The Trustees, with the consent of the TAC and the Futures Representative, have increased the Payment Percentage to 48% of the total liquidated claim value. After necessary updates to the claims processing system and payment procedures have been completed, claims will be paid in accordance with this change. All eligible previously paid claims, including pre-petition liquidated claims, should receive the additional amounts due as a result of this Payment Percentage increase by the end of December, 2014.
Update Regarding Submission of Claims
The Trusts have worked with their information technology professionals to set up new procedures for filing claims electronically. It is anticipated that between now and the end of July those processes will be put in place. If you are a current filer of claims with the Trusts, you will receive an email and/or phone call from the Trusts to give you instructions on the new web based filing procedures.
The January 23, 2014 stipulation and agreement between the Trust and Michael J. Mandelbrot and the Mandelbrot Law Firm (collectively “Mandelbrot”) requires Mandelbrot to transfer all claims to substitute counsel on or before July 23, 2014.
The Trust will transfer claims filed by Mandelbrot to substitute counsel upon receipt of a written representation from Mandelbrot consenting to the transfer of each affected claim, as well as a written representation from substitute counsel accepting the transfer.
The Trust will transfer claims to counsel providing to the Trust a written representation and warranty that it possesses the client’s authorization to accept the transfer and handle the claim. To avoid doubt, counsel are encouraged to include copies of pertinent client authorization(s).
Where the representation and warranty does not show it has been copied to Mandelbrot (Michael J. Mandelbrot c/o The Mandelbrot Law Firm, 505 A San Martin Drive, Suite 200, Novato, California 94945), the Trust will promptly forward such representations and warranties to Mandelbrot. Absent objection supported by reliable evidence of a lack of client authorization, the Trust will modify its records to reflect transfer of claims to the counsel representing and warranting that it possesses client authorization within fifteen days.
UPDATE TO NOTICE TO BENEFICIARIES AND POTENTIAL BENEFICIARIES OF THE J.T. THORPE SETTLEMENT TRUST, THORPE INSULATION COMPANY ASBESTOS SETTLEMENT TRUST, AND WESTERN ASBESTOS SETTLEMENT TRUST REPRESENTED BY MICHAEL J. MANDELBROT:
The Trusts have received inquiries requesting a copy of the May 24, 2013, letter referred to in the Bankruptcy Court’s Findings of Fact and Conclusions of Law entered in the Declaratory Relief Adversary Proceedings filed by the J.T. Thorpe Settlement Trust and the Thorpe Insulation Settlement Trust regarding the Trusts’ conduct in investigating Michael J. Mandelbrot and the Mandelbrot Law Firm. Based on these requests, the Trusts are posting the May 24, 2013, letter on their Web sites.
Modifications to the Trust Distribution Procedures and Case Valuation Matrix were approved by the Trustees, with the Consent of the Futures Representative and Trust Advisory Committee, as follows:
Trust Distribution Procedures
Section 6.2 Content of Claims Materials
The Claims Materials shall include a copy of this TDP, such instructions as the Trustees shall approve, and Trust Claim forms. The Trust Claim forms shall be submitted with supporting documentation in accordance with the relevant criteria as set forth below and in compliance with Section I of the Matrix. At a minimum, the unliquidated Trust Claim form shall require submission of sufficient information to prove, and any relevant information tending to disprove exposure, disease and damages including:
(a) All relevant information called for in the San Francisco Superior Court General Order 129 Form Interrogatories, Set 1 and Set 2 and Minnesota Plaintiffs Set 1 Answers to Defendant’s Interrogatories including the required complete occupational history and identification of other exposures, with the information relevant to exposure used to qualify this claim for the particular category highlighted and the pages tabbed.
(b) If the claimant was involved in any type of asbestos litigation, a complete copy of any litigation interrogatory responses created in support of that claim must be submitted to the Trust regardless of the jurisdiction in which the lawsuit was filed with any information exposures asserted in this claim highlighted and the pages tabbed (or, if applicable, noting that the interrogatories contain no reference to exposures asserted in this claim). In addition, the claimant who was involved in any type of asbestos litigation must identify all prior depositions of the claimant and produce them upon request.
