Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 1 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 1 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 90-cv JLK MERILYN COOK, RICHARD and SALLY BARTLETT, and WILLIAM and DELORES SCHIERKOLK, v. Plaintiffs, ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMPANY, Defendants. PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR MOTION FOR FINAL APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION

2 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 2 of 36 TABLE OF CONTENTS I. INTRODUCTION...1 II. BACKGROUND...3 III. THE SETTLEMENT AGREEMENT...10 IV. THE PROPOSED SETTLEMENT SHOULD BE FINALLY APPROVED...14 A. The Settlement Is Fair, Reasonable, and Adequate and Should Be Approved The Proposed Settlement Was Fairly And Honestly Negotiated Serious Disputed Questions of Law and Fact Remain The Value of an Immediate Recovery Outweighs the Possibility of Future Relief After Further Litigation Plaintiffs Believe the Settlement is Fair and Reasonable The Long Duration of This Litigation and Aging Class Members Further Supports Approval The Class s Overwhelmingly Positive Reaction to the Settlement Supports Approval...21 V. THE COURT SHOULD APPROVE PLAINTIFFS PROPOSED PLAN OF ALLOCATION...27 VI. CONCLUSION...29 i

3 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 3 of 36 TABLE OF AUTHORITIES Cases Page(s) Alvarado Partners v. Mehta, L.P. 723 F. Supp. 540 (D. Colo. 1989)... 15, 20 Belote v. Rivet Software, Inc., No. 12-CV WYD-MJW, 2014 WL (D. Colo. Aug. 11, 2014)... 15, 27 Cook v. Rockwell Int l, 133 S. Ct. 22 (U.S. Jun. 25, 2012)... 6 Cook v. Rockwell Int l, 13 F. Supp. 3d 1153 (D. Colo. 2014)... 6 Cook v. Rockwell Int l, 151 F.R.D. 378 (D. Colo. 1993)... 4, 5 Cook v. Rockwell Int l, 564 F. Supp. 2d 1189 (D. Colo. 2008)... 5 Cook v. Rockwell Int l, 618 F.3d 1127 (10th Cir. 2010)... 5, 6 Cook v. Rockwell Int l, 790 F.3d 1088 (10th Cir. 2015)... 7 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935 (10th Cir. 2005) Diaz v. Romer, 801 F. Supp. 405 (D. Colo. 1992) Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010) Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993)... 14, 15 Grady v. de Ville Motor Hotel, Inc., 415 F.2d 449 (10th Cir. 1969) Gould v. Alleco, Inc., 883 F.2d ii

4 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 4 of 36 Heller v. Quovadx, Inc., 245 F. App x 839 (10th Cir. 2007) Hershey v. ExxonMobil Oil Corp., No. 07-CV-1300-JTM, 2012 WL (D. Kan. Oct. 26, 2012) In re Crocs, Inc. Sec. Litig., No. 07-CV PAB-KLM, 2013 WL (D. Colo. Aug. 28, 2013) In re Crocs, Inc. Sec. Litig., 306 F.R.D. 672 (D. Colo. 2014) In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y. 2009) In King Res. Co. Sec. Litig., 420 F. Supp. 610 (D. Colo. 1976)... 14, 19 In re Motor Fuel Tempure Sales Practices Litig., No. 07-MD-1840-KHV, 2015 WL , (D. Kan. Aug. 21, 2015) In re New Mexico Nat. Gas Antitrust Litig., 607 F. Supp (D. Colo. 1984)... 2, 15, 27 In re Qwest Commc ns Int l, Inc. Sec. Litig., 625 F. Supp. 2d 1133 (D. Colo. 2009) In re Qwest Commc ns Int l, Inc. Sec. Litig., No. 01-cv-01451, 2006 U.S. Dist. LEXIS (D. Colo. Sept. 28, 2006) In re Toys R Us Antitrust Litig., 191 F.R.D. 347 (E.D.N.Y 2000) Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322 (10th Cir. 1984)... passim Law v. Nat l Collegiate Athletic Ass n, 108 F. Supp. 2d 1193 (D. Kan. 2000) Lucas v. Kmart Corp., 234 F.R.D. 688 (D. Colo. 2006)... passim Lucas v. Kmart Corp., No. 99-cv-01923, 2006 U.S. Dist. LEXIS (D. Colo. Jul. 27, 2006) Make A Difference Found., Inc. v. Hopkins, No. 10-CV WJM-MJW, 2012 WL (D. Colo. Mar. 19, 2012)... 15, 27 iii

