the controversy.” 

Fed. R. Civ. P. 23(b)(3).

In conducting a “rigorous analysis” of the “factual and legal allegations” 

underpinning this request for certification, Comcast v. Behrend, 569 U.S. 27, 33 

(2013), this Court can and should find that each of the requirements of Rule 23(a)

and (b)(3) are easily met for the proposed Settlement Class.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 77 of 98 PageID: 47438
69

1. Numerosity.

Rule 23(a)(1) sets forth what is commonly known as the “numerosity” 

requirement. The “numerosity requirement is satisfied when ‘the class is so 

numerous that joinder of all members is impracticable.’” In re Modafinil Antitrust 

Litig., 837 F.3d 238, 249 (3d Cir. 2016) (quoting Fed. R. Civ. P. 23(a)(1)). This 

“calls for an inherently fact-based analysis.” Id. at 249–250 (citing Stewart v. 

Abraham, 275 F.3d 220, 226–227 (3d Cir. 2001)). In the Third Circuit, the 

numerosity requirement is generally met if “the potential number of plaintiffs 

exceeds 40[.]” Id. 

The numerosity requirement is easily satisfied here as there are thousands of 

putative Class Members connected with the Underlying Lawsuits which meet the 

class definition based on the Bevan Law Firm’s Emtal Talc cases alone. Based on 

an analysis by Verus LLC, the proposed claims administrator, of litigation 

documents produced in discovery by Defendants, Engelhard’s insurers and the 

Bevan Law Firm, in which parties named in Underlying Lawsuits are matched to 

Verus’ asbestos claims database and TransUnion LLC’s proprietary database, 

Plaintiffs estimate that there are somewhere between approximately 7,500 to 8,500 

physically injured asbestos plaintiffs who filed Underlying Lawsuits against BASF 

during the class period. Adding to this class population of primary claimants are 

spouses and wrongful death/survival claim derivative plaintiffs who over the years 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 78 of 98 PageID: 47439
70

sued Engelhard/BASF based on a physically injured person’s injury (“Derivative 

Claimants”). 

In view of these numbers, joinder of all parties would be impracticable, thus 

satisfying Rule 23(a)(1).

2. Commonality.

The second prong of Rule 23(a)—commonality—requires “consideration of 

whether there are ‘questions of law or fact common to the class[.]” Reyes v. 

Netdeposit, LLC, 802 F.3d 359, 482 (3d Cir. 2015) (citing Fed. R. Civ. P. 

23(a)(2)). “A putative class satisfies Rule 23(a)’s commonality requirement if the 

named plaintiffs share at least one question of fact or law with the grievances of 

the prospective class.” Id. (quoting Rodriguez v. Nat’l City Bank, 726 F.3d 372, 

382 (3d Cir. 2013)). The court’s focus must be “on whether the defendant’s 

conduct [is] common as to all class members[.]” Sullivan v. DB Invs., Inc., 667 

F.3d 273, 298 (3d Cir. 2011) (emphasis added). And that “bar is not a high one.” 

Reyes, 802 F.3d at 486 (quoting Rodriguez, 726 F.3d at 382). The Third Circuit has 

“acknowledged commonality to be present even when not all plaintiffs suffered an 

actual injury, when plaintiffs did not bring identical claims, and, most dramatically, 

when plaintiffs’ claims may not have been legally viable[.]” Id.

The commonality requirement is easily satisfied here. Questions and 

answers surrounding the asbestos content of Emtal Talc, the knowledge of 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 79 of 98 PageID: 47440
71

Defendants, what Defendants represented to plaintiffs in the Underlying Lawsuits, 

the legal obligation of Defendants to disclose the evidence of asbestos in Emtal 

Talc, and whether Defendants concealed such evidence as alleged in the SAC are 

common to Plaintiffs and the putative members of the Settlement Class. 

The Court should therefore find the commonality requirement met as 

Defendants allegedly injured the putative Settlement Class Members through the 

“same course of conduct.” See NFL, 821 F.3d at 427 (finding that the commonality 

requirement satisfied because “the NFL Parties allegedly injured retired players 

through the same course of conduct.”). Indeed, even if the members of the 

Settlement Class sustained different degrees of bodily injury, their claims for fraud 

and fraudulent concealment nevertheless “still depend on the same questions 

regarding” Defendant’s conduct. Id. And with that being the case, the commonality 

requirement is satisfied here.

