Stop Arbor Hills has nothing to do with the “class action” odor lawsuit filed on April 25, 2016 by Liddle & Dubin of Detroit. The case is pending settlement. Only two plaintiffs, Jorell Lawrence and Mary Salmon, are named and we’ve never heard of or seen them.
Disclaimer: Stop Arbor Hills does not give legal advice. We are NOT lawyers. You must decide for yourself how to respond to the Settlement & Release. We cannot tell you what to do. Any information contained here is for educational purposes and as a public service of a non-profit charity.
Our non-profit’s attorney reviewed the Settlement & Release Agreement and advised board members to Exclude Ourselves, also called Opting-Out. You need to educate yourself and decide what is best for you. If you decide to opt out, you can use the Exclude Yourself form.
If you live within a 2-mile radius of Arbor Hills Landfill, you may be a Class Member. The law firm posted a map of the class area.
Each class member must either make a claim, exclude themselves, or object. The only class members who are NOT bound by the terms of the agreement are those who exclude themselves. Your request for exclusion (opt-out) must be postmarked by Oct. 11, 2017. Note: You cannot object and opt out.
If you do nothing, you will be considered part of the class action and your rights could be limited yet you will not receive a payment, estimated to be $178 of taxable income but likely less than $100.
- Oct. 11, 2017 – Exclusions (Opt Outs) and Objections must be postmarked by this date. (If you object , you are bound by the terms of the settlement.)
- Oct. 23, 2017 – Claim Forms must be postmarked by this date.
- Oct. 27, 2017 at 8:30 a.m. – Final Fairness Hearing to approve the Settlement Agreement.
Our lawyer wrote: The Settlement includes sweeping language barring class members from “participating in” or “benefiting from” any action or “other adversarial proceeding” in any kind of jurisdiction or forum, against any defendant, for not only “released claims” but matters “relating in any fashion to … the facts and circumstances relating” to the action. See Settlement and Release Agreement Para. 10.
Our lawyer wrote: “While the Settlement purportedly releases only claims arising from 2013 to the end of the Cooling Off Period, the quoted language would effectively bar class members from ever becoming involved in any kind of future legal action, in connection with the landfill, against defendant owners or operators of the Arbor Hills Landfill, for at least three separate, but interrelated, reasons:
- Class members would have to wait a considerable time after the end of the cooling off period to gain the right to bring suit, because the legal theories of nuisance and negligence require proving persistent odors and substantial damages, respectively;
- It would be difficult to impossible to separate “the facts and circumstances” relating to the Action from any future actions, not only because future nuisance odors would probability arise from the same causes that presently exist at the landfill, but even more obviously, because of the basic fact that the landfill exists on its present site now;
- Class members would not only be barred from bringing lawsuits, they would be barred from taking any other actions, or participating in any other legal proceedings, such as permitting or enforcement proceedings, in a manner adverse to the landfill. Even verbal objections at a hearing would be prohibited.
There is an exception to this for serious medical conditions that are currently unknown to class members. See Settlement Para. 5.26.”
We consulted with a second attorney who told us this restriction would even apply to filing odor complaints.
The Notice of Pendency etc. provides that a prospective class member can EITHER opt out OR object. You cannot do both! It specifically states that those who file objections are deemed members of the class for settlement purposes, regardless of how the court rules on the objections.
And it gets worse!
Our lawyer wrote: “The Settlement requires both payment of a settlement amount and completion of “Improvement Measures.” However, para. 6.3 of the Settlement provides that EITHER ONE of these requirements “is and shall be sufficient, adequate, full, and final consideration under this agreement.” This provision could excuse Arbor Hills Landfill from completing the improvements stipulated in the Settlement, as long as the settlement funds have been provided.
Of course, Arbor Hills would still be obligated to comply with the EPA Consent Agreement. However, as explained above, the ability of class members to participate in proceedings related to the Consent Agreement would be eliminated or severely curtailed.”
The dump already has to comply with the improvement measures because the law firm lifted them from the EPA consent agreement!
The lawsuit alleges that emissions from the landfill occurred because of the landfill operators’ conduct. The landfill operators are not admitting liability. Get more information on the law firm’s website.
On September 5, 2017, the Wayne County Circuit Court issued an order granting preliminary approval of the class action settlement. The court still has to decide whether to approve the settlement. Payments will only be made if the court approves the settlement and after appeals, if any, are resolved.
Liddle & Dubin sent class members a settlement notice. According to the lawsuit, a class member is someone who lives within a 2-mile radius of the dump. The lawsuit estimates this is about 1,700 households. We estimate it’s closer to 2,500.
The settlement agreement says: “Advanced or the BFI Parties (the landfill), each and in their own sole discretion, may also terminate this Agreement if the total number of Class Members requesting to Opt-Out of the Settlement exceeds (a) 5% of the total number of Class Members or (b) 50 Class Members (the “Opt-Out Threshold”). In such event, Defendants may elect to terminate this Agreement…”
If 50 class members opt out and the dump does not terminate the agreement, “the settlement funds will be reduced proportionately consistent with the number of opt-outs as measured against the final number of class members eligible for settlement funds.” View the language
The settlement notice says “Class Counsel (Liddle & Dubin) will request the Court for an award of attorneys’ fees, costs, and litigation expenses, not to exceed $300,000 from the Settlement Fund.” It also says “Defendants will also provide $750,000 to the ‘Settlement Fund’ for the benefit and advantage of the Class Members.” This means the law firm will get at least 40% of class members’ settlement.
The two named plaintiffs are supposed to get $2,500 apiece. The remaining class members will split $445,000 – at most. Remember the $750,000 settlement amount can be reduced if only 50 class members opt out. There is no provision for attorney fees to be reduced. By our estimates, the most class members can hope to be paid is about $262. That’s assuming 50 people don’t opt out, which they certainly will. About 200 members of Stop Arbor Hills have already committed to excluding themselves.
Liddle & Dubin was paid $600,000 in a recent Pennsylvania odor case that required a landfill to pay $1.4 million into a settlement fund. Homeowners will get about $83 apiece in this case. http://bit.ly/2wkuHUI
The court will hold a fairness hearing at 8:30 a.m. on Oct. 27, 2017 at the Wayne County Circuit Courthouse, 2 Woodward Ave. in Detroit. At this hearing, the court will consider whether the settlement is fair, reasonable and adequate. The court will consider objections.
Lawrence, et al. v. Advanced Disposal Services Arbor Hills Landfill Inc., and BFI Waste Systems Of North America, LLC, and Allied Waste Industries, Inc. was assigned to judge Edward Ewell, Jr., Case No. 16-005209-NZ.
The settlement notice is misleading where it says: “The court has appointed the following attorneys to represent the Class Members: Liddle & Dubin, PC…” When Stop Arbor Hills met with lead attorney Laura Sheets, she told us the original filing was written so poorly because they were in a rush to beat other law firms to file the lawsuit. The court didn’t choose this law firm, they were the first to file an odor lawsuit based on the work of Stop Arbor Hills in exposing the odor issues and mismanagement at the dump.
Advanced Disposal Services issued a press release on Sept. 8, 2017 announcing a proposed settlement of the class action lawsuit .