Waid et al v. Snyder et al

Filing 2684

OPINION and ORDER granting 2673 Motion for Preliminary Approval of Class Settlement with LAN Defendants. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.
________________________________/

Judith E. Levy
United States District Judge

This Order Relates To:
ALL CASES
________________________________/
OPINION AND ORDER GRANTING CLASS PLAINTIFFS’
MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT WITH THE LAN DEFENDANTS [2673]
Before the Court is Plaintiffs’ motion to grant preliminary approval
of a settlement with the LAN Defendants (“LAN Settlement” or “LSA”).1
(ECF No. 2673.) Plaintiffs already settled with other Defendants, which
the Court approved in the Amended Settlement Agreement (“ASA”).
(ECF Nos. 1319-1 (as amended, ECF No. 1394-2); 2008.) The LAN
Settlement builds on that one, proposing to add $8 million to the $626.5
million that have already been secured for tens of thousands of people
impacted by the Flint Water Crisis.

Leo A. Daly Company, Lockwood Andrews and Newnam, Inc., and Lockwood
and Newnam, P.C. (collectively, “LAN”).
1

Plaintiffs are thousands of Flint residents, property owners, and
business owners who allege professional negligence claims against LAN
for its work during the Flint Water Crisis. Individual Plaintiffs and
members of a certified Issues Class allege that LAN’s professional
negligence contributed to the Crisis, which injured Plaintiffs and
damaged their property and commercial interests.
The proposed LAN Settlement would not end the Flint Water Crisis
litigation. Non-settling Defendants remain in the litigation and the
Issues Class trial is set for February 2024.2
This settlement would contribute to the funds set up to make
monetary awards available to people exposed to Flint water during the
specified exposure period, as well as property owners and business
owners. Because the LSA presents a hybrid structure that includes a
class for unrepresented adults, property owners, and commercial entities,
preliminary approval of certain aspects of the proposed settlement is both
appropriate and necessary. The Court must also consider whether the

The Settling Defendants do not include private engineering firm Defendants
Veolia Water North America Operating Services, LLC; Veolia North America, LLC;
Veolia North America, Inc.; Veolia Environment, S.A.; and United States
Environmental Protection Agency. Therefore, if the proposed settlement receives
final approval, the litigation against these Defendants continues.
2

2

LSA is fair and in the best interests of claimants who are Minors and
Legally Incapacitated or Incompetent Individuals (“LIIs”).3
To grant preliminary approval, the Court must determine whether
the LSA is likely to receive final approval. Fed. R. Civ. P. 23(e)(1)(B). As
the Court explained in ruling on preliminary approval of the ASA:
[A]t this stage, the Court is to review the procedures related
to Minors and Legally Incapacitated Individuals (“LIIs”) to
determine whether they are fair and in the best interests of
Minors and LIIs. And also, the Court must determine whether
there is a sufficient basis to conditionally certify a settlement
class and subclasses as proposed. The Court must determine
whether the proposed settlement class and subclasses fall
within the range of possible approval, appear to be fair, and
are free of obvious deficiencies.
In re Flint Water Cases, 499 F. Supp. 3d 399, 409–10 (E.D. Mich. 2021)
(cleaned up).
For the reasons set forth below, the Court grants preliminary
approval of the LAN Settlement. This approval will trigger a period in
which minors, adults, property owners/renters, and commercial entities
may decide whether to participate in the Settlement. Class members may

3

An LII means an individual described in Mich. Comp. Laws § 700.1105(a).

3

object to the LSA provided they are registrants. Participants may also
proceed with their litigation against the non-settling Defendants.4
I.

Background

As the Court has previously said, “the Flint Water Cases are
abundant, complex, and have been intensely litigated.” (ECF No. 1399,
PageID.54410.) That statement remains true, including the litigation
that led to the LAN Settlement. Here, there has been extensive discovery,
managed by the Court, in addition to a months-long bellwether trial and
the extensive motion practice that comes with such a proceeding. The
Court is “very familiar with the factual allegations and the applicable law
that governs these cases.” (ECF No. 1399, PageID.54409 (emphasis
added).) Because the Court has recounted the history of this litigation in
multiple opinions and orders, it will only do so here insofar as it is
necessary.
Earlier in this litigation, the Court appointed two mediators—
former Wayne County Circuit Court Judge Pamela Harwood and former
U.S. Senator Carl Levin—to conduct settlement discussions. (ECF No.

Those who are members of any class have the additional choice to opt out of
the LAN Settlement entirely and proceed with their individual litigation against the
LAN Defendants.
4

4

324, PageID.11687–11693.) Pursuant to Federal Rule of Civil Procedure
53, the Court appointed Deborah E. Greenspan to serve as a Special
Master, now referred to as a Court-Appointed Neutral, in part to assist
with settlement. (ECF No. 544.) Additionally, the Court appointed
Subclass Settlement Counsel to represent six subclasses of Plaintiffs in
settlement allocation negotiations. (ECF No. 937.)
In 2018, following the appointment of the mediators, the Parties to
the LAN Settlement “participated in extensive, arms-length negotiations
involving in-person meetings as well as multiple one-on-one sessions
with the Mediators and/or Special Master for two years, which ultimately
did not result in settlement.” (ECF No. 2673, PageID.86962.) In 2021, the
Court approved a partial settlement, which did not include LAN. The
Court also certified an Issues Class action, which included LAN as a
Defendant. Individual Plaintiffs have already gone to trial against LAN
in a bellwether trial, which ended in a mistrial.
The Parties to this agreement paused negotiations during the
bellwether trial in 2022, restarted them after that trial concluded, and
reached a tentative settlement in July 2023. The negotiations, assisted
by Deborah Greenspan, involved “hundreds of discussions.” (ECF No.
5