5 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 5 of 36 Marcus v. Kansas Dept. of Revenue, 209 F. Supp. 2d 1179 (D. Kan. 2002) Mohammed v. Ells, No. 12-CV-1831-WJM-MEH, 2014 WL (D. Colo. Aug. 26, 2014)... 15, 27 Nieberding v. Barrette Outdoor Living, Inc., No. 12-CV-2353-DDC-TJJ, 2015 WL (D. Kan. Apr. 14, 2015) Oppenlander v. Stand. Oil Co. (Indiana), 64 F.R.D. 597 (D. Colo. 1974)... 15, 20, 27 Ponca Tribe of Indians of Oklahoma v. Contl. Carbon Co., No (C), 2009 WL (W.D. Okla. Jul. 30, 2009)... 15, 27 Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10th Cir. 2002)... passim Seiffer v. Topsy s Int l, Inc., 70 F.R.D. 622 (D. Kan. 1976) Smith v. MCI Telecomms. Corp., No EEO, 1993 WL (D. Kan. Apr. 28, 1993) Sollenbarger v. Mountain States Tel. and Tel. Co., 121 F.R.D. 417 (D.N.M.1988) Tennille v. W. Union Co., 785 F.3d 422 (10th Cir. 2015) Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003 (D. Colo. 2014)... 14, 15, 16, 27 Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273 (D. Colo. 1997)... 14, 15, 27 Williams v. First Nat l Bank, 216 U.S. 582 (1910) Rules Fed. R. Civ. P , 18 Fed. R. Civ. P. 23(b)(3)... 4 Fed. R. Civ. P. 23(c)(2)(B) Fed. R. Civ. P. 23(e)(1) iv

6 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 6 of 36 I. INTRODUCTION Class representatives Merilyn Cook, Richard and Sally Bartlett, and William and Delores Schierkolk 1 (collectively, Plaintiffs or Class Representatives ) submit this Memorandum in support of their Motion seeking: (a) final approval of a proposed Settlement Agreement between Plaintiffs and Rockwell International Corporation ( Rockwell ) and The Dow Chemical Company ( Dow ) (collectively, Defendants ), dated May 18, 2016 ( Settlement Agreement, which is attached as Exhibit 1 and was previously filed at Doc. No. 2401); and (b) final approval of the proposed Plan of Allocation of the Settlement Fund (which is attached as Exhibit 2, and was previously filed at Doc. No ). The proposed $375 million Settlement is an extraordinary result for the Class. 2 Indeed, not one class member has objected to the fairness of the proposed Settlement 3 following a comprehensive notice program that included 28,179 individually mailed notices, plus an extensive publication notice campaign that included: (1) an informational settlement website ( on which the Settlement Agreement itself, a copy of the 1 Delores Schierkolk is deceased, but William Schierkolk is her heir and representative. 2 The Class, Settlement Class, or Property Class includes all persons and entities who have not previously opted out and who do not timely opt out of the class who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants affiliates, parents, and subsidiaries. See Order Certifying Settlement Class, Doc. No. 2396, at 1-2. The Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in Colorado; its boundary is portrayed in the map attached as the corrected Appendix A to the Order Certifying Settlement Class, Doc. No See Order Granting Plaintiffs Unopposed Motion for Amendment or Correction of the Court s Order Certifying Settlement Class, Doc. No The persons and entities who previously opted out, and thus excluded from the Settlement Class, are identified in the Report of Neutral Opt-Out Agent; Motion for Order and Payment of Fees; and Motion for Order Regarding Transition Procedures, filed on March 17, 2000 at Doc. No One Class Member objected to Plaintiffs motion for attorneys fees, costs and expenses. See Doc. No We will respond to that objection separately. Also, another person objected to not being included in the Class, see Doc No. 2421, but as discussed below, non-class members have no standing to object (and this individual did not object to the fairness of the Settlement itself in any event).

