Bajguz et al v. 1 World Trade Center, LLC et al

Filing 53

ORDER AND OPINION APPROVING SETTLEMENTS IN 82 CASES re: (5859 in 1:21-mc-00102-AKH) MOTION to Approve Settlement and Legal Fees filed by Various plaintiffs represented by Cannata/Grochow. Plaintiffs' motion to approve the settlements is GRANTED. The Clerk shall mark the motion (Doc. No. 5859) terminated. The approved settlement results in the resolution of all the claims brought by 81 of the 82 settling plaintiffs. Accordingly, the Clerk shall dismiss with prejudice the Complaints of the 81 plaintiffs and close the cases listed in Exhibit A, attached hereto, subject to restoration by any party in the event settlement is not finalized. The sole remaining plaintiff, Antoni Lysomirski, has settled with most, but not all, defendants agains t whom he filed claims. The settling and non-settling defendants in Lysomirski's case are identified in Exhibit B, attached hereto. The Clerk shall dismiss with prejudice Lysomirski's Complaint against the settling defendants identified in Exhibit B, subject to restoration by any party in the event settlement is not finalized. Lysomirski shall file an Amended Complaint by June 30, 2015, consistent with this Order and Opinion, dropping the settling defendants from the caption and the allegations, but retaining the paragraph numbering of the existing Complaint. Defendants' Answers need not be amended. (Signed by Judge Alvin K. Hellerstein on 6/9/2015) Filed In Associated Cases: 1:21-mc-00102-AKH et al. (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE WORLD TRADE CENTER LOWER
MANHATTAN DISASTER SITE LITIGATION

ORDER AND OPINION
APPROVING SETTLEMENTS
IN82 CASES
21MC102 (AKH)

------------------------------------------------------------- x:
ALVIN K. HELLERSTEIN, U.S.D.J.:
The terrorist attacks of September 11, 2001 spawned one of the largest and most
complex: mass tort litigations in history. The final stage in this saga involves the claims of over
1,000 individuals who worked in the buildings surrounding the World Trade Center site and
allegedly developed various respiratory and gastrointestinal illnesses as a result of their work.
Many of these cases are now settling. See, e.g., In re World Trade Ctr. Lower Manhattan

Disaster Site Litig., 21MC102, 2015 WL 1262283 (S.D.N.Y. Mar. 18, 2015) (approving
settlements between 78 plaintiffs and 98 defendants). This Order deals with another 82
plaintiffs currently represented by the law firms of Gregory J. Cannata & Associates, LLP and
Robert A. Grochow, P.C. (the "Cannata Plaintiffs"). These 82 plaintiffs have reached a
settlement in principle with nearly all of the defendants against whom they brought claims, and
seek approval of the settlements and regulation of attorneys' fees. For the following reasons, the
Cannata Plaintiffs' motion for approval is granted.

I.

Background
I have previously provided the procedural history of this stage of the September

11th litigation. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 2015 WL
1262283. To reach their settlements, the Cannata Plaintiffs used an approach that was
functionally equivalent to that used to reach the settlement with the City of New York and its
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captive insurer (the "Captive Settlement") in the previous stage of the September 11th litigation.
I approved that settlement in June 2010 as fair and reasonable. See Order Approving Modified
and Improved Agreement of Settlement, 21-mc-100, ECF No. 2091 (S.D.N.Y. June 23, 2010).
More importantly, so did the parties. Over 99% of plaintiffs opted in to the settlement,
discharged the defendants, and discontinued their cases. Similarly, all remaining defendants who
contributed additional amounts in the end approved the settlement. The total compensation paid
to the plaintiffs was over $600 million.
In order to settle these 82 cases, the parties, with the help of Special Masters
Aaron Twerski and James Henderson, devised a comprehensive plan for valuing each plaintiffs
separate case, taking into consideration the severity of injuries incurred (measured by objective
manifestations), the conditions of individual buildings and the scope and scale of work
performed, and the number of plaintiffs and defendants associated with each building. The
parties then negotiated and agreed, again with substantial assistance from the Special Masters, to
aggregate amounts per building to be apportioned to the various plaintiffs who worked in the
building and to be paid by the various defendants associated with each building.
The specific allocations to individual plaintiffs are to be calculated according to a
"Settlement Plan," developed by the Cannata Plaintiffs. See Deel. Gregory J. Cannata Supp.
Mot. Approve Settlements ("Cannata Deel."), Exh. 2. The Settlement Plan awards points to
individual plaintiffs based upon the diagnosis of various alleged conditions, the severity of the
alleged conditions, and any documented treatment received. Each condition for which points are
awarded has been recognized by the National Institute for Occupational Safety and Health as
related to exposure to the World Trade Center dust. Adjustments to the points are made based
upon an individual plaintiffs' age, smoking history, death, lost earnings, participation in the