2673-7, PageID.87128.) During those discussions, the LAN Defendants
“provided access to their senior management and to financial
statements.” (Id.) An independent expert, engaged by the CourtAppointed Neutral, examined LAN’s financial statements and enabled
Plaintiffs to confirm that the Settlement amount is consistent with
“LAN’s ability to allocate funds to this settlement while maintaining
company operations.” (Id. at PageID.87129.) In addition, Settlement
Subclass Counsel took part in negotiating the allocation of the funds
between the Subclasses, as well as evaluating the LAN Settlement more
generally. (ECF Nos. 2673-3, 2673-4, 2673-5).
II.

The Proposed Settlement Agreement

The LSA builds on the ASA, mainly by adding more money to the
funds created by the prior settlement and by resolving claims against
LAN. It contributes $8 million to the Qualified Settlement Fund
monitored by the Court, which was established to provide direct
payments to Flint residents. The LSA adopts the ASA’s process and
criteria for categorizing types of compensation for all individuals—both
Individual Plaintiffs and Class Plaintiffs.

6

The LAN Settlement splits the $8 million evenly between
Individual and Class Plaintiffs. The Class portion of the LAN
Settlement—minus attorney fees and costs—is divided between the three
subclasses, such that 9% goes to the Adult Injury Subclass, 90% goes to
the Property Damage Subclass, and 1% goes to the Business Economic
Loss Sub-Qualified Settlement Fund. The portion allocated to Individual
Plaintiffs will be distributed in accordance with allocation set forth in the
ASA.5 (ECF No. 2673, PageID.86967.)
III. The Proposed Settlement Class
Plaintiffs seek preliminary approval for the LAN Settlement. That
requires preliminary and conditional certification of the Settlement
Class, which Plaintiffs characterize as identical to the ASA Settlement
Class and Subclasses but “extended to encompass claims against LAN.”
(Id. at PageID.86979.) As Plaintiffs point out, the Court has already
certified a Settlement Class with this structure, in addition to finding

In this Settlement, “there shall be no allocation to the Future Minor SubQualified Settlement Fund or Programmatic Relief Sub-Qualified Settlement Fund
established by the ASA, see ASA Arts. VI, VII; LSA ¶ 6.1. The percentage allocations
amongst Individual Plaintiffs shall be adjusted to account for the elimination of the
2% allocation to the Programmatic Fund.” (ECF No. 2673, PageID.86967.)
5

7

common questions of law and fact sufficient to certify an Issues Class. In
re Flint Water Cases, 558 F. Supp. 3d 459 (E.D. Mich. 2021).
The LAN Settlement Class and Subclasses are defined as follows:
Settlement Class: all persons or entities who are or could be
claiming personal injury, property damage, business
economic loss, unjust enrichment, breach of contract, or
seeking any other type of damage or relief because at any time
during the Exposure Period[, April 25, 2014 through
November 16, 2020,] they: (1) were an Adult who owned or
lived in a residence that received water from the Flint Water
Treatment Plant or were legally liable for the payment of such
water; (2) owned or operated a business including income
earning real property and any other businesses, that received
water from the Flint Water Treatment Plant or were legally
liable for the payment for such water; or (3) were an Adult
during the Exposure Period and who ingested or came into
contact with water received from the Flint Water Treatment
Plant.
Excluded from the Settlement Class are: (1) Defendants; (2)
the judicial officers to whom this case is assigned in the
Federal Court, Genesee County Circuit Court, and Court of
Claims, their staff, and the members of their immediate
families; (3) all Individual Plaintiffs; and (4) all persons who
timely and validly elect to opt-out of the Settlement Class.
Adult Exposure Subclass: all persons who were Adults
during the Exposure Period and who ingested or came into
contact with water received from the Flint Water Treatment
Plant at any time during the Exposure Period and who are
claiming or could claim a resulting personal injury. All Adults
8

listed on Exhibit 1 to the [ASA] are excluded from this
Subclass.
Business Economic Loss Subclass: all individuals or
entities who owned or operated a business, including income
earning real property and any other businesses, that received
water from the Flint Water Treatment Plant at any time
during the Exposure Period and who are claiming or could
claim a resulting business economic loss. Excluded from the
Business Economic Loss Subclass are all local, state, or
federal government offices or entities and any individual or
entity listed on Exhibit 1 to the [ASA].
Property Damage Subclass: all Adults or entities who
owned or were the lessee of residential real property that
received water from the Flint Water Treatment Plant, or were
legally liable for the payment for such water, at any time
during the Exposure Period. Excluded from the Property
Damage Subclass are all local, state, or federal government
entities which own real property and any individual or entity
listed on Exhibit 1 to the [ASA].
In re Flint Water Cases, 571 F. Supp. 3d 746, 822 (E.D. Mich. 2021); (ECF
No. 2673-2, PageID.87003 (“LAN consents to the certification of the
Settlement Class defined consistently with the Settlement Class set forth
in the ASA and the Orders approving the ASA.”).). Claimants who
registered and made claims under the ASA are not required to
supplement their claims to be considered for compensation under the
LSA. Those who did not participate in the previous settlement may
register and submit claims to this one. Both Individual Plaintiffs and
9