7 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 7 of 36 mailed notice and claim form and other important Court documents are posted; (2) a toll-free information phone line for Class members to call 24 hours a day, 7 days a week for more information about the Settlement, including but not limited to requesting copies of the Notice and Claim Form; (3) publication of the Court-approved short-form notice ( Summary Notice ) in nationally circulated consumer magazines; (4) publication of the Court-approved Summary Notice in Denver and Colorado newspapers; (5) television commercials aired nationwide on cable networks; (6) television and radio commercials aired on network affiliate and cable networks in the Denver DMA; (7) online display banner advertising with a nationwide reach; (8) online video advertising with a nationwide reach; (9) advertising on mobile websites and applications specifically targeted to reach potential Class members; (10) social media advertising through Facebook and Twitter with a nationwide reach; (11) native advertising on premium internet properties with a nationwide reach; (12) third party outreach to a community action group, Downwinders, and medical providers asking them to share and distribute the Summary Notice; and (13) a multimedia press release issued nationwide. See Declaration of Jeanne C. Finegan, APR Concerning Implementation and Adequacy of Class Member Notification (Doc. No. 2432), at e.g., 6. The reaction of the class to a settlement is a factor for courts to consider in granting final approval. See, e.g., In re New Mexico Nat. Gas Antitrust Litig., 607 F. Supp. 1491, 1504, (D. Colo. 1984). The strong positive reaction of this Class to this Settlement speaks loudly and decisively. The Settlement Agreement was entered into after more than 26 years of litigation, including a trial that lasted more than four months in , two separate appeals in the Tenth Circuit Court of Appeals, and two rounds of briefing in connection with two separate petitions for writs of certiorari seeking review by the United States Supreme Court. Final approval of the 2

8 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 8 of 36 Settlement Agreement would be the final chapter in what has been, by any measure, an exceptionally long, complex, and hard-fought case that carried substantial risk for the Class. Viewed in light of the long history of the litigation, and the risks that remained at the time of settlement, a cash settlement of $375 million, which will substantially exceed the jury s award of compensatory damages even after deducting all costs, expenses and fees awarded, 4 represents an extraordinary result for the Class. As Plaintiffs have previously advised the Court, Defendants have deposited the entire $375 million in settlement consideration into the Court-approved Escrow Account. See Doc. Nos. 2437, For the reasons set forth below, the Settlement Agreement meets and exceeds the standards for final approval set forth by Rule 23 and the Tenth Circuit. Plaintiffs also request that the Court grant final approval of the proposed Plan of Allocation, which the Court previously preliminarily approved. See Doc. No. 2407, at Plaintiffs conferred with Defendants in accordance with the United States District Court for the District of Colorado Local Rule 7.1(a). Defendants do not oppose this motion. II. BACKGROUND Plaintiffs filed their initial complaint more than 27 years ago, on January 30, 1990, asserting Colorado nuisance and trespass claims, as well as claims under the federal Price- Anderson Act ( PAA ), arising from Defendants releases of plutonium from the former Rocky Flats nuclear weapons production plant. In 1993, the District Court certified the Property 4 The jury awarded compensatory damages of $176,850,340 on Plaintiffs nuisance claims. See Jury Verdict Form, Doc. No at The Court previously appointed The Huntington National Bank as Escrow Agent. Order Appointing The Huntington National Bank as Escrow Agent, Doc. No

9 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 9 of 36 Class pursuant to Fed. R. Civ. P. 23(b)(3), defined as [a]ll persons and entities owning an interest (including mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants affiliates, parents, and subsidiaries as of June 7, 1989 (the day after the FBI raid of Rocky Flats). See Cook v. Rockwell Int l, 151 F.R.D. 378, 389 (D. Colo. 1993) ( Cook IV ). Many years of contentious discovery and motion practice followed, involving multiple motions to compel and even a four-day evidentiary hearing and contempt sanction against the U.S. Department of Energy ( DOE ), Defendants indemnitor. All told, the parties exchanged 67 expert reports, participated in 45 expert depositions (spanning 53 days in total) and 151 lay and 30(b)(6) witness depositions, and produced and reviewed over 800 boxes of documents. Over the next decade and beyond, Defendants repeatedly sought to convince the Court to overturn or modify its many rulings, including its class certification decision(s), and the parties engaged in additional extensive motion practice and attempted to narrow the legal issues for trial. 6 After the Court denied Defendants motions for class decertification, motions for summary judgment, and Daubert motions, and after extensive pretrial briefing on the proposed jury instructions, motions in limine, and numerous other issues, the Court conducted a fourmonth jury trial, which commenced on October 6, See Doc. No During the trial, the jury heard testimony from five Class Representatives, 15 lay witnesses, and 19 experts, plus two witnesses who testified by deposition designation, and saw hundreds of exhibits and 6 The history of this extraordinary case is summarized in more detail in the Declaration of Merrill G. Davidoff in Support of Class Counsel s Motion for An Award of Attorneys Fees, Reimbursement of Expenses, and Service Payments to Class Representatives, Doc. No (the Davidoff Declaration ), to say nothing of the 15 published opinions by this Court and two by the Tenth Circuit (all collected and previously submitted as Doc. No ), together with many other unpublished opinions and orders. 4

