Ground Zero Client Advisory Regarding the Affect of Ancillary Settlements on Zadroga Rights from Worby Groner Edelman & Napoli Bern, LLP
A number of media outlets have reported inaccurately in the last few days that upon the President’s signing of the James Zadroga 9/11 Health and Compensation Act (“Zadroga”) on Sunday January 2, 2011, some of the plaintiffs we represent in the In Re: World Trade Center disaster Site Litigations will be foreclosed from filing claims under Zadroga. The media outlets erroneously believe that each plaintiff’s individual signed release documents must be delivered to the settling defendants prior to the Zadroga Bill becoming law upon the President’s signature. Regrettably, these media reports are inaccurate in a number of ways, most particularly in suggesting that our clients’ interests have not been timely and effectively protected by this office.
In addition to the Settlement Process Agreement (“SPA”) entered with the City of New York and its Contractors through negotiations with the WTC Captive Insurance Co., Inc., we have subsequently negotiated and entered agreements with six (6) other defendants (the “Ancillary Defendants”). Those are the Port Authority of New York and New Jersey; Phillips & Jordan, Inc.; Evans Environmental and Geological Science and Management, LLC d/b/a Evans Environmental and Geosciences s/h/a Evans Environmental (“Evans Defendants”); Survivair and Taylor Recycling and Tishman Construction Corporation Of New York, Tishman Construction Corporation Of Manhattan and Tishman Interiors Corporation (the “Tishman Defendants”).
We have been negotiating with these defendants for many months and some of the agreements were not complete until very recently. Throughout this time, we have been also been involved in the complicated process of estimating clients’ recoveries for all of the subsequent settlements for correspondence transmitting information about those settlements and the requisite settlement releases for client execution. Recognizing that the complex nature of entering into these agreements, getting Court approval, compiling the package of materials, responding to questions about the documents, getting them signed and notarized and tendering them to the defendants could not logistically occur before Zadroga would become law, we performed a series of actions to ensure that if you opted in to the settlement, you would still be able to pursue your Zadroga rights.
Knowledgeable and experienced people following these proceedings, including people who were involved with the prior Victims Compensation Fund (“VCF”), widely believe that the regulations for implementing Zadroga – which have not yet been written -- will clarify that those who opted in but did not personally tender the document known as a “Release” before the President signed Zadroga will be fully eligible to pursue Zadroga benefits. Despite this assurance, our law firm took a number of steps to ensure that the logistical issue of tendering releases did not impair anyone’s Zadroga rights. Specifically, we took all the following actions on behalf of any of our clients who have expressed a written desire to us or an oral or written desire to Special Counsel Hoenig to opt into the SPA (“opt ins”):
- We have sought advice and approval from Court-Appointed Legal Ethicist Professor Roy Simon as to whether we could execute and tender the releases on behalf of the SPA opt ins. Professor Simon confirmed our belief that we not only had the authority to do so, but indeed had an ethical obligation to do so in light of the concerns about timely tender for the purpose of Zadroga eligibility. Having obtained Prof. Simon’s blessing, we have since tendered releases on behalf all SPA opt-ins to all Ancillary Defendants against whom the SPA opt ins have filed claims. To be clear, if you have opted into the SPA or have told Mr. Hoenig that you want to opt in, we have already executed and tendered a release on your behalf to all other defendants you have claimed against, and we believe this action satisfies the Zadroga requirements.
- Even though step # 1 alone was sufficient, we went further and executed a clarification agreement with five of the six Ancillary Defendants supplementing the Settlement Agreements we had already entered into with each one. This clarification agreement states that the date of tender of each release is the date the settlement agreement was signed by counsel. All of those settlement agreements were signed by counsel before the President signed Zadroga. (We anticipate that the sixth defendant will approve the clarification agreement shortly.) These clarification agreements are a second independent means by which Zadroga was satisfied.
- In addition, we have delivered stipulations of discontinuance for all opt in plaintiffs who have claims against the Ancillary Defendants. Those stipulations are being held in escrow. We believe this is a third manner in which Zadroga has been satisfied. The Cover Letter to the Stipulations Of Discontinuance explicitly says, “We are also tendering to you a Stipulation of Voluntary Dismissal with prejudice releasing all claims for certain actions against [Ancillary Defendants].”
We also believe that the settlement agreements themselves will be sufficient to satisfy the Zadroga regulations, since the approximately $75 million at issue will be a set off for the Congressional appropriations. In addition, our settlement with the Marine insurers for those clients claiming exposure injuries suffered on the Barges and transfer stations did not require releases. Therefore no Zadroga issue ever arose related to Barge settlement monies.
Given all of these steps, we are confident that you will not be foreclosed from claiming under Zadroga solely due to the date your individual executed documents are delivered to the defendants’ counsel, and we will do whatever is we can to ensure that the Zadroga regulations are written to produce that result. As always, you should get legal advice from your lawyer, not from newspapers. As you can see, the newspapers do not always have all the facts. Indeed, it is unfortunately the case that more newspapers get sold when the headline hints at disaster than when the papers accurately and carefully report the facts.
