These questions and responses are provided mainly for primary counsel representing Class Members in the Chinese Drywall Taishan Settlement. Class Members should refer to Frequently Asked Questions for Class Members provided here.
Many of the answers here are drawn from the Class Settlement Agreement With Taishan Gypsum Company Ltd., which is available on this website here. Counsel should review the Settlement Agreement in full. In case of any conflict between these FAQs and the Settlement Agreement, the Agreement will control. All other documents referenced here are available for review on this website under the Documents & Links menu.
- What is the Taishan Settlement?
On August 30, 2019, the Court in MDL No. 2047 preliminarily approved a class settlement with Taishan (see Question 4) and preliminarily certified a Settlement Class (see Questions 2 and 3) to settle Chinese Drywall claims (see Question 10). Although Taishan is the counterparty and sole Defendant signing the Agreement (Question 4), the Settlement involves Additional Released Parties (Question 5).
- Who is a Settlement Class Member?
The following persons or entities are members of the Preliminarily Certified Settlement Class:
- all Class Members in the Amorin Class certified in MDL No. 2047 in In re Chinese-Manufactured Products Liability Litigation, 2014 WL 4809520 (E.D. La. Sept. 26, 2014) (“Amorin Plaintiffs”);
- all Plaintiffs who are named on one or more of the three operative Brooke Complaints (“Brooke Plaintiffs”); and
- all other property owners with Chinese Drywall alleged to be attributed to Taishan and/or the Additional Released Parties (“Absent Class Members”).
The Master Spreadsheet lists 3,654 Known Amorin and Brooke Class Members who have previously submitted proof of Covered Chinese Drywall.
- Are there any persons or entities excluded from the Settlement Class?
The following person or entitles are excluded from the Preliminarily Certified Taishan Settlement Class:
- Plaintiffs listed on Exhibit 1 to the Settlement Agreement (Exhibit 1 lists 498 Florida Plaintiffs who are included in a separate settlement agreement with Taishan);
- The named Plaintiff and putative class members in The Mitchell Co., Inc. v. Knauf Gips KG, et al., Civil Action No. 09-4115 (E.D. La.) (involving commercial builders); and
- Plaintiffs who asserted Claims against Taishan and/or the Additional Released Parties, but whose Claims were dismissed for failure to complete a Supplemental Plaintiff Profile Form (“SPPF”) or by motion for voluntary dismissal.
Excluded persons and entities are not entitled to submit a claim for settlement benefits.
- Who is the Settling Defendant Taishan?
The primary Settling Defendant is Taishan Gypsum Company Ltd. f/k/a/ Shandong Taihe Dongxin Co., Ltd. and Taishan Gypsum Co., Ltd., and Taian Taishan Plasterboard Co., Ltd. Other entities encompassed by Taishan’s settlement are set forth at Section 1.1.1 of the Settlement Agreement.
- Who are the Additional Released Parties?
The Additional Released Parties include Beijing New Building Materials Public Limited Company; Beijing New Building Materials (Group) Co., Ltd.; China National Building Materials Co., Ltd.; China National Building Materials Group Corporation; and the State-Owned Assets Supervision and Administration Commission of the State Council. For a complete list, see Section 1.1.2 of the Settlement Agreement.
- Who is the Claims Administrator and What is its Role?
BrownGreer PLC is the Claims Administrator. BrownGreer will apply the Allocation Model (see Question 15) to the Objective Allocation Criteria for Known Class Members as set forth in the Master Spreadsheet. BrownGreerwill apply the Allocation Model to the Objective Allocation Criteria for absent Class Members and any other Class Members not listed on the Master Spreadsheet that is timely submitted in a Claim Form.
- What is Covered Chinese Drywall?
Covered Chinese Drywall means all drywall products alleged to have been manufactured by Taishan and/or any of the Additional Released Parties. In the course of the MDL Litigation, certain markings have been placed in the following Product ID categories or “buckets”:
A – BNBM and Dragon Brand;
B – C&K;
C – Chinese Manufacturer #2 (purple stamp);
D – Crescent City Gypsum;
E – DUN;
F – IMT Gypsum;
G – ProWall;
H – TAIAN TAISHAN and Taihe edge tape;
I – MADE IN CHINA MEET[S] OR EXCEED[S];
J – various Drywall dimensions, including 4feet[x/*]12feet[x/*]1/2inch;
K – Venture Supply; and
L – White Edge Tape, boards with no markings or boards with no markings other than numbers or letters.