3. Typicality. 

Rule 23(a)(3) requires that the claims of representative plaintiffs be “typical 

of the claims...of the class.” In evaluating typicality, courts ask “whether the 

named plaintiffs’ claims are typical, in common-sense terms, of the class, thus 

suggesting that the incentives of the plaintiffs are aligned with those of the class.” 

Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994). The purpose of that inquiry is 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 80 of 98 PageID: 47441
72

“to uncover conflicts of interest between named parties and the class they seek to 

represent.” In re Prudential, 148 F.3d at 312.

The Third Circuit has “set a ‘low threshold’ to meet typicality.” NFL Players 

Concussion Injury Litig., 821 F.3d 410, 428 (3d Cir. 2016) (quoting Newton, 259 

F.3d at 183). The typicality requirement “does not mandate that all putative class 

members share identical claims.” Newton, 259 F.3d at 184. To the contrary, the 

class still passes muster even if the class members’ injuries vary. NFL Players 

Concussion, 821 F.3d at 428.

The inquiry into typicality “focuses on the similarity of the legal theory and 

legal claims; the similarity of the individual circumstances on which those theories 

and claims are based; and the extent to which the proposed representative may face 

significant unique or atypical defenses to her claims.” In re Schering Plough Corp., 

589 F.3d 585, 597–98 (3d Cir. 2009). Moreover, the typicality analysis focuses on 

the conduct of the defendants, not that of the class representatives. In re IGI Secs. 

Litig., 122 F.R.D. 451, 456 (D.N.J. 1988). Thus, “factual differences will not 

render a claim atypical if the claim arises from the same event or practice or course 

of conduct that gives rise to the claims of the class members, and if it is based on 

the same legal theory.” Baby Neal, 43 F.3d at 58.

The claims of the Representative Plaintiffs typify those of the putative 

Settlement Class Members. The Representative Plaintiffs represent six deceased 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 81 of 98 PageID: 47442
73

Emtal claimants (“Decedents”), each of whom, had sued Engelhard or BASF for 

asbestos-injury. As a result, Defendants’ conduct, according to Plaintiffs, rendered 

all claims brought by members of the putative Class virtually valueless because the 

inability to prove that Emtal Talc contained asbestos made all such claims 

defective, in the first instance. The Representative Plaintiffs’ claims typify every 

other putative Settlement Class Member because Defendants defended every 

lawsuit the same way by denying that Emtal Talc contained asbestos and that there 

was any evidence that it did. 

4. The Representative Plaintiffs’ interests fully align with those of the 

putative Settlement Class as they made the same fraud, fraudulent 

concealment and conspiracy claims under New Jersey law.

The final prong of Rule 23 “encompasses two distinct inquiries designed to 

protect the interests of absentee class members: ‘it considers whether the named 

plaintiffs’ interests are sufficiently aligned with the absentees’, and it tests the 

qualification of the counsel to represent the class.” In re Community Bank of 

Northern Virginia, 418 F.3d 277, 203 (3d Cir. 2005) (quoting In re Gen. Motors 

Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F3d 768, 800 (3d Cir. 

1995)). 

a. Representative Plaintiffs.

Class representatives “must be part of the class and possess the same interest

and suffer the same injury as the class members.” Id. at 625-26. As the Third 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 82 of 98 PageID: 47443
74

Circuit has explained, the “linchpin of the adequacy requirement is the alignment 

of interests and incentives between the representative plaintiffs and the rest of the 

class.” Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012). 

The interests of the Representative Plaintiffs and putative Class Members 

are closely aligned here. They all brought lawsuits against Engelhard, or its 

corporate successor, BASF, which were dismissed, either voluntarily or not. They 

all also allege that from 1984 to 2010, Engelhard and its former law firm, Cahill, 

made misstatements or concealed evidence about the existence of asbestos in 

Emtal Talc, which caused (either voluntarily or not) the dismissal of their cases. In 

other words, all members of the putative Settlement Class allege that their injuries 

arose from one cause—the fraudulent concealment of evidence—by BASF and 

Cahill over a defined time-period. Representative Plaintiffs and the putative Class 

Members thus possess the same interest and suffered the same injury.

