Dauphin Joint Ex A Notice Comment

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Informations

• Publié par: Sior
• Nombre de lectures: 16
• Langue: English

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U NITED S TATES C OURT O F F EDERAL C LAIMS

Proposed Revision to Litigation Settlement Agreement and Final Settlement of Class Action Against the United States

A Court authorized this notice. This is not a solicitation from a lawyer.

Introduction You are receiving this notice because official records show you are, or may be, a member of a Plaintiff class that the United States Court of Federal Claims certified in a class action lawsuit in 2006. Plaintiffs in that lawsuit, entitledDauphin Island Property Owners Association, Inc., and James Hartman, et al. v. United States of America, No. 00115L (Fed. Cl.), sought damages against the United States based on allegations that the dredging and disposal activities of the U.S. Army Corps of Engineers in the Mobile Channel have caused erosion that has taken property on Dauphin Island. On September 6, 2006, the Court approved a settlement of the dispute on terms set forth in a Litigation Settlement Agreement and First Addendum thereto entered into by the Class, the United States, and the State of Alabama.The Litigation Settlement Agreement and First Addendum (hereinafter, sometimes, the “LSA”) are available for review at http://dauphinclass.sutherland.com. Now, the Plaintiff class representatives Dauphin Island Property Owners Association, Inc.and James Hartman and the United States propose amending the terms of the settlement in accordance with the provisions set forth in a proposed Second Addendum, which is available for review at the internet address noted above.The proposed Second Addendum revises and replaces the LSA. Among other provisions, the proposed Second Addendum requires the United States and the State of Alabama to make a cash payment totaling $1,500,000 to the Plaintiff class. The Plaintiff class intends to apply these funds, after payment of legal fees, toward a feasibility study for a beach nourishment project, engineering for such a project, and/or actual implementation of such a project.The proposed Second Addendum releases the United States from claims for erosion damage and resolves the lawsuit fully and finally, but provides that the United States remains obliged to the Plaintiff class, subject to certain enumerated conditions, to continue to dispose of dredged material in the Feeder Berm Disposal Area and the Sand Island Beneficial Use Area as provided in the original LSA.

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The Reason for the Proposed Revision The LSA called for an Impacts Study to determine whether Corps dredging and disposal practices caused measurable erosion of Dauphin Island.If the Impacts Study were to conclude that the Corps practices caused measurable erosion, or to come to no definitive findings, the Corps was required to study the feasability of a beach nourishment project and to build one, if feasible and acceptable, at a cost limit of approximately $7.7 million.If the Impacts Study were to conclude definitively that no measurable erosion was attributable to the Corps practices, plaintiffs would have to dismiss their case and would take nothing, subject to certain rights to challenge the Study’s conclusions, as discussed below.

The Impacts Study concluded definitively that no measurable erosion was attributable to the Corps practices. The Corps’ expert and the State of Alabama’s expert supported the conclusion. In accordance with their rights under the LSA, plaintiffs elected to challenge the Impacts Study’s conclusion, based on their own expert’s opinion, in an Alternative Dispute Resolution (“ADR”) proceeding in the nature of an arbitration where plaintiffs have the burden of demonstrating by a preponderance of the evidence that the conclusion was fundamentally flawed, plainly wrong, or arbitrary. (The Trial Court has characterized this burden as a “heightened burden.”)In the event plaintiffs were to satisfy this burden, the Corps would be obligated to undertake the feasibility study and project described above. If plaintiffs could not satisfy the burden, they would be required to dismiss their case and would take nothing, with no right to appeal.

Even if plaintiffs prevailed in their challenge to the Impact Study’s findings, it is likely that a number of years would elapse before a feasible project could be constructed.If no feasible project could be developed, the matter would return to litigation of uncertain time and outcome, in which recovery would be capped at approximately $7.7 million, and the Impacts Study’s negative conclusions would be admissible in defense against plaintiffs’ claims.

To eliminate the risks under the processes set forth in the LSA, counsel for all parties negotiated the proposed Second Addendum, which substitutes the certainty of the payment of $1,500,000 for the uncertainties posed by continuing with the ADR. If the proposed Second Addendum is approved, class members will benefit from an immediate cash payment to Dauphin Island Property Owners Association, Inc., which intends to apply the funds, after payment of legal fees, toward a feasibility study for a beach nourishment project, engineering for such a project, and/or actual implementation of such a project.Under the Second Addendum, class members relinquish the right to challenge the findings of the Impacts Study.The Class Representatives and their attorneys believe that the proposed Second Addendum is fair, reasonable, and the best result for all the Class Members.

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Class Membership In the spring of 2006, eligible persons were given notice of the LSA and offered the opportunity to opt in to the class. All those who optedin were certified as members of the Plaintiff class, meaning that they were bound to the terms of the LSA when the Court approved the LSA on September 6, 2006. Pursuant to the terms of the First Addendum to the LSA, class members who sold, conveyed or transferred their property interest on Dauphin Island after July 15, 2005 ceased to be members of the Class and are not eligible to participate as such, but their transferees automatically became class members. Ifthe Court approves the Second Addendum, all class members will be bound by its terms.