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Captive Settlement, time spent working in individual buildings, and other plaintiff-specific
information. The Garretson Resolution Group ("Garretson"), a neutral third-party consultant
experienced in mass tort settlements, and the neutral administrator appointed by the Court to
administer the Captive Settlement, has approved this methodology as "reasonable, objective, fair,
and efficient" reflecting the "best practices of modem allocation methodology within aggregate
settlements." See Cannata Deel., Exh. 3.
The Cannata Plaintiffs retained Garretson to calculate the points attributable to
each individual's medical and economic records. In addition, Ball Baker Leake LLP ("Ball
Baker"), an independent public accounting firm, has been retained to calculate the specific
amounts allocated to each plaintiff based upon the point system and the time individual plaintiffs
worked in each building. Ball Baker will also calculate the net amount to be paid to each of the
Cannata Plaintiffs, taking into account each plaintiffs share of the common expenses, casespecific expenses, and a 25% attorneys' fee.

II.

Discussion
A.

Settlement Methodology and Amount
As I have previously held, Courts confronted with mass tort cases have an

obligation to ensure the fairness of settlements entered into by the parties, in the aggregate and as
applied to individual plaintiffs. See In re World Trade Ctr. Lower Manhattan Disaster Site

Litig., 21 MC 102, 2015 WL 1262283 (S.D.N.Y. Mar. 18, 2015); In re World Trade Ctr.
Disaster Site Litig., No. 21 MC 100, ECF No. 2091 (S.D.N.Y. June 23, 2010); see also In re
Zyprexa Liability Litig., 424 F. Supp. 2d 488, 491-92 (E.D.N.Y. 2006). Accordingly, I ruled by
Order dated July 25, 2014 that all settlements in the 21 MC 102 docket would be subject to
review by this Court for fairness and reasonableness, similar to the methodology I used to review

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fairness and adequacy in the 21 MC 100 litigation. See Order Regulating Settlement Procedures
and Granting, in Part, Motion to Preserve Confidentiality of Settlements, No. 21 MC 102, ECF
No. 5340, at 1-2 (S.D.N.Y. July 25, 2014).
There is a "strong public policy" in favor of the settlement of complex litigation.

In re PaineWebber Ltd. P'ships Litig., 147 F.3d 132, 138 (2d Cir. 1998). Courts reviewing
settlement agreements consider two aspects for fairness: the process utilized in reaching the
settlement and the substantive terms of the settlement. See, e.g., Wal-Mart Stores, Inc. v. Visa

US.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005) ("A court determines a Settlement's fairness by
looking at both the settlement's terms and the negotiating process leading to settlement.").
Given the current litigation's similarity to complex class actions, the factors considered by courts
in deciding the fairness of class settlements provide a useful guide.
Courts consider several factors in determining the procedural fairness of a
settlement. The settlement should be the result of arm's length, hard-fought negotiations rather
than the collusion of otherwise adversarial parties. See McReynolds v. Richards-Cantave, 588
F.3d 790, 803-04 (2d Cir. 2009). Counsel conducting the negotiations should be experienced in
similar cases. See Charron v. Weiner, 731F.3d241, 247 (2d Cir. 2013). Furthermore,
settlement should come at a time when sufficient discovery has been conducted, enabling
counsel and the parties accurately to assess the strengths and weaknesses of their cases. See

D'Amato v. Deutsche Bank, 236 F.3d 78, 85-86 (2d Cir. 2001).
Once the proponent establishes that the settlement was reached as a result of a fair
process, there is a presumption that the terms of the settlement are also fair and reasonable. See

McReynolds, 588 F.3d at 803 ("We have recognized a presumption of fairness, reasonableness,
and adequacy as to the settlement where a class settlement [is] reached in arm's-length