Indeed, the Settlement Class proposed here avoids the sort of fundamental 

conflict that might defeat a finding of adequacy: a futures problem. See NFL, 821 

F.3d at 431. Unlike the “sprawling” proposed class in Amchem, which involved 

hundreds of thousands and perhaps millions of people who were or someday may 

be adversely affected by past exposure to asbestos products manufactured by one 

or more of twenty companies, the proposed Settlement Class compensates Class 

Members for injuries and losses suffered years ago by a defined group who had 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 83 of 98 PageID: 47444
75

filed suits against one company (Engelhard/BASF), which were dismissed during 

the class period (and hence there are no future claimants to consider as all Class 

Members have already had an alleged manifest asbestos disease qualifying them), 

and utilizes a rational means of distributing the settlement proceeds. In other 

words, this class has a great deal of cohesion given that, unlike Amchem and Ortiz, 

there are no “exposure-only plaintiffs” in the putative class that have not already 

filed claims that were dismissed based on the alleged past conduct of the 

Defendants. Here, in contrast to Amchem and Ortiz, claimants either brought and

had their lawsuit dismissed by March 30, 2011, or not. No divide exists between 

holders of present and future claims here. And lacking that, no conflict could be 

found between the putative class members, much less a fundamental one. See In re 

Pet Foods Products Liability Litigation, 629 F.3d 333, 346 (3d Cir. 2010)

(rejecting argument that subclasses were necessary because “all class members . . . 

have present claims”).

While the proposed Settlement Agreement features a claims process that will 

differentiate payment shares between Class Members based on the degree of their 

underlying asbestos-injuries and disease, “differences in settlement value do not, 

without more, demonstrate conflicting or antagonistic interests within the class.” 

Pet Foods, 629 F.3d at 346. After all, “varied relief among class members with 

differing claims in class settlements is not unusual.” Id. (citing Petrovic v. Amoco 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 84 of 98 PageID: 47445
76

Oil Corp., 200 F.3d 1140, 1146 (8th Cir. 1999) (“[A]lmost every settlement will 

involve different awards for various class members.”). And more fundamentally, 

“if subclassing is required for each material legal or economic difference that 

distinguishes class members, the Balkanization of the class action is threatened.” In 

re Cendant Corp. Sec. Litig., 404 F.3d 173, 202 (3d Cir. 2005).11

No subclasses are necessary here. The Plan of Distribution’s use of four 

different levels of allocation from the Settlement Fund reflect the relative value of 

the different injuries, which drive the value of the alleged fraud and concealment 

damages allegedly sustained by members of the Settlement Class. Plaintiffs 

developed the Plan of Distribution by drawing on the experience and expertise of 

Verus as well as historical information on the resolution of asbestos-injury claims 

from several sources, including asbestos settlement trusts. The Plan of Distribution 

11 The Settlement’s release will release all class members’ personal injury claims 

against the Released Parties (which includes BASF) based on prior exposure to 

Emtal Talc, including any claim for possible future disease progression from a 

non-malignant asbestos disease to a malignant asbestos disease (a/k/a “second 

asbestos disease claims”). The Plan of Distribution will make its Part B Fund 

allocations based on the Primary Claimant’s (i.e.- the physically injured person) 

asbestos disease severity level as of the time of the claim submission to the 

Settlement Fund. The class Notice advises currently living class members with a 

non-malignant asbestos disease that there will be no further right to claim for a 

malignancy against either the Released Parties or the Settlement Fund should a 

malignant asbestos disease manifest in the future. Of course, those Class Members 

retain all other existing rights and claims against other parties who are not 

defendants in this Action who are potentially liable. 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 85 of 98 PageID: 47446
77

therefore fairly reflects the extent of the injury that the Settlement Class Members 

incurred and which they could not prosecute without the evidence of asbestos in 

Emtal Talc that Defendants allegedly denied to them. The Court should therefore 

find that the interests of the Representative Plaintiffs and putative Class Members 

are closely aligned, and that establishing subclasses would have risked slowing 

down and even halting settlement discussions. See N.F.L., 821 F.3d at 432 n.9 

(agreeing that additional subclasses “were unnecessary and risked slowing down or 

even halting the settlement negotiations”). 

b. Class Counsel.