Settlement Class members can exclude themselves from the LAN
Settlement if they wish.
Prior to approving a settlement that includes a class component,
the Court must conditionally certify the class. Fed. R. Civ. P. 23(e); see
Garner Props. & Mgmt., LLC v. City of Inkster, 333 F.R.D. 614, 621–22
(E.D. Mich. 2020). Though still subject to the Court’s final approval later,
preliminary certification indicates that, at this stage, certification is
sufficiently likely to justify sending notice to settlement class members.
See id.
At the preliminary certification stage, the judge makes “a
preliminary fairness evaluation [finding] that the proposed class satisfies
the criteria set out in Rule 23(a) and at least one of the subsections of
Rule 23(b) ... [as well as] a preliminary determination on the fairness,
reasonableness, and adequacy of the settlement terms [under Rule
23(e)].” In re Flint Water Cases, 499 F. Supp. 3d at 419 (citing Manual for
Complex Litigation (Fourth) § 21.632 (2004)).
Rule 23(a) requires the following for class certification:
(1) [numerosity,] the class is so numerous that joinder of all
members is impracticable;

10

(2) [commonality,] there are questions of law or fact common
to the class;
(3) [typicality,] the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and
(4) [adequacy,] the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
Under Rule 23(b)(3), Plaintiffs must also show “predominance” and
“superiority.” Predominance requires that “questions of law or fact
common to class members predominate over any questions affecting only
individual members.” Fed. R. Civ. P. 23(b)(3). Superiority requires that
“a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Id. Under that rule, the Court
must consider:
(A) the class members’ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.

11

For the reasons set forth below, the Court finds that the parties
have preliminarily met the Rule 23 requirements for certification of the
LAN Settlement Class. The Court also preliminarily finds that the
settlement is fair, reasonable, and adequate. Accordingly, the Court
conditionally certifies this class for the purposes of settlement and directs
notice of the certification, proposed settlement, and date of the final
fairness hearing.
A. Rule 23(a)
To satisfy Rule 23(a), the Settlement Class must meet the
requirements of numerosity, commonality, typicality, and adequacy.
i. Numerosity
The numerosity requirement means that Plaintiffs must show that
the Settlement Class is “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a). There are “no strict numerical test[s]
for determining impracticability of joinder.” In re Am. Med. Sys., Inc., 75
F.3d 1069, 1079 (6th Cir. 1996). Rather, numerosity requires a casespecific inquiry, which can usually be satisfied by sufficiently high
numbers. Id.

12

Here, the LAN Settlement Class comprises “a substantial portion
of the population of Flint, Michigan,” a city with many thousands of
people, as well potentially hundreds of businesses. In re Flint Water
Cases, 499 F. Supp. 3d at 420–21. Those numbers dwarf the number of
prospective class members that courts have found sufficient for
numerosity. Id. (citing cases certifying classes with between 21 and 40 or
40 or more members). Accordingly, Rule 23(a)’s numerosity requirement
is met.
ii. Commonality
Rule 23(a) also requires commonality, meaning there are “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a). This
provision means that there must be at least one question common to the
class, “the resolution of which will advance the litigation.” Sprague v.
Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998).
The Court has already certified an Issues Class, holding that
commonality is satisfied with respect to Plaintiffs’ claims against LAN.
In re Flint Water Cases, 558 F. Supp. 3d at 504 (“Class Plaintiffs’
professional negligence claim related to duty, breach, and causation, as
well as many of the underlying factual questions identified by Class
13

Plaintiffs, could fairly generate a ‘common answer relat[ing] to the actual
theory of liability in the case.’” (citing Rikos v. Procter & Gamble Co., 799
F.3d 497, 505 (6th Cir. 2015))). The issues certified for trial, which the
Court has found are common to the LAN Class are as follows:
Issue 1: Did [. . .] LAN breach their duty of care?
Issue 2: If [. . .] LAN[] breached its duty of care owed to class
members, did that breach contribute to causing or prolonging
contaminated water in the Flint water distribution system?
Issue 3: Were the contaminated water conditions capable of
causing harm to Flint residents, properties, property and
businesses?
Issue 4: Were the harmful water conditions in the Flint water
distribution system a natural and probable result of [. . .]
LAN’s breach?
Issue 5: Did any non-party contribute to causing or prolonging
the contaminated water conditions in the Flint water
distribution system? If so, what percentage of fault do you
attribute to each party and non-party?
(ECF No. 2250, PageID.73963.) As the Court explained when certifying
the Issues Class, the theory of liability here involves professional
negligence, so answering questions about duty, breach, causation, and
fault will advance the litigation. In re Flint Water Cases, 558 F. Supp. 3d
at 503. Accordingly, commonality is satisfied.
iii. Typicality
14

