On Thursday in the District of New Jersey, plaintiffs in the case against BASF Catalysts LLC, et al., filed a motion for preliminary approval of the class settlement agreement. The terms of the settlement are set forth in the agreement from March 13, 2020, where BASF and codefendant and former counsel Cahill Gordon & Reindel LLP, agreed to pay $72.5 million.
The case originated from a mine in Johnson, Vermont where talc was extracted and sold for certain industrial and commercial purposes. The mine was operated by Engelhard Corporation, which was bought by BASF in 2006 and then renamed BASF Catalysts LLC. Engelhard dealt with a wave of asbestos litigation, and was represented in those cases by codefendant Cahill Gordon & Reindel LLP. The plaintiffs’ counsel in the present suit believes they obtained evidence that contradicted the defendants’ claims and defenses in previous litigation. Specifically, the plaintiffs argued BASF and Cahill committed “fraudulent concealment, fraud, and civil conspiracy under New Jersey law.” After four rounds of mediation and additional discovery, the parties have reached the current settlement agreement.
The final mediator noted, “the proposed Settlement Agreement reflects a compromise between the parties.” Furthermore, “[p]laintiffs’ [c]ounsel weighed the risks of litigation against the need to provide timely benefits to the members of the proposed Settlement Class, which might be delayed for years, if not altogether, without the settlement.” The mediator also noted the risks that face defendants due to the alleged documents and testimony “that contradict the representations that Defendants made in the underlying cases to plaintiffs and the courts that: (1) Emtal talc did not contain asbestos; (2) no evidence existed that Emtal talc contained asbestos; and (3) no Engelhard employee had ever testified about whether Emtal talc contained asbestos.”
Benefits to the settlement include the $72.5 million non-reversionary fund paid by BASF and Cahill. Additionally, BASF and Cahill will pay $3.5 million for administrative expenses that were incurred in designing, establishing and carrying out the plan. BASF and Cahill have also agreed not to oppose the plaintiff’s application for the court to have defendants pay up to $22.5 million in attorney’s fees and up to $1.2 million in reimbursement of costs. As for distribution to the settlement class, the plaintiffs have proposed a four-level claim system that awards funds based on exposure and health effects received.
Overall, plaintiffs are seeking the court to preliminarily approve the class action settlement, conditionally certify the proposed settlement class and allow for the plan to be carried out, and schedule a final approval for the class action settlement.
The plaintiffs are represented by Cohen, Placietella & Roth, Fox Rothschild, and Murray, Stone & Wilson. BASF is represented by Robinson Miller, Kirkland & Ellis, and Blank Rome, while Cahill is represented by Connell Foley, Walsh Pizzi O’Reilly Falanga, and Pepper Hamilton.