In connection with this motion, Plaintiffs provide firm biographies for 

Cohen, Placitella & Roth P.C, which include the qualifications and 

accomplishments of its members. Exhibit BB. Plaintiffs’ Counsel devoted 

themselves to this case for over nine years. Indeed, throughout the lengthy and 

hotly contested proceedings Defendants were represented by highly able and 

experienced counsel. Plaintiffs’ Counsel, moreover, have proved themselves to be 

more than adequate to represent the Class throughout this intense litigation, which 

included extensive pre-suit investigation about Emtal Talc and the Underlying 

Lawsuits after discovering the initial information from Westfall; development of a 

claim for relief based on fraud and fraudulent concealment which had occurred 

decades in the past; several rounds of significant motions to dismiss; a successful 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 86 of 98 PageID: 47447
78

Third Circuit appeal; extensive discovery and intense motion practice on remand to 

the District Court; and multiple rounds of mediation. 

5. The Court should conditionally certify a settlement class under Rule 

23(b)(3) for monetary relief.

To gain certification under Rule 23, the named plaintiffs must show “that the 

questions of law or fact common to class members predominate over any questions 

affecting only individual members, and that a class action is superior to other 

available methods for fairly and efficiently adjudicating controversy.” In re 

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2008). Plaintiffs 

meet both of these Rule 23(b)(3) “predominance and superiority” requirements.

a. Common questions of law and fact predominate.

Common questions of law and fact predominate in this Action. Here, 

Plaintiffs alleged that all the Underlying Lawsuits were truncated as a result of 

Defendants’ alleged fraud, namely that Defendants purportedly concealed the 

presence of asbestos in their talc products.12

12 Defendants do not admit this to be the case and claim the allegations against 

them are unfounded and not true, and that, in fact, they did nothing wrong or 

improper. The settlement before the Court is a genuine compromise of intensely 

different views that is being proposed to bring nine years of constant litigation to 

an end and avoid the further burden, distraction and considerable expense of 

continuing with the litigation.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 87 of 98 PageID: 47448
79

The predominance inquiry “calls upon courts to give careful scrutiny to the 

relation between common and individual questions in a case.” Tyson Foods, Inc. v. 

Bouaphakeo, __ U.S. __, 136 S. Ct. 1036, 1045 (2016). It “‘tests whether proposed 

classes are sufficiently cohesive to warrant adjudication by representation.’” NFL, 

821 F.3d at 434 (quoting Amchem Prods v. Windsor, 521 U.S. 591, 623 (1997)). 

Compared to the commonality test of Rule 23(a), Rule 23(b)’s predominance test is 

more demanding. Id. (citing Warfarin, 391 F.3d at 528). But significantly, courts 

are “inclined to find the predominance test met in the settlement context.” Id.

(quoting Sullivan, 667 at 304 n.29).

“Predominance is a test readily met in certain cases alleging consumer or 

securities fraud or violations of the antitrust laws.” Amchem, 521 U.S. at 625. The 

principle readily extends to this fraud and fraudulent concealment action. 

Recognizing this principle, the Third Circuit held in Warfarin that common issues 

predominated because plaintiffs alleged that DuPont “engaged in a broad-based 

campaign, in violation of federal and state consumer fraud and antitrust laws, to 

deceive consumers, TPPs, health care professionals, and regulatory bodies into 

believing that generic warfarin sodium was not an equivalent alternative to 

Coumadin.” Warfarin, 391 F.3d at 528. These allegations, as the Third Circuit 

explained, raised several questions of law and fact that predominated over any 

individual issues, “including the unlawfulness of DuPont’s conduct under federal 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 88 of 98 PageID: 47449
80

antitrust laws as well as state law, the causal linkage between DuPont’s conduct 

and the injury suffered by the class members, and the nature of the relief to which 

class members are entitled.” Id. The Third Circuit also noted that proof of 

DuPont’s liability “depends on evidence which is common to the class members, 

such as evidence that DuPont made misrepresentations about Coumadin and 

generic warfarin sodium . . . .” Id. Or put another way, as the Third Circuit noted, 

“while liability depends on the conduct of DuPont, and whether it conducted a 

nationwide campaign of misrepresentation and deception, it does not depend on the 

conduct of individual class members.” Id.