The typicality requirement of Rule 23(a) demands that “the claims
or defenses of the representative parties are typical of the claims or
defenses of the class.” Fed. R. Civ. P. 23(a). A claim is “typical” if “it arises
from the same event or practice or course of conduct that gives rise to the
claims of other class members, and if his or her claims are based on the
same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir.
2007). At the Issues Class certification stage, the Court considered the
various Class and Subclass Representatives and found that their
allegations about injuries suffered due to the Defendants’ actions
“aligned with claims of absent class members” who claim injury as a
result of exposure during the same period due to the same conduct. In re
Flint Water Cases, 558 F. Supp. 3d at 504–06. As the Court put it
previously:
[T]he Adult Exposure Subclass Representatives—Rhonda
Kelso, Barbara and Darrell Davis, Tiantha Williams, and
Michael Snyder—are individuals or representatives of
individuals who allege that they resided in Flint, Michigan;
ingested or came into contact with Flint tap water during the
relevant time period; and suffered medical, financial, and/or
emotional damages as a result of Settling Defendants’ actions.
(See ECF No. 1318, PageID.40304–40305.) These claims align
with absent Adult Exposure Subclass members who “ingested
or came into contact with water received from the Flint Water
Treatment Plant at any time during the Exposure Period and
15

who are claiming or could claim a resulting personal injury.”
(ECF No. 1319-1, PageID.40335–40336 (as amended, ECF No.
1394-2, PageID.54127–54128).)
The Property Damages Subclass Representatives—Elnora
Carthan and David Munoz—are individuals who allege that
they owned homes in Flint during the relevant time period,
who received water from the Flint Treatment Water Plant,
and who suffered diminished property and appliance values
as a result of Settling Defendants’ actions. (See ECF No. 1318,
PageID.40305–40306.) These claims align with absent
Property Damages Subclass members who “owned or were the
lessee of a residential real property that received water from
the Flint Water Treatment Plant, or were legally liable for the
payment for such water, at any time during the Exposure
Period.” (ECF No. 1319-1, PageID.40341 (as amended, ECF
No. 1394-2, PageID.54133).)
Finally,
the
Business
Economic
Loss
Subclass
Representatives—635 South Saginaw LLC (a/k/a “Cork on
Saginaw”), Frances Gilcreast, and Neil Helmkay—are all
individuals or entities who allege that they owned at least one
commercial property in Flint during the relevant period, and
who suffered diminished profits due to commercial reticence
to patronize Flint businesses as a result of Settling
Defendants’ actions. (ECF No. 1318, PageID.40306.) These
claims align with absent Business Economic Loss Subclass
members who “owned or operated a business, including
income earning real property and any other businesses, that
received water from the Flint Water Treatment Plant at any
time during the Exposure Period and who are claiming or
could claim a resulting business economic loss.” (ECF No.
1319-1, PageID.40336 (as amended, ECF No. 1394-2,
PageID.54128).)
16

In re Flint Water Cases, 499 F. Supp. 3d at 422–23. With respect to LAN,
these Class Representatives put forward claims against LAN that relate
to the same allegations of professional negligence relied upon by the rest
of the Class in asserting damages to their person and property. In
addition, that theory of liability is based on the same alleged events and
course of conduct. Accordingly, typicality is met here.
iv. Adequacy
Rule 23(a) also requires that adequacy be met, meaning “the
representative parties will fairly and adequately protect the interests of
the class.” Fed. R. Civ. P. 23(a). “There are two criteria for determining
whether the representation of the class will be adequate: 1) the
representative must have common interests with unnamed members of
the class, and 2) it must appear that the representatives will vigorously
prosecute the interests of the class through qualified counsel.” Senter v.
Gen. Motors Corp., 532 F.2d 511, 524–25 (6th Cir. 1976). “Thus, the
linchpin of the adequacy requirement is the alignment of interests and
incentives between the representative plaintiffs and the rest of the class.”
Garner Props. & Mgmt., LLC, 333 F.R.D. at 624 (quoting In re Dry Max
Pampers Litig., 724 F.3d 713, 721 (6th Cir. 2013)).
17

Here, the first adequacy requirement is met, insofar as Plaintiffs
seek to hold LAN accountable for their conduct. (ECF No. 1175-3,
PageID.28783–28787.) The second one is met here, as well. At the time
the Court preliminarily approved the ASA, the Court explained its deep
familiarity with “the parties, class representatives, and Co-Lead Class
Counsel and Subclass Settlement Counsel” from what was then four
years of litigation. In re Flint Water Cases, 499 F. Supp. 3d at 423. Well
over two years have passed since that Opinion. The Court is even more
familiar with the Parties, their lawyers, and the facts of the case now.
The Court is confident that they will continue to “vigorously prosecute
the interests of the class” as this litigation proceeds. Id. Accordingly,
adequacy has been met and the Settlement Class has preliminarily met
all the requirements of Rule 23(a).
B. Rule 23(b)
To satisfy Rule 23(b)(3), Plaintiffs must meet its predominance,
superiority, and ascertainability requirements.
i. Predominance
The predominance requirement states that the Court must find
that “the questions of law or fact common to class members predominate
18

over any questions affecting only individual members.” Fed. R. Civ. P.
23(b)(3). Predominance requires Plaintiffs to show that “issues subject to
generalized proof and applicable to the class as a whole predominate over
those issues that are subject to only individualized proof.” Randleman v.
Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352–53 (6th Cir. 2011). This
putative class is being put forward for the purposes of settlement,
however, which “obviates” the evidentiary difficulties the predominance
inquiry considers and often inclines courts to find that predominance is
met. In re Flint Water Cases, 499 F. Supp. 3d at 424 (citing Good v. W.
Va. Am. Water Co., No. 14-1374, 2017 WL 2884535, at *12 (S.D. W. Va.
Jul. 6, 2017)). Moreover, in mass tort cases like this one involving a single
common event, where individualized damages questions are present, but
liability is subject to common resolution, it is possible to satisfy the
predominance requirement. Id. (collecting cases). Here, the issues the
Court has certified related to LAN “are subject to generalized proof and
applicable to the whole class.” Randleman, 646 F.3d at 352–53.
Accordingly, predominance is satisfied.
ii. Superiority