(c) If the Claimant is utilizing the Trust Approved Interrogatories (set forth on the Trust Web site), portions of litigation interrogatories that were amended after the litigation was concluded or declarations to establish the Trust Claim, the responses and/or declarations must meet the following requirements:
(i) The interrogatories and/or declarations must be verified or made by a person who is competent to testify to the information stated in the interrogatories and/or declarations and the person must have personal direct knowledge of the factual information relevant to the claim and the answers and/or declarations must provide sufficient background information to explain how the person verifying the interrogatories and/or the declarant(s) acquired the personal direct knowledge of factual matters relevant to this claim, to allow the Trust to determine the credibility of the person verifying the interrogatories and/or the declarants;
(ii) Where the person lacks personal direct knowledge, the answers and/or declarations must provide sufficient information to explain how, when and from what sources the person verifying the interrogatories and/or the declarants acquired any indirect knowledge of factual matters relevant to the claim;
(iii) The interrogatory responses and/or declarant must provide specifics about the claimant’s (or claimant’s decedent’s) exposure and not use boilerplate wording;
(iv) If the person verifying the interrogatories and/or declarants relied upon documents as the basis for the responses given in the interrogatories and/or declarations (i.e. military records, social security records, etc.), those documents must be specifically identified and relevant portions of any such documents included in the supporting documents attached to the claim;
(v) The truth of the facts asserted in the interrogatories must be affirmed or verified under the penalty of perjury and any declarations must be made under penalty of perjury;
(vi) All declarations must be specific to the claim. In appropriate circumstances, the Trust may accept expert opinions pertaining to issues that are of general application and that are relevant to the specific claimant’s claim.
(vii) The Trust shall have the right to interview by phone or in person (always with the participation or presence of claimant’s counsel), anyone who verifies interrogatories, or has provided information to the person verifying the interrogatories or who submits a declaration in support of a claim submitted to the Trust.
(d) Medical records, medical reports and/or death certificates evidencing the claimed disease, with the diagnosis highlighted and the pages tabbed. For lung cancer and other cancer cases, evidence of markers or other factors which would lead to an upward adjustment under the Matrix will be highlighted and the pages tabbed. For Grade I claims, evidence of x-ray and PFT values that would lead to an increased award will be highlighted and the pages tabbed.
(e) For Serious Asbestosis claims, evidence to support this categorization will be highlighted and the pages tabbed.
(f) For an Injured Person seeking a multiplier for an economic loss in excess of the base case amount, an economic report of evidence supporting claimed wage/pension/home services loss, with total claimed loss highlighted and the page tabbed.
(g) For an Injured Person seeking a multiplier for medical expenses in excess of the base case amount, an affidavit summarizing medical expenses, or submission of medical bills to substantiate the total claimed amount.
(h) An endorsed/filed copy of the face page of the complaint or equivalent proof of commencement of litigation if applicable, or alternatively a certification under Section 5.1.
(i) Social Security records, front or identifying face page and portions relevant to facts asserted in connection with the claim of deposition transcript(s), union records, railroad records, military records (including leave records), or any other employment records all highlighted and tabbed. If such records are unavailable, the claimant or representative attorney must explain why such records are unavailable and attest that every reasonable effort has been made to obtain them.
Please see the Second Amendment to and Complete Restatement of Trust Distribution Procedures.
Case Valuation Matrix
Section I. General Claim Provision
a. Minimum and Maximum Values. All claims after being valued at their respective base case value and any appropriate adjustments are subject to the following minimum and maximum values.
(i) Minimum Value. Any Injured Person who has submitted an approved claim under a Compensable Disease category and has submitted a Trust Claim form to the Trust with all required documentation as outlined in the Trust Distribution Plan and herein, will receive a minimum of 10% of the Average Value of the claim for that disease in the controlling jurisdiction.
(ii) Maximum Value. Any Injured Person who has submitted an approved claim under a Compensable Disease category and has submitted a Trust Claim form to the Trust with all required documentation as outlined in the Trust Distribution Plan and herein, will receive a maximum of four times the Average Value of the claim for that disease in the controlling jurisdiction, unless it qualifies as an Extraordinary Claim as defined in Section IX of the Matrix.