The Third Circuit similarly found in NFL that common issues focusing on 

the “NFL’s knowledge and conduct as well as common scientific questions 

regarding causation” predominated over individual ones. NFL, 821 F.3d at 434. As 

the Third Circuit recognized, the negligence claims there “depend[ed] on 

establishing that the NFL . . . knew of the dangers of concussive hits yet failed to 

modify the rules of NFL Football to mitigate them, or even to warn [r]etired 

[p]layers that they were risking serious cognitive injury by continuing to play.” Id.

The fraud claims, according to the Third Circuit, likewise “suggest a similarly farreaching scheme, alleging that the . . . MTBI Committee repeatedly obfuscated the 

link between football play and head trauma.” Id.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 89 of 98 PageID: 47450
81

The objectors in NFL argued that “damage claims in mass-tort class 

action[s] . . . are too individualized to satisfy the requirements of predominance.” 

Id. The Third Circuit disagreed, noting that “Amchem itself warned that it does not 

mean that a mass tort case will never clear the hurdle of predominance.” Id. (citing 

Amchem, 521 U.S. at 624). To the contrary, as the Third Circuit explained, the 

“class of retired NFL players does not present the same obstacles for predominance 

as the Amchem class of hundreds of thousands (maybe millions) of persons 

exposed to asbestos.” Id.

The Third Circuit has held that fraudulent concealment by a defendant “is a 

common question, subject to being uniformly resolved on behalf of all members of 

the class.” Winoff Industries v. Stone Container Corp. (In re Linerboard Antitrust 

Litig.), 305 F.3d 145, 160–61 (3d Cir. 2002). It does not matter that there may be 

individual questions in an action for fraud and fraudulent concealment, such as on 

damages. Id.; see also Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 

154 (3d Cir. 2001) (“obstacles to calculating damages may not preclude class 

certification”). What matters is that Plaintiffs have alleged the existence of a 

common scheme to defraud all putative members of the Settlement Class in the 

same manner with the same result. Thus, as in Warfarin and NFL, liability here 

depends on whether Defendants allegedly denied Class Members an evidential 

record containing evidence that Emtal Talc contained asbestos.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 90 of 98 PageID: 47451
82

b. Superiority.

Rule 23(b)(3)’s superiority requirement “asks the court to balance, in terms 

of fairness and efficiency, the merits of a class action against those of alternative 

available methods of adjudication.” NFL, 821 F.3d at 434. In performing this task, 

courts “consider the class members’ interests in individually controlling litigation, 

the extent and nature of any litigation, the desirability or undesirability of 

concentrating the litigation, and the likely difficulties in managing a class action.” 

Id. (citing Fed. R. Civ. P. 23(b)(3)(A)-(D)).

In NFL, the district court found the superiority requirement “satisfied 

because ‘the [s]ettlement avoids thousands of duplicative lawsuits and enables fast 

processing of a multitude of claims.’” NFL, 821 F.3d at 435 (citing Turner, 307 

F.R.D. at 382). In much the same vein, this proposed Settlement would avoid 

thousands of duplicative lawsuits that as the experience in this case demonstrates, 

would involve lengthy and costly proceedings. 

If each member of the putative Settlement Class were left to litigate his or 

her claims individually, decades of litigation would likely ensue at significant 

expense in many different state and federal courts throughout the country, 

potentially resulting in conflicting rulings. Compensation resulting from such 

individual litigation is highly uncertain given the disputes over product 

identification and the attorney-client privilege, which may not be resolved before 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 91 of 98 PageID: 47452
83

lengthy, duplicative and costly trial and appellate proceedings are complete. The 

approval of a Settlement Class here is superior to individual litigation as the Plan 

of Distribution provides a coherent, fair, and economical process for a claims 

administrator to resolve all claims without the need for individual trials. The 

Settlement Agreement also provides that the Defendants will pay $3.5 million to 

cover the costs of administration.