19

The superiority requirement demands that “a class action is
superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3). To evaluate whether this
requirement is met, the following factors are relevant:
(A) the class members’ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
Here, as with the ASA, these factors weigh in favor of finding that
superiority is satisfied. Regarding that settlement, the Court applied the
first factor as follows:
[T]he class members’ interest in individually controlling the
litigation weighs in favor of conditional class certification,
because individuals seeking individualized relief either
already chose to file their own complaints or hire individual
counsel to address their claims—as evidenced by the
Individual Cases—or may eventually seek exclusion from the
settlement class. Nor, after [. . .] years of very expensive class
discovery, would individualized litigation be economically
preferable for those plaintiffs who have not already elected to
file suit as individuals. See In re Whirlpool, 722 F.3d at 861
20

(“Use of the class method is warranted particularly [when] the
cost of litigation would dwarf any potential recovery.”).
In re Flint Water Cases, 499 F. Supp. 3d at 425. All of that is also true of
the LAN Settlement Class.
Further, the second factor, the extent and nature of class members’
litigation, favors certification. The parties have been litigating this case
for seven years. The consolidated case docket reflects that with its well
over 2,600 entries. Local and national firms have “zealously litigated”
this case throughout its history. Id. As far as the nature of this litigation,
class certification in mass tort cases like this one avoids the costs of
“piecemeal litigation” by dealing with many claims at once. Ortiz v.
Fibreboard Corp., 527 U.S. 815 (1999).
Third, this forum is ideal for resolving this dispute, because all
federal litigation in the Flint Water Cases has already been centralized
in the Eastern District of Michigan. The significance of these three
factors far outweighs any difficulties in managing a class action here,
particularly given that this class is being proposed for settlement.
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted
with a request for settlement-only class certification, a district court need
not inquire whether the case, if tried, would present intractable
21

management problems.”). Accordingly, the superiority requirement is
met.
iii. Ascertainability
In the Sixth Circuit, “Rule 23(b)(3) classes must also meet an
implied ascertainability requirement.” Sandusky Wellness Ctr., LLC v.
ASD Specialty Healthcare, Inc., 863 F.3d 460, 466 (6th Cir. 2017). Under
that requirement, “[b]efore a court may certify a class pursuant to Rule
23, the class definition must be sufficiently definite so that it is
administratively feasible for the court to determine whether a particular
individual is a member of the proposed class.” Young v. Nationwide Mut.
Ins. Co., 693 F.3d 532, 537–38 (6th Cir. 2012) (internal citations
removed). Regarding the ASA, the Court noted:
Plaintiffs have argued in other motions that “[m]embership in
the Class and Subclasses is ascertainable through property or
rental records, or through certification by Flint residents or
guardians that they and/or their children lived in Flint and
were exposed to the water during the Class Period.” (ECF No.
1207, PageID.34471.) The class definitions in this case are
geographically circumscribed to one city in one state and are
based on objective criteria, such as where an individual
resided at a particular time or whether they owned or rented
property.

22

In re Flint Water Cases, 499 F. Supp. 3d at 426. Such objective criteria
are sufficient to realize the purposes of the ascertainability requirement:
“notify[ing] absent class members and [. . .] allow[ing] those members a
chance to opt-out and avoid the potential collateral estoppel effects of a
final judgment.” Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir.
2016). Accordingly, Plaintiffs have met the ascertainability requirement
and have shown that the Court will likely be able to “certify the class for
purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B)(ii).
C. The Fairness, Reasonableness, and Adequacy of the
Settlement under Rule 23(e)
Under Rule 23(e), the Court must not only find that it will likely be
able to certify the class, but also that it will likely be able to approve the
proposal as fair, reasonable, and adequate, as is required by Rule 23(e)(2)
for final approval. Fed. R. Civ. P. 23(e)(1)(B)(i). To assess the fairness,
reasonableness, and adequacy of the settlement, the Court considers
whether:
(A) the class representatives 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 [. . . ;]
23