b. Medical Diagnoses. Any diagnosis of pulmonary asbestosis shall be made by a (i) a Pathologist, who personally reviewed the Injured Person’s pathology, or (ii) an Internist, Pulmonologist or Occupational Medicine Physician who actually examined the Injured Person. These findings will be contained in a detailed narrative written report of the examination. All medical diagnoses in the Matrix are required to be made by Board-Certified physicians in appropriate specialties to a level of reasonable medical probability. Specifically, medical reports that only come to a conclusion that findings are “consistent with” asbestos-related disease will not, standing alone, be sufficient to establish compliance with the medical criteria in the Matrix. Medical experts who are not Board-Certified but who meet equivalent medical experience and expertise requirements may be approved by the Trust with the consent of the Trust Advisory Committee (“TAC”) and Futures Representative upon application by a Claimant.
c. Record Review Exception. Notwithstanding subsection (b) above, in the event that the Trust determines upon adequate showing under penalty of perjury that good cause exists to excuse either (1) personal review of Injured Person’s pathology by a Pathologist; and/or (2) actual examination of the Injured Person by an Internist, Pulmonologist or Occupational Medicine Physician, the Trust in its exercise of discretion may permit those medical professionals to submit their diagnosis of pulmonary asbestosis on the basis of a review of the Injured Person’s medical records (“Record Review Claim”), provided however, the Maximum Value for any such claim shall be the limit set in Section VIII for Individual Review. Examples of record review claims would be wrongful death actions where no pathology exists, or Injured Persons who are in such extremis or other circumstances exist that no such examination is practicable.
d. Claimant’s Burden to Submit Credible Reliable Claim Information. Information submitted in support of a claim must comply with recognized medical standards (including but not limited to standards regarding equipment, testing methods, and procedures) and/or legal evidentiary and authenticity standards.
(i) While the Trust will not strictly apply rules of evidence, information provided in support of claims must be reliable and credible so that the Trust and, if needed, ADR neutrals are fully informed regarding the foundations for facts asserted in support of claims. The Trust normally will accept copies instead of authenticated copies of x-ray reports, laboratory tests, medical examinations, other medical records and reviews that otherwise comply with recognized medical and/or legal standards unless circumstances indicate that the copies of the and /or the tests, reports, or review are not authentic or are otherwise unreliable.
(ii) The Trust normally will accept copies instead of authenticated copies of deposition testimony, invoices, affidavits, business records, deck logs, military service records (including leave records) or other credible indirect or secondary evidence in a form otherwise acceptable to the Trust that establishes an Injured Person’s occupation, occupational history, business or other losses or the Injured Person’s presence at a particular ship, facility, job site, building or buildings or location during a time period in which the asbestos-containing material for which Western is responsible was present, unless circumstances show that the information being submitted is unreliable.
(iii) Examples of unreliable information include where the circumstances raise questions of authenticity of copies or where persons authoring or verifying facts offered in support of a claim lack direct knowledge of such facts but fail to reveal and describe what facts, and how and from what sources they learned those facts, they relied upon as the basis for their assertion of such facts. Under these circumstances, the Trust and any ADR neutrals shall apply the rules of evidence to exclude evidence where the witness or verifying party declines to provide such foundational information, e.g., on grounds that the information relied upon is privileged or confidential.
e. Trust’s Right to Require Additional Evidence. The Trust may require the submission any other evidence to support or verify a Trust claim, including but not limited to additional exposure information, x-rays, laboratory tests, medical examinations or reviews, medical reports, or other medical evidence all of which must also meet the requirements of Section I (d) above.
f. Conspiracy Theory Claims Prohibited. Claims based on conspiracy theories that do not involve exposure to asbestos-containing materials sold, installed or removed by Western are not compensable under this Matrix.
Section VII. Exposure Requirements
a. Standard Exposure Criteria. Subject to Section 6.2 of the Trust Distribution Procedures, exposure to asbestos-containing material for which Western is responsible can be established by evidence described in Section I (d) and (e) above. The Trust shall have the right to consider all other appropriate evidence of exposure and may establish appropriate alternative exposure criteria after consultation with the TAC and the Futures Representative. The burden shall be on the Claimant or Injured Person to establish exposure to Western products by credible reliable evidence.
Please see the Second Amendment to and Complete Restatement of Matrix.
PLEASE TAKE NOTICE that a hearing on the motion to approve Western Asbestos Settlement Trust’s Tenth Annual Report and Accounting is scheduled for Friday, June 27, 2014 at 9:30 a.m. before United States Bankruptcy Court Judge, the Honorable Thomas E. Carlson, at the United States Bankruptcy Court for the Northern District of California, San Francisco Division, located at 235 Pine Street, San Francisco, California 94104 in Courtroom 24.