10 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 10 of 36 demonstratives. 7 Davidoff Declaration, at , 162. After deliberating for seventeen days, the jury returned a verdict on February 14, 2006, finding for Plaintiffs and the Class on their nuisance and trespass claims and awarding compensatory damages to the Class for properties in each of three categories residential, commercial, and vacant land and awarding punitive damages against both Defendants. See Jury Verdict Form, Doc. No For each of the three categories of properties, the jury found a specific percentage diminution in value that was caused by the nuisance and trespass: 53.03% for commercial properties; 7% for residential properties; and 30% for vacant land. See id. at 24. With respect to Plaintiffs nuisance claims, the jury found that Defendants caused a reduction in the aggregate value of the Class Properties of $176,850,340. Id. at 15, 24. Based on their findings of diminished value for each property category, the jury awarded 3.196% of the total compensable nuisance damages for commercial properties; % for residential properties; and % for vacant land. See id. at 24. After the trial, the District Court denied Defendants motions requesting that the District Court enter judgment in favor of Defendants or order a new trial, and in 2008, the District Court entered final judgment in favor of Plaintiffs. See Cook v. Rockwell Int l, 564 F. Supp. 2d 1189 (D. Colo. 2008) ( Cook XIV ); Final Judgment, Doc. No Defendants appealed, and the Tenth Circuit Court of Appeals in 2010 vacated the judgment. Adopting a new argument the Defendants raised for the first time on appeal, the Tenth Circuit held that the PAA required Plaintiffs to prove additional and more severe harm than would be required under Colorado state nuisance law. See Cook v. Rockwell Int l, 618 F.3d 1127, 1153 (10th Cir. 2010) ( Cook Appeal I ). The Tenth Circuit vacated the award of punitive 7 One expert witness, Mr. Flynn, testified live but became ill during the trial and was unable to continue. The Court allowed Plaintiffs to use deposition designations in lieu of his live testimony. Davidoff Decl In the totals above, only his live trial testimony is counted. 5

11 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 11 of 36 damages and reversed the District Court s class certification ruling in light of its holding that the PAA required Plaintiffs to prove additional and more severe harm than required under Colorado state nuisance law. Id. at The Tenth Circuit found, however, that [t]he jury was properly instructed on elements of a [state] nuisance claim as well as the definitions of substantial and unreasonable. Id. at Plaintiffs then filed a petition for a writ of certiorari requesting that the United States Supreme Court review Cook Appeal I, which was denied. 133 S. Ct. 22 (U.S. Jun. 25, 2012) (No ). On remand, the District Court directed the parties to submit briefs about the issue of whether Plaintiffs nuisance claims were preempted by the PAA. Plaintiffs argued that their claims under Colorado nuisance law were not preempted, Defendants argued the opposite, and this Court ruled in favor of Defendants, finding that Plaintiffs state law nuisance claims were preempted by the PAA, and that Plaintiffs could not pursue their case other than by trying to recover under the PAA (with the extra requirements imposed by the Tenth Circuit Court of Appeals in Cook Appeal I). Cook v. Rockwell Int l, 13 F. Supp. 3d 1153, (D. Colo. 2014) ( Cook XV ). In order to facilitate an immediate appeal, Plaintiffs stipulated to judgment in favor of Defendants and agreed not to pursue any claims under the Price-Anderson Act unless Cook Appeal I were to be overturned or modified. See Doc. No Plaintiffs then appealed this Court s preemption ruling to the Tenth Circuit, which reversed, holding that the PAA does not preempt and preclude a freestanding state law nuisance claim when a nuclear incident is alleged but unproven, and further determining that the Tenth Circuit in Cook Appeal I did not specifically preclude the district court from entering a new judgment predicated on an error-free 6