The Master Spreadsheet provides the Product ID category on record for all Known Class Members.
- What is NOT Covered Chinese Drywall?
Covered Chinese Drywall excludes the following drywall products: Knauf, Knauf Tianjin, KPT, Bedrock, ProRoc, Panel Rey, IMG, USG, Shamrock Gold, Lafarge, Georgia Pacific, National Gypsum, and any drywall manufactured outside of China.
- Who is eligible to participate in the Settlement?
Amorin Plaintiffs, Brooke Plaintiffs, and all other absent Class Members who are determined by the Claims Administrator to be eligible for an Allocation Amount of more than zero under the Allocation Model (“Eligible Class Members”). In order to be considered eligible for an Allocation Amount, Class Members must provide sufficient indicia of Covered Chinese Drywall in the subject Affected Property. Class Members on the Master Spreadsheet have previously provided sufficient indicia of Covered Chinese Drywall in the subject Affected Property.
- What Claims are covered by the Settlement?
All claims of Class Members against Taishan and the Additional Released Parties that were asserted, could have been asserted, or could be asserted by any of the Class Members, including property, bodily injury, statutory, punitive and attorneys’ fees claims. The Settlement will settle and resolve with finality all of Class Members’ Claims against Taishan and the Additional Released Parties in the Litigation and Related Actions.
- How do Class Members participate in the Settlement?
If a Class Member Name and Affected Property are included on the Master Spreadsheet, that Class Member does not need to do anything, unless the Name and Affected Property are flagged in gray and red as a competing claim. In that instance, the Class Member must submit to the Claims Administrator any documents that support his or her claim no later than [35 days after Preliminary Approval]. The Claims Administrator will allocate the competing claims in accordance with the Allocation Model.
If a Class Member is not included on the Master Spreadsheet, and is not excluded from the Class (see Question 2 above), the Class Member must open a Claimant profile on the BrownGreer Portal, complete a court-approved Claim Form under oath and submit supporting proofs and corroborating evidence of Objective Allocation Criteria required by the Claim Form to the Claims Administrator no later than DATE TBD. If you are a claimant representing yourself or an attorney representing a claimant and you have not been granted access to the BrownGreer Portal, you may request login credentials from BrownGreer, CDWQuestions@browngreer.com. If you are a claimant who is represented by an attorney, only your attorney can access the BrownGreer Portal. Step-by-step instructions on how to open a profile once logged into the BrownGreer Portal can be found here.
- When is the deadline to complete a Claim Form for Class Members not on the Master Spreadsheet?
The deadline to complete a Claim Form is DATE TBD. In order to submit a claim for settlement benefits, you must complete a court-approved Claim Form under oath and submit supporting proofs and corroborating evidence of Objective Allocation Criteria required by the Form to the Claims Administrator through the BrownGreer Portal (see Question 11_above).
- What if a Class Member disputes the information contained on the Master Spreadsheet?
Any Class Member listed on the Master Spreadsheet who disputes the information on the Master Spreadsheet shall provide to the Claims Administrator what he or she contends to be the correct information, as well as any supporting evidence or corroborating documentation within thirty-five (35) days of the Preliminary Approval Order, i.e., no later than October 3, 2019.
- How will the Settlement Funds be Allocated?
There will be only one Allocation Amount per Affected Property. The Allocation Amount is inclusive of remediation damages and other losses such as foreclosures and/or short sales, stigma damages, attorneys’ fees, and/or punitive damages. If there are Competing Claims for an Affected Property, the Allocation Amount will be divided in accordance with the Allocation Model. (See Question 6, above.)
- Who is the Allocation Neutral and what is his role?
Cal Mayo, Esquire, is the Allocation Neutral selected by the Parties, and approved by the Court, to develop the Allocation Model for the allocation and distribution of Settlement Funds among Eligible Class Members. The Allocation Model can be found here.
- What is the Allocation Model?
The Allocation Model is the model for allocation of Settlement Funds among Affected Properties and Eligible Class Members developed by the Allocation Neutral and subject to Court approval.
- What is an Allocation Amount?
The Allocation Amount is the share of the Settlement Funds that is awarded to an Eligible Class Member(s) based on the application of the Allocation Model to the proofs of Objective Allocation Criteria for an Affected Property as set forth in the Master Spreadsheet and/or provided to the Claims Administrator for Absent Class Members.