Update Regarding Submission of Claims
The Trusts have been working diligently to return to allow approved filers the ability to submit claims electronically. Although we have not yet reached this point, as of Today, April 25, 2014, the Trust itself will be able to upload claims to the claims processing system from CDs received from law firms.
New claims or deficiency responses can now be received either in paper or CD format mailed to the Trust at 300 East Second Street, Suite 1410, Reno, Nevada 89501. The electronic template, as well as the paper claim form, are located on the Trusts’ Websites under the “Claims” tab. Further, firms will need to continue to bookmark and highlight the information relied upon within the supporting documents as set forth in the claim filing instructions on the website.
All paper claims and CD format submissions will be date and time stamped when they are received at the Trusts. The Trusts will continue to maintain a master file separate from the system for each claim received, until the Trusts are back online.
The Trusts will continue to return all deficient claims or offers in paper format. You will receive a Content Deficiency Letter (CD Letter) or Release Authorization Letter (RA Letter) via US mail or other mail carrier. The Trust will not send the entire claim form or supporting documents back to the submitting firm, only the portion deemed relevant to the deficiency will be returned.
In order to cure any deficiency, you may submit a copy of the CD letter and only include the documentation necessary to cure the deficiency either in paper or CD format sent via US mail or other mail carriers. You do not need to resubmit the entire claim package.
The Trust will continue to work towards being able to receive claims in an electronic format.
NOTICE TO BENEFICIARIES AND POTENTIAL BENEFICIARIES OF THE J.T. THORPE SETTLEMENT TRUST, THORPE INSULATION COMPANY ASBESTOS SETTLEMENT TRUST, AND WESTERN ASBESTOS SETTLEMENT TRUST REPRESENTED BY MICHAEL J. MANDELBROT:
This notice concerns your claim(s) with the above-referenced Trusts (collectively, the “Trusts”), and has been authorized and approved by the United States Bankruptcy Court for the Central District of California.
Under the terms of an agreement between these Trusts and Michael Mandelbrot, and subsequent order of the Bankruptcy Court, Mandelbrot must transfer all claims for which he serves or has served as counsel to a new attorney of record by July 23, 2014.
If you chose to select new counsel to represent you, or to represent yourself in connection with your claim(s) with the Trusts, YOU MUST DO SO BY JULY 23, 2014 OR YOUR CLAIM MAY BE DEEMED WITHDRAWN. THIS MAY DELAY OR ELIMINATE YOUR RIGHTS TO PAYMENTS FROM THE TRUST(S), including initial payments and any further payments from the Trust(s) in the event of an increase in payment percentage/funds received ratio, and MAY REQUIRE ADDITIONAL FILING FEES in the event you elect to re-submit your claim following withdrawal.
YOU ARE ADVISED TO CONSULT WITH COUNSEL REGARDING THIS NOTICE.
For additional information regarding this notice, and the background giving rise to this dispute, please see the Bankruptcy Court’s Findings of Fact and Conclusions of Law, Order Following Trial, and Judgment, which have been posted on each of the Trusts’ Web sites.
As you are aware, the Trusts are having work done on their systems, which may continue for several weeks. Until further notice, all new claims or deficiency responses must be submitted by mail in paper form to the Trusts at 300 East Second Street, Suite 1410, Reno, Nevada 89501. Claims or deficiency responses that are submitted electronically (e.g. on a CD or other storage media) will not be accepted and will be returned to the sender. The reason is, that during this interim period, the Trust will not have the capacity to process claims in an electronic format. The paper claim form is located on the Trusts’ Websites under the “Claims” tab. In addition to the claim form, you will need to submit the required supporting documents, also in paper format. Further, you need to continue to bookmark and highlight the information you are relying upon within the supporting documents as set forth in the claim filing instructions on the website. One way to bookmark paper claims is to circle the information on the specific page and then place a marker or sticky tab on the relevant page. This will allow the Trusts to locate the information in an efficient manner.
All paper claim submissions will be date and time stamped as they are received at the Trusts. The Trusts will create a master file for each claim received and when the Trusts’ claims processing systems are operating, the Trust will reduce all paper submissions to an electronic format and input them into the claim processing systems as they were received.
Until further notice, the Trusts will return all deficient claims in paper format. You will receive a Content Deficiency Letter (CD Letter) via US mail or other mail carrier. The Trusts will continue to use deficiency codes and reviewer notes regarding the reason the claim is deemed deficient. The Trust will not send the entire claim form or supporting documents back to the submitting firm, only the portion deemed relevant to the deficiency will be returned.