12 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 12 of 36 state law nuisance verdict. Cook v. Rockwell Int l, 790 F.3d 1088, 1103 (10th Cir. 2015) ( Cook Appeal II ). The Tenth Circuit remanded to this Court, directing the Court to proceed to judgment on the existing nuisance verdict promptly, consistent with resolving the outstanding class action question, wary of arguments that have already been rejected or forfeited. Id. at Defendants subsequently filed a petition for certiorari seeking Supreme Court review of Cook Appeal II, No (U.S. Dec. 17, 2015), and Plaintiffs filed an opposition and conditional cross-petition seeking review of Cook Appeal I in the event the Supreme Court were to accept review of Cook Appeal II. No (U.S. Jan. 15, 2016). Despite the Tenth Circuit s remand order, substantial legal obstacles and risks remained. On August 4, 2015, Plaintiffs filed a Motion for Entry of Judgment for the nuisance verdict, and filed a Corrected Motion for Entry of Judgment on August 26, 2015 and sought re-certification of the class. Defendants vigorously opposed these motions. On September 10, 2015, Defendants filed four separate briefs: (1) opposing class certification based on their argument that the injury and damages evidence presented at trial was not sufficiently class-wide; (2) arguing that allegedly applicable numerical federal nuclear standards conflicted with and preempted Colorado tort law, precluding entry of judgment on the prior jury verdict; (3) arguing that the Tenth Circuit had not addressed certain alleged trial errors involving admission of evidence that tainted the jury s verdict; and (4) disputing the Plaintiffs calculation of pre- and post-judgment interest. See Doc. Nos. 2373, 2374, 2376, Also on September 10, 2015, Defendants filed a separate Motion re Standards requesting that the Court set aside the jury verdict because the alleged numerical federal nuclear standards discussed in Part Two of Defendants four-part opposition briefing preempted any Colorado tort law duties of care. Doc. No. 2378, at 1. On October 23, 7

13 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 13 of , Plaintiffs opposed Defendants Motion re Standards and filed reply briefs addressing Defendants oppositions to Plaintiffs Motion for Entry of Judgment. See Doc. Nos. 2381, 2382, 2383, The parties competing motions regarding the entry of judgment were fully briefed and awaiting decision by the Court at the time the Settlement was reached. Following Cook Appeal II, the parties engaged in settlement discussions with the assistance of a mediator, the Honorable Layn Phillips, a former United States District Judge. After months of extensive negotiations, on May 18, 2016, the parties executed a Settlement Agreement, jointly notified the United States Supreme Court of the Settlement, and stipulated to dismissal of the pending petitions for certiorari. 8 This Settlement Agreement is the product of extensive arm s-length settlement negotiations over more than seven months by counsel for both sides that were fully conversant with the extensive history of this case and the risks (including risks of additional substantial delay) that lay ahead. On May 18, 2016, the day the Settlement Agreement was executed, Plaintiffs filed a Stipulation re Certification of Settlement Class (Doc No. 2393) and an Unopposed Motion for Certification of the Settlement Class (Doc. Nos ). The Court certified the Settlement Class pursuant to Rule 23(a) and Rule 23(b)(3) on May 19, Order Certifying Settlement Class, Doc. No Plaintiffs filed a Notice of Filing of Settlement Agreement, attaching a copy of the Settlement Agreement, on May 23, Doc. No On July 15, 2016, Plaintiffs filed their Motion for Preliminary Approval of Proposed Class Action Settlement, Approval of Proposed Plan of Allocation of the Settlement Fund, Approval of Proposed Forms and Manner of Notice to the Class, Approval of Proposed Claim 8 See Stipulation to dismiss the petition for a writ of certiorari, Case No (U.S. May 19, 2016) (docket available at On May 19, 2016, the Supreme Court dismissed the petitions. Id. 8