(D) the proposal treats class members equitably relative to
each other.
Fed. R. Civ. P. 23(e)(2). Factors (A) and (B) relate to procedural fairness,
while (C) and (D) relate to substantive fairness. 4 Newberg and
Rubenstein on Class Actions § 13:13 (6th ed. 2023). The Sixth Circuit also
provides the International Union factors to guide this inquiry:
(1) the risk of fraud or collusion; (2) the complexity, expense
and likely duration of the litigation; (3) the amount of
discovery engaged in by the parties; (4) the likelihood of
success on the merits; (5) the opinions of class counsel and
class representatives; (6) the reaction of absent class
members; and (7) the public interest.
Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am.
v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007).
i. Factors (A) and (B)
For the Court to find that it is likely that the proposed LAN
Settlement is procedurally fair, the Court must consider whether the
Class Representatives and Class Counsel have adequately represented
the Class and whether the proposal was negotiated at arm’s length. Fed.
R. Civ. P. 23(e).
In considering the adequacy of Class Representatives and Class
Counsels’ representation, the Court finds that there is not “a risk of fraud
24

or collusion” in the LSA, which is the first International Union factor. See
Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am.,
497 F.3d at 631. This case has been strenuously litigated for over seven
years. Further, after extensive discovery, briefing, and a bellwether trial,
Class Counsel and Class Representatives’ support for this settlement
weighs in its favor, given their deep knowledge of this litigation. Id.
Subclass Counsels’ support weighs in its favor, as well. (ECF Nos. 26733, 2673-4, 2673-5). The extensive discovery in this case, which must be
considered under the third International Union factor, also weighs in
favor of approval. Int’l Union, United Auto., Aerospace, & Agr. Implement
Workers of Am., 497 F.3d at 631.
Additionally, the parties negotiated the LSA at arm’s length. As set
forth above, two neutral mediators and the Court-Appointed Neutral
supervised the negotiations that led to the formation of this proposal,
which supports finding that this settlement is the product of an arm’slength negotiation that is free of collusion. Hainey v. Parrott, 617 F. Supp.
2d 668, 673 (S.D. Ohio 2007).
ii. Factor (C)

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To evaluate the proposed settlement’s substantive fairness, the
Court must consider the adequacy of the relief provided to the Class,
including:
(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 classmember 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).
Fed. R. Civ. P. 23(e)(2)(C). Here, the LAN Settlement adds $8 million to
the fund already established by the ASA.
As far as the costs, risks, and delay of trial and appeal, this
litigation is certainly “complex and risky,” featuring “unsettled area[s] of
law” and “novel questions,” all of which favors a finding of substantive
adequacy. In re Sonic Corp. Customer Data Sec. Breach Litig., Case No.
1:17-md-2807, 2019 WL 3773737, at *7 (N.D. Ohio Aug. 12, 2019); see
also Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of
Am., 497 F.3d at 631 (indicating the relevance of the “complexity, expense
and likely duration of the litigation” for evaluating a settlement, the
second International Union factor). Not only that, but a trial here would
26

be lengthy and require “complex scientific proof,” which further supports
settlement. Olden v. Gardner, 249 F. App’x 210, 217 (6th Cir. 2008).
Those litigation risks must be weighed against the $8 million recovery
this proposed settlement provides. The LSA would also streamline future
litigation in the Flint Water Cases, insofar as Plaintiffs would proceed
against only against VNA and the Environmental Protection Agency.
In addition, the ASA avoids a situation where LAN is unable to
satisfy a judgment greater than what is included in the LSA. Plaintiffs
rightly consider the financial condition of defendants when evaluating
whether to settle and how much to settle for; otherwise, they risk a
“pyrrhic victory” where the defendant cannot satisfy a judgment. See Int’l
Union, United Auto., Aerospace, & Agr. Implement Workers of Am., 497
F.3d at 632. It counts in favor of a settlement’s adequacy if the defendant
would not be able to withstand a greater judgment than what is included
in the settlement, particularly when there is financial information that
supports that limitation. In re Prudential Ins. Co. Am. Sales Prac. Litig.
Agent Actions, 148 F.3d 283, 321–22 (3d Cir. 1998). Here, Class Counsel,
Liaison Counsel, and an independent expert considered evidence
supplied by LAN regarding their “inability to pay a greater amount [than
27

the proposed settlement] upon further litigation and an adverse
judgment.” (ECF No. 2673, PageID.86976.)
The Court has already considered “the effectiveness of any proposed
method of distributing relief to the class, including the method of
processing class-member claims” in its final approval of the ASA. Fed. R.
Civ. P. 23(e)(2)(C)(ii). The Court found that the ASA’s “efficient and
timely methods” of distribution favored finding them to be adequate, and
those same methods will be utilized for the LAN Settlement. In re Flint
Water Cases, 571 F. Supp. 3d at 781.
Under the LSA, attorney fees will be paid from the Settlement
Funds subject to the Court’s approval. Plaintiffs’ counsel will file the
motion requesting such fees in time for Class Members to consider
Counsels’ request as they choose whether to opt out or object to the LSA.
The timing of the request for attorney fees does not raise concerns,
insofar as there is no risk of an attorney fee request that might “upset
the compensation to claimants at the time of final approval.” In re Flint
Water Cases, 571 F. Supp. 3d at 782.
The only agreement that Class Counsel disclosed under Rule
23(e)(3) is an extension of their agreement “from the State & Local
28