In order to cure any deficiency, you may submit a copy of the CD letter and only include the documentation necessary to cure the deficiency in paper format sent via US mail or other mail carriers. You do not need to resubmit the entire claim package. The Trust will date and time stamp the documentation received and will add it to the claim’s master file.
The Trusts will continue to issue offers on valid claims.
Please continue to follow the current procedures and return the original signed release to the Trust via US mail or other mail carriers within the time allowed pursuant to the Trust Distribution Procedures (TDP) Section 6.3. If the Trusts find that the release is deficient, the Trusts will contact you via phone or e-mail and if necessary send a release deficiency letter.
The Trusts are working diligently to minimize the impact of requiring paper format for filing and processing claims on the payment of claims.
The Trust has hired a well-known cyber security company who was onsite at the Trusts’ physical location for three days at the end of last week. That company is now working to determine the origin of any incursion which may have happened. Preliminarily it does not appear that any data was altered or removed but final review may take several weeks as the Trusts want to be extraordinarily careful. The Trusts are having twice weekly telephone meetings with the company and hope to have information about when the system will be back up and functioning by the end of next week. In the meantime, the Trusts are working to rebuild a read-only system for the processors. This will enable the processors to look at claims already filed and determine if there are deficiencies or offers that can be sent by mail. By Friday of next week the Trusts will make a decision as to whether they need to temporarily implement a paper system for filing claims. Thank you for your patience.
Over last weekend, the Trusts experienced an incursion into their computer systems. When the incursion was discovered, the Trusts’ systems were taken off-line. At the current time, it does not appear that any claimant information was compromised or disclosed. However, the Trusts have retained experts to further evaluate the extent of the incursion. Until the Trusts’ investigation, and any remedial action is completed, the Trusts’ systems will remain off-line. Applicable statute of limitations will be tolled during the period that the Trusts’ systems are off-line, and until alternative filing procedures, if any, are in place. Any questions, should be directed to the Trusts.
The claims processing FTP server is down for maintenance. Please check back later for updates.
The Declaratory Relief Adversary Proceedings filed by the J.T. Thorpe Settlement Trust and the Thorpe Insulation Settlement Trust regarding the Trusts’ conduct in investigating Michael J. Mandelbrot and the Mandelbrot Law firm, as well as the Trusts’ Motion For Instructions Regarding (1) the Trusts’ Audit Findings Regarding Mandelbrot and (2) the Trusts’ Remedy, have been resolved by stipulation placed on the record in open court on January 23, 2014. A link to a copy of the court’s docket entry is set forth below. Findings of Fact and Conclusions of Law conforming to the stipulation are due to be filed with the court by February 11, 2014, and a tentative hearing date has been set to hear any disputes arising out of finalizing the Findings of Fact and Conclusions of Law on February 18, 2014 at 10:00 a.m. before the Honorable Sheri Bluebond, Courtroom 1475, 255 E. Temple St. 14th Floor, Los Angeles, California 90012. J.T. Thorpe Settlement Trust and the Thorpe Insulation Company Asbestos Settlement Trust vs. Michael J. Mandelbrot and the Mandelbrot Law firm, Case No. 12-ap-02182, United States Bankruptcy Court Central District of California.
Pro-Bono Evaluation Proceedings
The Trustees, with consent of the Trust Advisory Committee (“TAC”) and Futures Representative (“FR”) suspend the Phase One Pro Bono Evaluation Proceedings (Binding and Non-Binding) effective Tuesday, January 14, 2014.
Claimants who desire to exercise their right to Arbitration under Section 5.9 of the First Amendment to and Complete Restatement of the Western Asbestos Company/Western Mac Arthur Co./Mac Arthur Co. Asbestos Personal Injury Settlement Trust Distribution Procedures (“TDP”) may do so by providing the Trust’s Administrator with a written request for Arbitration within ninety (90) days of either a claim being rejected by the Trust, or a rejection by the claimant of a Trust offer. Upon receipt of a written request for Arbitration, the Trust within ten (10) days, will send to claimant an Election Form and Agreement for Binding or Non-Binding Arbitration.
If the Trust has already received an Evaluation by Document Election Agreement prior to January 14, 2014, that claim is unaffected.