14 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 14 of 36 Form, Appointment of Escrow Agent, Appointment of Settlement and Claims Administrator, and Approval of Proposed Schedule, with an accompanying memorandum in support and related materials. See Doc. Nos Defendants filed a response to this motion on July 25, 2016 (Doc. No. 2410), and the Court held a hearing on the motion for preliminary approval on August 4, 2016 (see Doc. No. 2415). On August 5, 2016, the Court granted Plaintiffs motion, and issued an Order Granting Preliminary Approval of Proposed Class Action Settlement, Preliminary Approval of Proposed Plan of Allocation, Approval of Proposed Forms and Manner of Notice to the Class, Approval of Proposed Claim Form, and Approval of Proposed Schedule (Doc. No. 2416); an Order Appointing the Heffler Claims Group as Settlement and Claims Administrator (Doc. No. 2417); and an Order Appointing the Huntington National Bank as Escrow Agent (Doc. No. 2418). Plaintiffs motion and accompanying materials, and the Court s Orders, are publicly available on the Court-approved official settlement website ( As set forth more fully in the Declaration of Jeanne C. Finegan, APR Concerning Implementation and Adequacy of Class Member Notification (Doc. No. 2432), the Courtappointed Settlement and Claims Administrator, Heffler Claims Group, successfully and timely implemented the Court-approved Notice Plan. See id., at 4. The Notice Plan was substantially completed by November 28, Id. According to the Settlement and Claims Administrator s analysis of the media delivery components of the Notice Plan (print, television, radio and internet banner advertisements), the Notice Plan reached an estimated 96 percent of Denver area residents and 84 percent of the target audience nationwide. Id. On January 12, 2017, Plaintiffs filed Class Counsel s Motion for Award of Attorneys Fees, Reimbursement of Litigation Expenses, and Award of Service Payments to Class 9

15 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 15 of 36 Representatives, with accompanying declarations and exhibits. Doc. Nos These materials were uploaded shortly after filing to the Court-approved official settlement website ( Most recently, as part of Plaintiffs continued efforts to represent the Class and to protect the Class from misleading and coercive communications, on February 13, 2017, Plaintiffs filed a motion to bar a third-party claims processor s misleading communications with the Class and require that any future communications by claims processors include certain disclosures and receive Court approval. Doc. No The Court granted Plaintiffs motion on February 14, Doc. Nos & The Court subsequently denied the third-party claims processor s motion for approval of its proposed communications with members of the Class, which motion Plaintiffs opposed. Doc. No A new motion by that third party processor is pending, to which Plaintiffs will respond on or before April 10, The Settlement and Claims Administrator also added to the official settlement website a warning about solicitation of Class members by Optimal Settlements, LLC or other claims administrators. See Finally, pursuant to the Court s March 3, 2017 Order (Doc. No. 2449), on March 9, 2017, Heffler mailed out 25,272 reminder notices to potential Class members reminding them of the June 1, 2017 deadline to file claims. See Doc. No. 2452, at 2; Declaration of Edward J. Radetich Jr., Heffler Claims Group, In Support of Plaintiffs Motion for Final Approval of Proposed Class Action Settlement and Approval of Proposed Plan of Allocation of the Settlement Fund ( Heffler Decl. ) (attached as Exhibit 3), at 6 (filed herewith). III. THE SETTLEMENT AGREEMENT The Settlement provides an extraordinary monetary payment to the Class in exchange for a Class-wide release. 10

16 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 16 of 36 The Class receives $375 million in cash from Defendants and/or their indemnitor, the DOE. Settlement Agreement, 2(c). Dow s payment obligation is $131,250,000 (35% of the Settlement amount), and Rockwell s is $243,750,000 (65% of the Settlement amount). Id. On June 1 and 2, 2016 Defendants paid a total of $2.5 million into an independent escrow account pursuant to Settlement Agreement, 2(a), for notice and administration costs incurred in connection with the final approval of the settlement. Id. If the actual costs of notice and administration incurred prior to final settlement approval exceed $2.5 million, this amount will be replenished and made available to Plaintiffs upon a showing of good cause, up to a maximum of $10 million. Id. The Settlement required Defendants to pay the remainder of the $375 million settlement on or before July 28, 2017 (id. 2(c)). As Plaintiffs have advised the Court, Defendants have already deposited the balance of the $375 million owed under the Settlement Agreement into the Escrow Account. See Doc. Nos. 2437, The Settlement Agreement, if approved, will be binding on Defendants, Plaintiffs, and the Class, which is defined as all persons and entities who have not previously opted out or who do not timely opt out of the class and who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area (defined below), exclusive of governmental entities, Defendants, and Defendants affiliates, parents, and subsidiaries. See Order Certifying Settlement Class, Doc. No. 2396, at 1-2. The Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in 11