Government Settlement regarding the amount of attorneys’ fees they
intend to request from the Settlement, including the extent to which
common-benefit fees will be requested as well as a manner for allocating
fees among Plaintiffs’ attorneys.” (ECF No. 2673, PageID.86973 n.21.)
There do not appear to be any worrisome side-agreements influencing the
LSA here. Accordingly, these factors favor preliminary approval.
iii. Factor (D)
Finally, the Court must consider whether “the proposal treats class
members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). The
Advisory Committee Notes to the 2018 amendment codifying this factor
state that “[m]atters of concern [with respect to this factor] could include
whether the apportionment of relief among class members takes
appropriate account of differences among their claims, and whether the
scope of the release may affect class members in different ways that bear
on the apportionment of relief.” Fed. R. Civ. P. 23(e) advisory committee
note to 2018 amendment. Again, the Court has already considered the
ASA, which establishes that “Claimants will receive awards based on the
extent of their injuries and in some cases based on the proof of injury they
are able to provide.” (ECF No. 2673, PageID.86978.) That apportionment,
29

which the LSA adopts, provides for “horizontal equity” between
claimants and treats claimants the same regardless of whether they are
represented by their own lawyers or are part of the LAN Settlement
Class. In re Flint Water Cases, 571 F. Supp. 3d at 782. The specific Plan
of Allocation here is also equitable. It balances the interests of eligible
participants based on information gleaned from the ongoing claims
process from the ASA, in addition to arm’s-length negotiation between
counsel with the guidance of the Court-Appointed Neutral. (ECF No.
2673, PageID.86982–86983.)
iv. Remaining International Union Factors
The Court has already considered several of the International
Union factors ((1) the risk of fraud or collusion; (2) the complexity,
expense, and likely duration of the litigation; (3) the amount of discovery
engaged in by the parties), which overlap with the factors enumerated in
the Federal Rules of Civil Procedure. The following factors remain: “4)
the likelihood of success on the merits; (5) the opinions of class counsel
and class representatives; (6) the reaction of absent class members; and
(7) the public interest.” Int’l Union, United Auto., Aerospace, & Agr.
Implement Workers of Am., 497 F.3d at 631.
30

To consider “the likelihood of success on the merits,” the Court
must—without deciding the merits of the case—weigh Plaintiffs’
likelihood of prevailing against the relief offered in the settlement. Id. As
the Court has explained, here there “are no other cases that the Court or
the parties can look to that are on all fours with the claims in this
litigation to assist them in predicting the outcome.” In re Flint Water
Cases, 571 F. Supp. 3d at 779. In this case, the only trial to date resulted
in a mistrial. Litigation of the Issues Class against LAN will involve
complex and novel legal issues and is likely to require substantial time
and money. After that, individuals will incur the considerable costs of
repeated trials involving individualized damages. Like the ASA, the LAN
Settlement is “a fair and sensible resolution” given the risks of continuing
to litigate. Id.
Further, Class Counsel and the Class Representatives support this
Settlement, which weighs in favor of approval. IUE-CWA v. Gen. Motors
Corp., 238 F.R.D. 583, 598 (E.D. Mich. 2006) (“The judgment of the
parties’ counsel that the settlement is in the best interest of the settling
parties is entitled to significant weight, and supports the fairness of the
class settlement.” (internal citations omitted)). They have undertaken
31

expansive discovery over seven years, engaged in extensive briefing, and
have a deep understanding of the law and facts involved in this case.
Finally, the Court must consider the public interest, which supports
the settlement of class action lawsuits, in part to conserve judicial
resources. In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D.
Mich. 2003). The LSA will also provide further relief to Plaintiffs. The
public interest therefore supports approval of the LAN Settlement.
Accordingly, the provisions of Rule 23 and the International Union
factors weigh in favor of the LSA as likely to be approved as fair,
reasonable, and adequate. Fed. R. Civ. P. 23(e).
IV.

Notice Approval

When requesting class certification for purposes of settlement,
parties must “provide the court with information sufficient to enable it to
determine whether to give notice of the proposal to the class.” Fed. R. Civ.
P. 23(e)(1)(A). Additionally, for any class certified under Rule 23(b)(3),
“the court must direct to class members 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).
Such notice must include: (i) the nature of the action; (ii) the definition of
32

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).
The Court has examined Plaintiffs’ plan for Class Notice, including
the Claim Form, as well as the declaration of Eric Schachter, Senior Vice
President with A.B. Data, the class action administration company
Plaintiffs have retained to provide Notice, subject to the Court’s approval.
(ECF No. 2673-6.)
Here, the Notice describes the nature of the action, defines the
Class, and refers to the professional negligence claims at issue in the
case. (ECF No. 2673-6, PageID.87061, 87064.) The Notice also provides
information about the availability of exclusion and how to opt out of the
Settlement. (Id. at PageID.87067–87068.) It further explains how to
make an appearance through an attorney and the binding effect of a
judgment on Class members. (Id. at PageID.87069–87070.)

33

The Court finds that the LSA’s plan for Class Notice is the best
notice

practicable

under

the

circumstances

and

satisfies

the

requirements of due process and Rule 23(e)(1). That plan is approved and
adopted. The Court further finds that the Class Notice (attached to
Plaintiffs’ motion as Exhibit E, Attachment 2), and the Claim Form
included as part of the Class Notice, comply with Rules 23(e)(1) and
23(c)(2)(B).
Accordingly, for the reasons set forth above, the Court conditionally
and preliminarily certifies the class for settlement purposes subject to
final approval and approves the prospective plan for class notice.
V.

