PENNSYLVANIA RECORD

The federal judge presiding over the Imprelis Herbicide Marketing, Sales Practices and

Products Liability multi-district litigation has preliminarily approved of a proposed class settlement in the case.

U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, OK’d the proposed class settlement in a Feb. 11 memorandum and order.

The MDL arose out of damage claims asserted by users of DuPont’s herbicide Imprelis, which was introduced in the fall of 2010 as a herbicide designed to kill selectively unwanted weeds without harming “non-target” vegetation, but allegedly ended up causing damage to consumers’ trees.

Background information on the case shows that after widespread reports of such damage, the EPA began to investigate the product, which lead to a suspension of Imprelis sales and, ultimately a government order preventing DuPont from continuing to sell the herbicide.

In September 2011, DuPont created its own claim resolution process to compensate for Imprelis damage, although the lawsuits continued to pour in, alleging consumer fraud and consumer protection violations, breach of express and implied warranties, negligence, strict products liability, and nuisance and trespass claims.

Pratter’s memorandum shows that the proposed settlement terms came after months of discussions and negotiations.

Under the proposed settlement, class members will receive a warranty on replacement trees, DuPont will remove damaged trees or provide compensation for their removal, and the company will pay each property owner class member certain tree care and maintenance payments, as well as an additional payment for incidental damages in an amount equal to 15 percent of the total value of the other payments and services provided to that class member under the settlement, court papers state.

If class members disagree with the settlement amount offered, they can appeal the offer to a panel of arborists.

Lastly, property owner class members will not be releasing any claims for environmental or personal injury damages by participating in the settlement, the court record states.

Pratter’s memorandum notes that by participating in the proposed settlement, applicators will not release their rights to recover for lost profits or from damages arising from suits brought against them by third parties relating to Imprelis.

Members of the Self Applicator Class will receive all the benefits provided to members of the Property Owner Class, plus reimbursement for time and expenses spent investigating and documenting Imprelis damage, subject to a $2,000 maximum for such reimbursement claims, the judge stated in her memorandum.

The settlement also provides that all notice and claims administration expenses related to the settlement will be paid by DuPont, and further that attorneys’ fees, which the plaintiffs’ counsel will seek in an amount not to exceed $6.5 million in fees and $500,000 in costs, will also be paid by DuPont and not be deducted from any funds earmarked for class members.

The proposed settlement also includes certain bonus payments for class representatives for service to the class, ($1,500 for individual property owners and $2,500 for commercial entities, and that those amounts will not detract from other class funds.

“At this preliminary stage, there is little disputing that the proposed settlement easily passes the reasonableness test,” Pratter wrote in her memorandum. “The settlement was reached as a result of arms’ length discussions over a period of several months.”

Pratter wrote that although a detailed discussion of the actual terms of the settlement agreement is more appropriate at the final approval stage, “the settlement program appears to reflect a meaningful attempt to make property owners quite close to whole for the damage caused to them.”

Pratter ordered the parties to file a motion for final approval of the settlement no later than Aug. 7.