Hearing and Comments Members of the class, as well as members of the public, are invited to attend and participate in a public hearing on September 15, 2009 at 1:00 p.m. before the Honorable Bohdan A. Futey, United States Court of Federal Claims Judge, at the United States District Courthouse, 113 Saint Joseph Street, Mobile, Alabama 36602.At this hearing, the parties will request the Court approve the proposed Second Addendum to the Litigation Settlement Agreement.Any member of the class wanting the opportunity to comment on the proposed Second Addendum must advise the Court in writing at the address listed below by September 1, 2009.Only those class members who have provided timely written notice of their intention to address the Court will be permitted to participate in the hearing. Written notice stating your intent to object to, approve of, or otherwise comment on the proposed Second Addendum should be sent to Dauphin Island Hearing Notice, c/o Richard E. Davis, Davis & Fields, P.C., Post Office Box 2925, Daphne, Alabama 36526.

Your legal rights are affected whether you act or don’t act.Read this notice carefully.

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Y OUR L EGAL R IGHTS AND O PTIONS IN THIS C LASS ACTION D O N OTHING You are currently a member of the Class that was certified in this case. As a member of the Class, you may approve of, object to, or comment on the proposed Second Addendum.If the Court approves the Second Addendum, you will be bound by its terms.You are not required, however, to take any additional action to participate as a class member at this time.

O BJECT T O , A PPROVE O F , O R C OMMENT

G O TO A Hearing

C ONTACT U S

As a member of the Class, you may (but are not required to) object to, approve of, or otherwise comment to the Court about whether it should approve the proposed Second Addendum.Section “A” of the attached form allows you to provide commentary.All forms must be sent to Dauphin Island Hearing Notice, c/o Richard E. Davis, Davis & Fields, P.C., Post Office Box 2925, Daphne, Alabama 36526 and be postmarked or faxed to (251) 6211520 bySeptember 1, 2009. You can give reasons why you think the Court should or should not approve the proposed Second Addendum.The Court will consider your views.

As a member of the class, if you choose to provide written comments, you may (but are not required to) ask to speak in Court about the fairness of the proposed Second Addendum. The space to request such permission is included in section “B” of the attached form (also available online at http://dauphinclass.sutherland.com).All forms must be sent to the address listed above and postmarked or faxed to the fax number listed above by September 1, 2009.

If you have questions, you may contact plaintiffs’ counsel at1866363 4824. Courtapproved plaintiff counsel are Daniel G. Blackburn of the firm Blackburn & Conner, P.C. (Bay Minette, AL); Richard E. Davis of the firm Davis & Fields, P.C. (Daphne, AL); Joseph D. Steadman of the firm Dodson & Steadman, P.C. (Mobile, AL); and Lewis S. Wiener, of the firm Sutherland Asbill & Brennan LLP (Washington, DC).

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS DAUPHIN ISLAND PROPERTY) OWNERS ASSOCIATION, INC.,) a nonprofit corporation, and JAMES W.) HARTMAN, et al.,) ) Plaintiffs, )No. 00115 L ) vs. ) ) JudgeBohdan A. Futey UNITED STATES OF AMERICA,) ) Defendant. ) __________________________________________) INDIVIDUAL CLASS MEMBER’S COMMENTS ON PROPOSED SECOND ADDENDUM AND/OR REQUEST TO ADDRESS THE COURT AT SEPTEMBER 15, 2009 PUBLIC HEARING

Class Member Name: _________________________________________________________________

Location(s) of property(ies) on Dauphin Island (street addressand, if possible, the legal description of your property interest [lot and block number, or name of the condominium unit number, or, at least, attach a copy of your deed]:

Mailing address(es): __________________________________________________________________

Phone Number(s) (optional): ___________________________________________________________

Email (optional): _____________________________________________________________________

___ Future communications to me are sufficient if emailed to the address set forth above

___ Future communications to me arenotsufficient if emailed only (See Reverse Side)

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A. COMMENTSON THE PROPOSED SECOND ADDENDUM [As a member of the Class, you may approve of, object to, or comment on the proposed Second Addendum. You are not required, however, to take any additional action to participate as a class member at this time.] ___ Iapprove of the Proposed Second Addendum ___ Iobject to the Proposed Second Addendum

Comments: _________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ B. REQUESTTO SPEAK AT PUBLIC HEARING. [If you are a member of the class, and only if you expressed your objection, approval, or other comments on the proposed Second Addendum in Section A of this form, you may (but are not required to) request to speak at the public hearing at which the Court will consider whether to approve the Second Addendum. You do not need to speak at the hearing to remain in the class or to have the Court consider your written commentary.] ___ Iwish to appear at the hearing at 1:00 pm, on September 15, 2009, at the United States District Courthouse, 113 Saint Joseph Street, Mobile, Alabama 36602

(Signature)___________________________________

(Date) _____________________________

Please fax or mail this form (faxed or postmarked no later than September 1, 2009) to:

Dauphin Island Hearing Notice c/o Richard E. Davis Davis & Fields, P.C. Post Office Box 2925 Daphne, Alabama 36526 Fax: (251) 6211520

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