Minors and Legal Incapacitated and Incompetent
Individuals

The LAN Settlement continues the procedures and protections for
Minors and Legal Incapacitated and Incompetent Individuals (“LIIs”)
established in the ASA. As required by Michigan Court Rule 2.420,
settlements involving Minors or LIIs must receive court approval as fair.
Mich. Ct. R. 2.420.
The Court has already found that those procedures and protections
are “fair and in the best interests of Minors and LIIs.” In re Flint Water
34

Cases, 499 F. Supp. 3d at 413. In the process of approving the ASA, the
Court detailed the roles of the Genesee County Circuit Court, appointed
Next Friends, and Guardians Ad Litem, and approved the process for
registration and review of claims. That process is structured to comply
with Michigan Court Rule 2.201—specifically to ensure that a Minor or
LII has an appropriate representative. The Court also considered the
fairness of the methods for categorizing Minors and LIIs’ claims,
notifying them about releases of claims, and enabling reconsideration
and appeals of the Claims Administrators’ claims determinations. It also
evaluated the ASA’s options for distributing monetary awards to Minors
and LIIs, finding that the processes the ASA established were “fair and
in the best interests of Minors and LIIs.” In re Flint Water Cases, 499 F.
Supp. 3d at 418. Claimants who have already availed themselves of this
process will not have to take any “other procedural steps relating to next
friends or guardians ad litem to the extent that prior motions filed to
implement the ASA are adequate to implement this settlement.” (ECF
No. 2673, PageID.86984 n.35.) Because the LSA does not depart from the
previously approved ASA when it comes to Minors and LII, the Court

35

holds that the LAN Settlement is fair and in the best interests of Minors
and LIIs.
VI.

Order

Having read and considered the Motion for Preliminary Approval
of Class Settlement with LAN, as well as the papers submitted to the
Court in support of the Motion, for the reasons set forth above, the Court
orders:
1. The LSA is preliminarily approved under Federal Rule of Civil
Procedure 23 as within the range of possible final approval.
2. The Settlement Allocation and plan of distribution are preliminarily
approved.
3. Cohen Milstein Sellers & Toll PLLC, Pitt McGehee Palmer Bonanni &
Rivers, PC, and the Executive Committee are appointed as Class Counsel
under Federal Rule of Civil Procedure 23(g) to represent the LAN
Settlement Class and Subclasses.
4. The Settlement Class and Subclasses certified in the ASA that was
approved by this Court on November 10, 2021, are conditionally re36

certified under Federal Rule of Civil Procedure 23(a), (b)(3), and (e) for
purposes of the LAN Settlement.
5. The following individuals are re-appointed as Class Representatives
for purposes of the LAN Settlement:
a. Rhonda Kelso, Barbara and Darrell Davis, Tiantha Williams, and
Michael Snyder as personal representative of the Estate of John
Snyder, as representatives of the Adult Exposure Subclass;
b. Elnora Carthan and David Munoz as representatives of the
Property Damage Subclass; and
c. 635 South Saginaw LLC, Frances Gilcreast, and Neil Helmkay as
representatives of the Business Economic Loss Subclass.
6. The following individuals are re-appointed as Settlement Subclass
Counsel for purposes of the LAN Settlement:
a. Vincent J. Ward of The Ward Law Firm as counsel for the Adult
Exposure Settlement Subclass;
b. Sarah R. London of Lieff Cabraser Heimann & Bernstein, LLP
as counsel for the Property Damage Settlement Subclass; and

37

c. Dennis C. Reich of Reich & Binstock, LLP as counsel for the
Business Economic Loss Settlement Subclass.
7. The plan of notice presented in the Declaration in Support of Plaintiffs’
Motion is approved. The form of notice attached as Exhibit E, Attachment
2, and the Registration and Claim Forms in the form attached as Exhibits
2 and 5 to the Amended Settlement Agreement (“ASA”) are re-approved.
The Notice, Registration Form, and Claim Form shall be disseminated to
the LAN Settlement Class in accordance with the plan of notice and the
LAN Settlement Agreement.
8. A.B. Data, Ltd. shall serve as the Notice Administrator.
9. The procedures set forth in the ASA for handling claims by Minors and
Legally Incapacitated or Incompetent Individuals (LIIs) are re-approved
for the LAN Settlement.
10. The Fairness Hearing is set for March 14, 2024, 45 days after the
Motion for final approval is filed, and the following schedule is set:
Event
Settlement Website
Motion for Fees and
Expenses

Deadline
Updated following
this Order.
Filed within 30 days
of this Order.
38

Date
December 15, 2023

Notice Mailed
Deadline for
Registration Form &
Claim Form
Deadline to Request
Exclusion from
Settlement
Deadline for
Objections to
Settlement and Class
Member Notice of
Intent to Appear at
Fairness Hearing
Motion for Final
Approval
Fairness Hearing

Within 30 days of this
Order.
Must be postmarked
or submitted
electronically
within 60 days of this
Order.
Must be postmarked
or submitted
electronically
within 60 days of this
Order.
Must be filed within
60 days of this Order.

December 15, 2023

Filed within 75 days
of this Order.
March 14, 2024

January 29, 2024

January 16, 2024

January 16, 2024

January 16, 2024

VII. Conclusion
For the reasons set forth above, the Court grants Class Plaintiffs’
Motion for Preliminary Approval of Class Settlement with LAN
Defendants. (ECF No. 2673.)
IT IS SO ORDERED.
Dated: November 15, 2023
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

39

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 15, 2023.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

40