This is the 35th e-newsletter (Vol. 4, No. 5) from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan. You were sent a copy of the newsletter because our records show that you requested to be on the mailing list. If you wish to unsubscribe or to reply to this newsletter, send an email to: info@tortcomm.org. Please do not hit "Reply" to this email address. Please use the email address: info@tortcomm.org.
The following proposed settlement applies only to "Notice of Intent" ("Conditional") claimants. A "Notice of Intent" claimant is someone who filed a Notice of Intent (NOI) or Proof of Claim (POC) form in the Dow Corning bankruptcy case that was received AFTER November 30, 1999 (the date the bankruptcy court confirmed or approved the Joint Plan of Reorganization of Dow Corning) and BEFORE August 30, 2004 (the deadline to file a Notice of Intent form). If you have any question about whether you are a Notice of Intent or "Conditional" claimant, contact the Settlement Facility at 1-866-874-6099 or at info@sfdct.com.
In 2004 � several months prior to the Effective Date of June 1, 2004 � Dow Corning filed a motion with the U.S. District Court in Detroit disputing that certain "Notice of Intent" claimants were eligible for Explant, Rupture, Disease and Expedited Release claims. After a series of lengthy negotiations, Dow Corning agreed in 2005 that the Plan allowed Notice of Intent claimants to recover for Disease claims (and only disease claims) and, since that time, these claims have and continue to be reviewed and paid.
The CAC continued its efforts to allow Notice of Intent claimants to be eligible for Explant, Rupture and Expedited Release. We are pleased to announce that we reached an agreement with Dow Corning that will allow Notice of Intent claimants who accept the settlement to recover these benefits. The CAC and Dow Corning filed a joint request that the Court enter a "Consent Order" that would resolve Dow Corning's objections. A copy of the proposed Consent Order is available on the CAC website at www.tortcomm.org under the tab of "NOI Claims." The proposed Consent Order is still subject to approval by the Court, and the settlement will not be implemented unless the Court approves it.
There are many reasons why we recommend that Notice of Intent claimants accept this settlement. It allows them to recover for Explant (removal of a Dow Corning breast implant) and Rupture, and also allows them to possibly receive a Premium Payment if these payments are approved for other non-NOI Claimants and if sufficient funds are available. It also allows NOI Claimants to have their claim processed and paid now without any further delay caused by the NOI Motions and continued litigation of the motions.
There are some settlement risks that should be considered. Under the settlement, the maximum amount available to pay all unmatched NOI Claimants for Explant and Rupture claims is $30 million. Based on the data we've seen and the analyses that were done, we believe this amount is sufficient to pay all unmatched NOI claims for Explant and Rupture in full. However, if it is not sufficient, then Explant and Rupture claims by NOI Claimants may be reduced pro rata just like claims can be reduced pro rata for non-NOI Claimants if there is a funding shortfall. This means there is a possibility, we believe slight, you would not be paid in full for Explant and/or Rupture claims under the settlement.
RUPTURE DEADLINES RESET FOR NOI CLAIMANTS. NOI Claimants (and only NOI Claimants) will also be allowed to submit a claim for Rupture anytime within the year following receipt of the NOI settlement package. We do not have an exact deadline for this now, but it will likely be sometime in August 2008. As soon as we have an exact deadline, we will send out another newsletter. The deadline will also be included in the package that NOI Claimants will be sent. Under the settlement, NOI Claimants can have their Dow Corning breast implants removed now and, if they are ruptured, you can still be eligible for a Rupture payment as long as your supporting proof meets the Plan criteria and is received before the one year deadline.
It is important to point out that this extension of the Rupture deadline does NOT apply to timely filed claimants. The CAC has a separate motion pending with the Court to extend the Rupture deadline for certain groups of timely filed claimants, and we are continuing to negotiate with Dow Corning to try and resolve that motion. Dow Corning agreed to extend the Rupture deadline for NOI Claimants only as part of the disputed NOI motion and because these claimants had been informed in the past that they were ineligible to qualify for Explant, Explant Assistance and Rupture. As a result, many NOI claimants did not submit a claim for these benefits by June 1, 2006. Again, unless you are a Notice of Intent claimant, the one year extension for Rupture does not apply to you. If you have any question about whether you are a Notice of Intent deadline, call the Settlement Facility at 1-866-874-6099.
EXPLANT DEADLINE SHORTENED FOR NOI CLAIMANTS. NOI Claimants (and only NOI Claimants) will have a shortened deadline to apply for Explant (implant removal). Unlike the deadline in the Plan, NOI Claimants will have only one year following receipt of the NOI settlement package to have their Dow Corning breast implant removed and to submit a claim for Explant. The Explant Assistance Program is available to assist claimants who cannot afford to pay for the surgery themselves. The deadline for timely filed claimants to submit an Explant claim is June 2, 2014, but for NOI claimants it will only be one year from the date noted in the NOI settlement package.
We recommend that NOI Claimants accept the settlement. If, however, an NOI Claimant wishes to reject the settlement, then she must litigate the NOI Motions on her own because we will support the settlement and will not assist you in opposing the NOI Motions. Continuing to litigate the NOI Motions will result in significant additional delays and carries with it the risks that are inherent in any litigated matter, including the possibility that the Court will deny your eligibility for an Explant or Rupture claim. We urge NOI Claimants to consider this carefully and, if represented by counsel, to consult with that attorney.