- What are Objective Allocation Criteria?
The Objective Allocation Criteria are the objective factors that the Allocation Neutral took into account to form the basis for the allocation of Settlement Funds among Eligible Class Members in the Allocation Model. The Objective Allocation Criteria include: (i) Under Air Square Footage of the subject Affected Property (ii) Product Identification, (iii) Ownership Status, (iv) Remediation Status. (v) Prior Payments, (vi) Assignments of Class Members’ rights to pursue Claims, (vii) whether the claimant is an Amorin Plaintiff, a Brooke Plaintiff or an Absent Class Member, and (viii) whether there are Competing Claims asserted for an Affected Property. However, each Objective Allocation Criterion does not necessarily impact claim value under the Allocation Model.
- What is Under Air Square Footage?
Under Air Square Footage is one of the Objective Allocation Criteria. Under Air Square Footage was distinguished in the litigation from total or overall square footage. The Court ruled that formulaic remediation damages for the Amorin class would apply only to Under Air Square Footage. “Under Air” is the area within the Affected Property that receives ventilation from the property’s heating and air systems, and does not include garages, attics, or basements that are not part of this ventilation system.
- What is Product Identification?
Product Identification is one of the Objective Allocation Criteria and refers to the proof of Covered Chinese Drywall in the Affected Property, as defined in Question 7. Class Members must provide proof of Covered Chinese Drywall based on one of the following: photographic indicia, sales or delivery records, chain of custody records, inspection report(s) or other proof that demonstrates that the property contains or contained the Chinese Drywall identified above. If no markings are on the drywall, Class Members must also submit one of the following: (1) a certified inspection report of elemental sulfur levels in samples of drywall core found in the home exceeding 10 ppm; (2) a certified laboratory confirmation of the presence of sulfur in the blackening of the grounding wires and/or air conditioning coils; or (3) other clear and convincing evidence such as sales or delivery records, chain of custody records, inspection report(s) or other proof that demonstrates that the property contains or contained Covered Chinese Drywall. Known Class Members on the Master Spreadsheet are deemed to have satisfied proof of Covered Chinese Drywall. Class Members not on the Master Spreadsheet must include Product Identification proof with their Claim Forms.
- What is Ownership Status?
Ownership Status is one of the Objective Allocation Criteria and refers to whether the Class Member owned the subject Affected Property as of May 23, 2019 (i.e. if the Class Member still owned the Affected Property on May 23, 2019, he or she is a Current Owner; if the Class Member sold the Affected Property before May 23, 2019, he or she is a Former Owner). May 23, 2019 was the date the parties entered into a Term Sheet for the Settlement.
- What is Remediation Status?
Remediation Status is one of the Objective Allocation Criteria and refers to whether the Affected Property was remediated of Chinese Drywall to any extent as of May 23, 2019, or, if sold prior to May 23, 2019, the Remediation Status as of the date of the Class Member’s sale or transfer of the Affected Property.
- What are Prior Payments?
Prior Payments are one of the Objective Allocation Criteria and refer to any payments received by Class Members relating to Chinese Drywall, including, for example, but not limited to, payments received under the Knauf, Global, Banner, or InEx Settlements.
- What is an Assignment of Class Members’ Right to Pursue Claims?
Assignment is one of the Objective Allocation Criteria. If a Class Member has assigned his or her legal right to pursue the Class Member’s remediation claim to another party (e.g., to a commercial builder that remediated the Affected Property at no cost to the Class Member), then the Class Member’s recovery under the settlement will be limited to the portion of the claims that the Class Member has retained (if any). (Note that commercial builders are excluded from making claims in this settlement (see Question 2), even if the builder has an assignment from the former or current property owner.)
- What is a Competing Claim?
If more than one claim is asserted by different Class Members with respect to a single Affected Property (such as, for example, a current and former owner both making a claim for the same Affected Property or a condominium association and the condominium unit owner both making a claim with respect to the same Affected Property), then the recovery attributable to that Affected Property will be allocated and divided between and among the Competing Claimants according to the Allocation Model.
- Can a Class Member Challenge the Allocation Model?
The Settlement Agreement provides that the review, determination and approval of the Allocation Model by the Court shall be final and binding on the Parties and the Class, with no further appeal. However, a Class Member can challenge to the MDL Court the Claims Administrator’s application of the Allocation Model to his or her claim (see Question 27 below).