D. The proposed form and method of class notice satisfy due process.

After preliminarily approving a class action, the Court “must direct notice in 

reasonable manner to all class members who would be bound by the proposal.” 

Fed. R. Civ. P. 23(e)(1). The Court must ensure that class members receive the 

“the best notice that is practicable under the circumstances, including individual 

notice to all members who can be identified through reasonable effort.” Fed. R. 

Civ. P. 23(c)(2)(B).

In “plain, easily understood language,” the notice must “clearly and 

concisely state”: “(i) the nature of the action; (ii) the definition of the class 

certified; (iii) the class claims, issues or defenses; (iv) that a class member may 

enter an appearance through an attorney if the member so desires; (v) that the court 

will exclude from the class any member who requests exclusion; (vi) the time and 

manner for requesting exclusion; and (vii) the binding effect of a class judgment on 

members under Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B). In addition to the 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 92 of 98 PageID: 47453
84

requirements of Rule 23, the notice must satisfy due process requirements that the 

notice be “reasonably calculated, under all the circumstances, to apprise interested 

parties of the pendency of the action and afford them an opportunity to present 

their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 

314 (1950).

The proposed long-form and short-form notices satisfy these requirements.

See Exhibits K and L, respectively. Both of these notices are written in plain and 

straightforward language. They also objectively and neutrally apprise all 

Settlement Class Members that of the nature of action; the benefits of the proposed 

Settlement, the definition of the Settlement Class to be certified; the claims, issues 

and defenses in the Williams Action; that the Court will exclude from the Class 

anyone who opts out of the Settlement pursuant to procedures and deadlines for 

doing so; the binding effect of a class judgment on Settlement Class Members; and 

the procedures and deadlines for the submission of objections to any aspect of the 

proposed Class Action Settlement. Complete as these disclosures are, this Court 

should approve the proposed long-form and short-form notices.

To deliver the best notice practicable to the putative Class, the Parties 

together with their notice agent, Orran L. Brown, Sr., of BrownGreer PLC, have 

developed a comprehensive Notice Plan that more than satisfies the requirements 

of Rule 23 and due process. Exhibit M. As described earlier, through extensive 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 93 of 98 PageID: 47454
85

data analysis, BrownGreer was able to identify deceased putative Class Members, 

their first-degree relatives, and the last known addresses for these relatives and 

putative Class Members presumed to be living. BrownGreer will mail the longform notice to all these individuals and estimates that in excess 77% of the putative 

Settlement Class can be reached directly or through at least one living relative. See

Grunewald v. Kasperbauer, 235 F.R.D. 599, 609 (E.D. Pa. 2006) (approving direct 

notice plan that would reach 55% of the class).

To supplement the direct notice program, BrownGreer has also designed a 

constructive notice program designed to expose potential Class Members to the 

notice. In so doing, BrownGreer considered the characteristics of the putative Class 

Members and how those audience members are most likely to see and respond to 

the notice. 

To provide supplemental notice to these putative Class Members, 

BrownGreer will (1) place advertisements in both national publications as well as 

regional ones in Ohio, Mississippi, Georgia, and Alabama; (2) place banner 

advertisements in the online version of People magazine and through a paid search 

component involving the use of targeted keywords on top Internet search engines, 

such as Google; and (3) release a press release through Cision/PR Newswire that 

BrownGreer expects will be picked up by hundreds of media outlets. See Turner, 

307 F.R.D. at 385-86 (approving notice program that included direct notice to 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 94 of 98 PageID: 47455
86

putative class members and supplemental notice through paid media 

advertisements and internet ads on websites).

The Notice Plan as designed provides the best notice practicable under the 

circumstances; and therefore, this Court should approve the Notice Plan as it 

satisfies the requirements of Rule 23 and due process.

E. The plan of distribution treats class members equitably relative to each 

other.

The Plan of Distribution of the Settlement Fund is fair and reasonable and 

should therefore be approved.

“Approval of a plan of allocation of a settlement fund in a class action is 

governed by the same standard of review applicable to approval of the settlement 

as a whole: the distribution plan must be fair, reasonable and adequate.” In re 

Computron Software, 6 F. Supp. 2d 313, 321 (D.N.J. 1998) (citing Class Plaintiffs 

v. City of Seattle, 955 F.2d 1268, 1284-85 (9th Cir.), cert. denied sub nom 506 U.S. 