17 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 17 of 36 Colorado; its boundary is portrayed in the map attached to the Order Certifying Settlement Class as Appendix A. Id. 9 Settlement Class Members means each and every member of the Settlement Class. Class Counsel means counsel for the Class Representatives and Settlement Class Members. Defendants have stipulated to certification of the Settlement Class, subject to the reservation of rights stated in Paragraph 17 of the Settlement Agreement and contained in the separate stipulation. Settlement Agreement, 1; see also Stipulation re Certification of Settlement Class, Doc. No Excluded from the Class are governmental entities, Defendants, and Defendants affiliates, parents, and subsidiaries. Settlement Agreement, 1; Stipulation re Certification of Settlement Class, Doc. No. 2393, at 3. The Settlement Agreement provides for the release of Defendants and any past, present and future parents, subsidiaries, divisions, affiliates, joint ventures, stockholders, officers, directors, management, supervisory boards, insurers, indemnitors (including the United States Department of Energy or DOE ), general or limited partners, employees, agents, trustees, associates, attorneys and any of their legal representatives or any other representatives thereof (and the predecessors, heirs, executors, administrators, successors and assigns of each of the foregoing) (the Released Parties ) from any and all manner of claims, rights, debts, obligations, demands, actions, suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, including costs, expenses, penalties and attorneys fees, accrued in whole or in part, in law or equity, that the Plaintiffs and Settlement Class Members (including any of their past, present or future officers, 9 See corrected Appendix A to the Order Certifying Settlement Class, Doc. No See also Order Granting Plaintiffs Unopposed Motion for Amendment or Correction of the Court s Order Certifying Settlement Class, Doc. No

18 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 18 of 36 directors, insurers, general or limited partners, divisions, stockholders, agents, attorneys, employees, legal representatives, trustees, parents, associates, affiliates, joint ventures, subsidiaries, heirs, executors, administrators, predecessors, successors and assigns, acting in their capacity as such) (collectively the Releasors ) ever had, now have or hereafter can, shall or may have, directly, representatively, derivatively or in any other capacity, arising out of or relating in any way to the Released Parties conduct in connection with Rocky Flats, including without limitation any claim that was alleged or could have been alleged in this suit (the Released Claims ), except that the Settlement Class Members and the Plaintiffs do not release claims for actual bodily injury, nor claims unrelated to the allegations in the complaint such as pension, or product liability or contract claims or claims of former Rocky Flats workers under Workman s Compensation or similar laws or regulations. Settlement Agreement, 7. Releasors also covenant and agree that each shall not sue or otherwise seek to establish or impose liability against any Released Party based, in whole or in part, on any of the Released Claims, regardless of whether or not any Releasors objected to the Settlement. Id. The entire Settlement is subject to Court approval, and could be deemed canceled and rescinded if the Settlement Agreement cannot be finalized as provided in Paragraph 3(d) of the Settlement Agreement. Settlement Agreement The Settlement Agreement provided that Defendants would have the right to rescind the Settlement Agreement if more than a specified percentage of Class members timely opt out of the Class (id.) but this condition was not met. The Court s March 1, 2017 deadline for Class members to timely opt out of the Class has passed, and only three Class members have opted out, fewer than the specified percentage of Class members required to give Defendants the right to rescind the Settlement Agreement. See Settlement Agreement, at 10 & Ex. D. 13