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negotiations between experienced, capable counsel after meaningful discovery.") (internal
quotations omitted). Nonetheless, courts consider several aspects of the substantive terms of a
settlement for fairness. These considerations include the complexity, expense, and duration of
the litigation; the strengths and weaknesses of the plaintiffs' cases; the attendant risks of bringing
the case to trial; and the possible defenses of the defendants. See Charron, 731 F.3d at 247.
Settlement amounts should not be compared to a "possible recovery in the best of all possible
worlds." In re !max Secs. Litig., 283 F.R.D. 178, 191 (S.D.N.Y. 2013). Rather, "there is a range
of reasonableness with respect to a settlement-a range which recognizes the uncertainties of
law and fact in any particular case and the concomitant risks and costs necessarily inherent in
taking any litigation to completion." Wal-Mart Stores, Inc., 396 F.3d at 119.
After careful review of both the methodology used in reaching the settlements and
the aggregate settlement amount, I conclude that approval of the settlement is appropriate.
Gregory J. Cannata & Associates, LLP and Robert A. Grochow, P.C. are competent law firms
with considerable experience in mass tort litigations, including the 9/11 litigation since 2005.
Their negotiations with the defendants were adversarial, there is no evidence of collusion and
resolution came at a time when discovery was sufficiently advanced to permit the parties to fairly
evaluate the value of the lawsuits they filed. See In re Bear Stearns Cos. Secs. Derivative &
ERISA Litig., 909 F. Supp. 2d 259, 267 (S.D.N.Y. 2012) (finding settlement procedurally fair
where parties "conducted extensive investigations, obtained and reviewed millions of pages of
documents, and briefed and litigated a number of significant legal issues" because parties had the
ability to "gauge the strengths and weaknesses of their claims and the adequacy of the
settlement").

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Because the settlements are the result of a fair process, the consideration to be
paid is presumably also fair, adequate, and reasonable. See McReynolds, 588 F.3d at 803. But
presumptions are not needed to evaluate the fairness and adequacy of these settlements because
the amounts, on their own, are adequate and reasonable.
The aggregate settlement amount is $53,801,796.96. The payments to the
plaintiffs range from $25,000 to $1,453,089.72, according to the considerations discussed above.
The average settlement amount is $656, 119. The precise payment to each plaintiff is set out in a
schedule submitted by the Cannata and Grochow law firms and filed under seal.
These cases present difficult complexities regarding the conditions of the
workplaces, the safety protections extended, and the causal nexus between the ambient
atmosphere and the diseases complained of by the workers. Trial is likely to be risky, long, and
expensive, made longer and more complicated by the presence of numerous defendants. Further,
the settlement amounts here compare favorably with the Captive Settlement recorded in the 21
MC 100 cases. Accordingly, I find that the settlement terms are well within the "range of
reasonableness" reflective of the "uncertainties of law and fact" and the "concomitant risks and
costs" oflitigating the cases through trial. Wal-Mart Stores, Inc., 396 F.3d at 119. I therefore
approve the settlements and grant Plaintiffs' motion in that regard.
B.

Attorneys' Fees

Plaintiffs' counsel also seeks approval of a 25% fee after a deduction of common
and case-specific expenses. Counsel has reduced their request for fees, from the 33 1/3%
provided by their retainer agreements with their clients to 25%, the percentage fee I previously
approved in the Captive Settlement. Furthermore, counsel has shown themselves to be
competent and zealous advocates for their clients throughout the litigation and, particularly,

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during the Court-ordered settlement negotiations. Accordingly, I find a fee of 25% to be
reasonable and hereby approve it.

III.

Conclusion
Plaintiffs' motion to approve the settlements is GRANTED. The Clerk shall mark

the motion (Doc. No. 5859) terminated. The approved settlement results in the resolution of all
the claims brought by 81 of the 82 settling plaintiffs. Accordingly, the Clerk shall dismiss with
prejudice the Complaints of the 81 plaintiffs and close the cases listed in Exhibit A, attached
hereto, subject to restoration by any party in the event settlement is not finalized. The sole
remaining plaintiff, Antoni Lysomirski, has settled with most, but not all, defendants against
whom he filed claims. The settling and non-settling defendants in Lysomirski's case are
identified in Exhibit B, attached hereto. The Clerk shall dismiss with prejudice Lysomirski's
Complaint against the settling defendants identified in Exhibit B, subject to restoration by any
party in the event settlement is not finalized. Lysomirski shall file an Amended Complaint by
June 30, 2015, consistent with this Order and Opinion, dropping the settling defendants from the
caption and the allegations, but retaining the paragraph numbering of the existing Complaint.
Defendants' Answers need not be amended.