- Can a Class Member Challenge their Allocation Amount Determination?
Any Class Member who believes the Allocation Model has been misapplied to his or her Claim shall have thirty (30) days to present a written challenge, no longer than three-pages, double-spaced, to the District Court. The record for challenging an Allocation Amount to the District Court shall be limited to (i) the original Master Spreadsheet filed on the Court docket at Rec. Doc. xxxxx, (ii) any additional documents, evidence or information submitted by the Class Member to the Claims Administrator within 30 days of Preliminary Approval correcting information identified on the original Master Spreadsheet, (iii) the revised Master Spreadsheet as modified by the Claims Administrator, and/or (iv) the Objective Allocation Criteria and supporting documentation submitted to the Claims Administrator by absent Class Members or any other Class Members not listed on the Master Spreadsheet. Class Members may not submit any new or additional evidence for purposes of appealing his or her Allocation Amount determination. The decision of the Court shall be final and binding on Class Members, and there shall be no appeal to any other court.
- What do Class Members need to do if they do not want to participate in the Settlement?
Class Members may opt out of the Settlement Class. If a Class Member elects to opt out, they will be excluded from sharing in the benefits of this Settlement. To opt out, a written notice of intention to opt out of the Settlement, signed by the individual Class Member, must be sent by first-class mail, post-marked on or before DATE, to: Arnold Levin and Sandra L. Duggan, Levin Sedran & Berman, 510 Walnut Street, Suite 500, Philadelphia, PA 19106; with copies to Richard J. Serpe, Law Offices of Richard J. Serpe, PC, 580 East Main St., Suite 310, Norfolk, VA 23510; and Stephen J. Herman, Herman, Herman & Katz, LLC, 820 O’Keefe Ave., New Orleans, LA 70113; and Patrick S. Montoya, Colson Hicks Eidson, 255 Alhambra Circle, Penthouse, Coral Gables, FL 33134. The notice of intent to opt-out must be in writing and be postmarked no earlier than DATE, but no later than DATE (the last day of the Opt-Out/Objection Period). The opt-out notice must be signed by the individual Class Member.
- How does a Class Member object to the Settlement?
To object to the Settlement, a Class Member must send a written objection to Class Counsel (see addressed in Question 28 above) post-marked on or before November 27, 2019. The objection must be signed by the Class Member and counsel; counsel’s signature alone is not sufficient. The objection must specify whether it applies only to the objector, to a specific subset of the class, or to the entire class, and must state with specificity the grounds for the objection. The objection must also state whether the Class Member intends to appear at the Fairness Hearing with or without counsel (who shall be identified), and must identify any witnesses intended to be called, the subject matter of the witnesses’ testimony, and all documents to be used or offered at the Fairness Hearing. The objection must contain the caption of MDL No. 2047 and contact information for the Class Member, including the address of the Affected Property at issue.
- How will attorneys’ fees be paid?
Upon final approval of the Settlement, Settlement Class Counsel, common benefit attorneys, and privately retained attorneys for all Class Members will be entitled to jointly petition the Court for an award of attorneys’ fees of up to 32% of the Settlement Funds and reimbursement of reasonable expenses. Class Counsel have agreed to limit their request for an award of attorneys’ fees for both common benefit and individually retained attorneys to 30%, which will compensate the attorneys for any and all fees that may be claimed from or owed by Class Members, and they will limit their request for reimbursement of costs to 3% ($4.4 million in Shared Expenses, $1.3 million in Held Costs, and a stipend of up to $500 (net of prior stipend payments) for each Affected Property to cover the Individual Case Costs associated with the prosecution of each eligible Settlement Class Member’s claim), so that the total fee and cost request does not exceed 33% of the Settlement Amount. The determination of any attorney’s fee will be determined by the Court.
- Who are Settlement Class Counsel?
Arnold Levin and Sandra L. Duggan of Levin Sedran & Berman, 510 Walnut Street, Suite 500, Philadelphia, PA 19106; Stephen J. Herman of Herman, Herman & Katz, LLC, 820 O’Keefe Ave., New Orleans, LA 70113; Richard J. Serpe of the Law Offices of Richard J. Serpe, P.C., 580 East Main St., Suite 310, Norfolk, VA 23510; and Patrick S. Montoya of Colson Hicks Eidson, 255 Alhambra Circle, Coral Gables, FL 33134.