953 (1992)). “A plan of allocation that reimburses class members based on the 

extent of their injuries is generally reasonable.” Id. (internal citations omitted). See 

also In re Omnivision Techs., 559 F. Supp. 2d 1036, 1045 (N.D. Cal. 2007) (“It is 

reasonable to allocate the settlement funds to class members based on the extent of 

their injuries or the strength of their claims on the merits.”).“It is also reasonable to 

allocate more of the settlement to class members with stronger claims on the 

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 95 of 98 PageID: 47456
87

merits.” In re Oracle Sec. Litig., No. 90-931, 1994 U.S. Dist. LEXIS 21593, *3-4 

(N.D. Cal. 1994).

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

particularly if recommended by ‘experienced and competent’ class counsel.” 

Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 367 (S.D.N.Y. 2002)

(quoting White v. NFL, 822 F. Supp. 1389, 1420-24 (D. Minn. 1993), aff’d, 41 

F.3d 402 (8th Cir. 1994)). The Court cannot “blindly accept the recommendation 

of class counsel[.]” In re Federal Skywalk Cases, 97 F.R.D. 380, 389 (W.D. Mo. 

1983). But it “is entitled to and [should] place considerable weight on their 

recommendations.” Id. Indeed, as this Court has recognized, “courts give great 

weight to the opinion of qualified counsel” in determining the fairness, 

reasonableness and adequacy of a proposed plan of distribution.” In re Royal 

Dutch/Shell Transp. Sec. Litig., No. 04-374, 2008 U.S. Dist. LEXIS 124269, *66 

(D.N.J. 2008).

As discussed above, the Plan of Distribution calls for the establishment of 

three compensation programs to which Settlement Class Members meeting defined 

eligibility criteria may apply for compensation award payments based on the 

existence and severity of asbestos disease. The first program, Part A, provides Base 

Payments of up to $500 to Settlement Class Members from a $ 6.25 million subfund.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 96 of 98 PageID: 47457
88

The Plan’s Part B program would provide additional compensation to 

Injured Persons in the Underlying Lawsuits from a $ 59.75 million sub-fund to be 

allocated among and paid to those Claimants adjudicated to be eligible according 

to the disease level sustained using an assigned number of “Qualifying Claim 

Points” based on whether they have a Part B Level 1, 2, 3, or 4 disease. Verus 

determined the number of Qualifying Claim Points” for each asbestos disease 

category based upon a survey and analysis of the compensation programs 

employed by eighteen relatively comparable bankruptcy asbestos trust claims 

facilities. See Declaration of Mark Zabel, Exhibit E.

Lastly, the Plan’s Part C program features a $ 6.5 million Extraordinary 

Injury Fund, under which the Settlement Trustee has discretionary authority to 

award additional compensation to claimants with mesothelioma who can also 

establish that they sustained an extraordinary physical injury and/or economic loss.

As Plan of Distribution would reimburses class members based on the extent 

of their injuries, the Plan is reasonable and should be preliminarily approved.

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 97 of 98 PageID: 47458
89

V. Conclusion

For these reasons, the Court should preliminarily approve the Class Action 

Settlement, conditionally certify the proposed Settlement Class, authorize the 

proposed Notice Program, allow Interim Claims Processing under the proposed 

Plan of Distribution, and set a schedule for final approval of the Class Action 

Settlement.

 Respectfully Submitted, 

COHEN, PLACITELLA & ROTH, P.C.

/s/ Christopher M. Placitella 

Christopher M. Placitella, Esq 

(NJ Atty #: 027781981)

Michael Coren, Esq.

(NJ Atty #: 024871979)

Jared M. Placitella, Esq.

(NJ Atty #: 068272013)

Eric S. Pasternack, Esq.

(NJ Atty #: 015132011)

127 Maple Avenue

Red Bank, NJ 07701

(732) 747-9003

 

Attorneys for Plaintiffs and the Putative Class

Dated: July 16, 2020

Case 2:11-cv-01754-JAD Document 621-1 Filed 07/23/20 Page 98 of 98 PageID: 47459