SO ORDERED.
Dated:

New York, New York
June 9, 2015

AL VIN K. HELLERSTEIN
United States District Judge

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Exhibit A

Plaintiffs Who Have Settled in
Principle With All Defendants

Index Number

06-cv-5335
Acosta, Ruben

08-cv-1334
10-cv-6926

Akoulov, Vladmir

10-cv-6860

Arce, Monica

06-cv-5323

Ayinde, Olanrewaju
Bajguz, Aleksander

10-cv-6867
06-cv-5338
06-cv-02528
07-cv-1566

Balcer, Waldemar

06-cv-5325

Bello, Jose

06-cv-5164

Campuzano, Joaquin

07-cv-1478

Cardenas, Carlos

09-cv-0681
10-cv-06907

Castro, Hector

07-cv-05342

Chapman, Robert
Checo, Manuel
Ciborowski, Henryk

Cieslak, Romuald

10-cv-1372
10-cv-06908
05-cv-1093
06-cv-6963
10-cv-4226
05-cv-6240
05-cv-6285
05-cv-6286
06-cv-134 79

Collado, Jose

08-cv-9717

Collado, Yudelka

08-cv-9718

Czerwinski, Marian

08-cv-6805

Daikoku, Alex
Dobrowolski, Jan

06-cv-5342
10-cv-6859

Dul, Alojzy

08-cv-9065

Encarnacion, Maria

09-cv-3099

Espinoza, Alonso

08-cv-9720
10-cv-6902

Estrella, Columbina

09-cv-2818

Faltynowicz, Stanislaw

08-cv-2616

Foremska, Lucyna

05-cv-3090
06-cv-5392

Galazka, Jadwiga

08-cv-9067

Exhibit A
06-cv-5343
Galazka, Jozef

08-cv-6722
10-cv-6903

Ginter, Janusz

06-cv-5337

Glowaty, Marek

09-cv-10591

Iturralde, Gustavo

06-cv-5281

Jastrzebowski, Eugeniusz

06-cv-5289

Kacperski, Zbigniew

09-cv-5233
10-cv-06906

Khomik, Volodomyr

06-cv-5282

Koszelnik, Anatol

06-cv-5283

Kowalewski, Janusz

10-cv-6882

Kowalewski, Tadeusz

06-cv-1521

Krupinski, Leszek

06-cv-1519
07-cv-0083

Krysiuk, Ryszard

08-cv-6804

Kucharski, Zbigniew

08-cv-9069

Kwasnik, Wladyslaw

07-cv-11291

Lejtman, Slawomir

08-cv-5709

Lelek, Antonio

10-cv-6862

Liriano, Maritza

06-cv-5327

Lupinski, Boguslaw

05-cv-6284
06-cv-8308

Maciej, Jozef

10-cv-6865

Maksimiuk, Marian

06-cv-5291

Matuszewski, Piotr

06-cv-1514

Mierzejewski, lreneusz

06-cv-1513

Miroschnychenko, Oleksiy

10-cv-6883

Mnich, Marian

08-cv-5764

Moreno, Maria

07-cv-01669

Muszkatel, Jerzy

06-cv-5285

Naranjo, Jose

06-cv-1517
07-cv-0082

Ouglyk, Jaroslav

10-cv-6864

Parra, Miller

06-cv-5284

Perzynska, Irena

06-cv-5345
10-cv-6900

Pogorzelski, Jozef

06-cv-2748

Portilla, Lucila

10-cv-6870

Puello, Maria

07-cv-11294

Exhibit A

Ramirez, Iris

05-cv-5666
06-cv-1531

Ramirez, Nubia

09-cv-3101

Ramirez, Ramona

10-cv-0366

Retelski, Marian

10-cv-6868

Ropel, Waldemar

06-cv-1520

Sanchez, Alex Anthony

05-cv-1091

Skrzeczkowski, Eugeniusz

07-cv-4517
06-cv-2881

Sobol, Andrzej

06-cv-4171

Socha, Marek

09-cv-0680

Sowa, Miexzyslaw

05-cv-2446
07-cv-7982

Szalaj, Zbyszek

06-cv-5336

Urso, Joseph

05-cv-4081

Vargas, Edwin

06-cv-5326

Velez, Noel

10-cv-6869

Vynar, Mykhalo

08-cv-6809

Wajda, Andrej

05-cv-6269
06-cv-15192

Wszolkowski, Dariusz

06-cv-5344

Zalewski, Boguslaw

06-cv-1525
06-cv-01524

Zanabria, Miguel

06-cv-5319

Zdanowicz, Jan

09-cv-2258

Zietek, Andrzej

09-cv-3770

Zygmunt, Mieczyslaw

09-cv-0679

Exhibit B

Plaintiff Who Has Partially Settled

Lysomirski, Antoni
Remaining Defendants:

52 Habitat Co.
RB 52 Co. LLC
Defendants Who Are Settling:

150 Broadway Corp.
150 Broadway N.Y. Assocs. LP
233 Broadway Owners, LLC
25 Broadway Office Properties, LLC
ACTA Realty Corp.
AT&T Wireless Services, Inc.
Bailey N.Y. Associates
J.W. Realty Co. LLC
New York City Industrial Development Agency

Index Number

10-cv-6863