19 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 19 of 36 IV. THE PROPOSED SETTLEMENT SHOULD BE FINALLY APPROVED A. The Settlement Is Fair, Reasonable, and Adequate and Should Be Approved Approval of a proposed settlement is within the sound discretion of the Court. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002); Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984). Nonetheless, there is a strong judicial policy in favor of class action settlement that contemplates a circumscribed role for the district courts in settlement review and approval proceedings. Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1007 (D. Colo. 2014) (citing Ehrheart v. Verizon Wireless, 609 F.3d 590, 594 (3d Cir. 2010)). Settlement agreements are to be encouraged because they promote the amicable resolution of disputes and lighten the increasing load of litigation faced by the federal courts. Id. A class action settlement must be approved under Rule 23(e) of the Federal Rules of Civil Procedure if it is fair, reasonable and adequate. Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir. 1993); Jones, 741 F.2d at The Tenth Circuit has identified four factors that a district court should consider in assessing whether a proposed class action settlement is fair, reasonable and adequate: (1) whether the proposed settlement was fairly and honestly negotiated; 11 Courts have long held that the settlement of disputed claims is favored as a public policy matter, see, e.g., Williams v. First Nat l Bank, 216 U.S. 582, 595 (1910); Grady v. de Ville Motor Hotel, Inc., 415 F.2d 449, 451 (10th Cir. 1969), particularly in the context of class action litigation. See Diaz v. Romer, 801 F. Supp. 405, 407 (D. Colo. 1992) (in approving class action settlement, court explained that a consensual resolution of a dispute is always preferred ). For that reason, in evaluating the fairness of the Settlement, this Court should neither decide the merits of the cases nor substitute its judgment for that of the parties who negotiated the settlement. See Lucas v. Kmart Corp., No. 99-cv-01923, 2006 U.S. Dist. LEXIS 51439, at *23 (D. Colo. Jul. 27, 2006) ( [I]t is not the role of the Court at [the settlement] stage of the litigation to evaluate the merits ) (citing Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D. Colo. 1997)); see also In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 625 (D. Colo. 1976) (the court need not, and should not, decide the merits of the controversy ). 14

20 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 20 of 36 (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable. Gottlieb, 11 F.3d at 1014; Jones, 741 F.2d at 324; see also Rutter, 314 F.3d at 1188 (affirming test); In re Qwest Commc ns Int l, Inc. Sec. Litig., No. 01-cv-01451, 2006 U.S. Dist. LEXIS 71039, at *15 (D. Colo. Sept. 28, 2006) (also affirming test); Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540, (D. Colo. 1989) (applying settlement approval factors to securities class action). 12 In addition, the number of substantive objections to a settlement here there are none is a factor courts consider when assessing whether a proposed class action settlement is fair, reasonable and adequate. See, e.g., Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1008 (D. Colo. 2014) (in reviewing a proposed class settlement under the Gottlieb factors, [t]he Court may also consider the fact that no objections were filed by any Class Members. ) (granting final approval) Where relevant, courts in this Circuit also consider: (i) the risk of establishing damages at trial; (ii) the extent of discovery and the current posture of the case; (iii) the range of possible settlement; and (iv) the reaction of Class Members to the proposed settlement. In re N.M. Natural Gas Antitrust Litig., 607 F. Supp. 1491, 1504 (D. Colo. 1984); Wilkerson, 171 F.R.D. at 284 (citing In Re New Mexico Nat. Gas Antitrust Litig., 607 F.Supp. 1491, 1497 (D.Colo.1984)). 13 See also Mohammed v. Ells, 12-CV-1831-WJM-MEH, 2014 WL , at *4 (D. Colo. Aug. 26, 2014) ( [T]he fact that no objections to the settlement were filed by any shareholder weighs heavily in favor of approval of the derivative litigation settlement. ); Oppenlander v. Stand. Oil Co. (Indiana), 64 F.R.D. 597, 627 (D. Colo. 1974) ( It is significant that only one shareholder out of thousands filed a written objection to the Settlement Agreement. ); Ponca Tribe of Indians of Oklahoma v. Contl. Carbon Co., (C), 2009 WL , at *1 (W.D. Okla. Jul. 30, 2009) (approving class settlement and noting that [n]o substantive objections were filed to the settlement... [and] there were eight (8) opt outs out of approximately 1,800 Class Members ); Belote v. Rivet Software, Inc., 12-CV WYD-MJW, 2014 WL , at *4 (D. Colo. Aug. 11, 2014) (noting that the fact that no substantive objections were filed indicat[e] that the Class Members do not oppose the settlement ); Make A Difference Found., Inc. v. Hopkins, 10-CV WJM-MJW, 2012 WL , at *3 (D. Colo. Mar. 19, 2012) ( the fact that only three conclusory written objections to the settlement were received and no objectors appeared at the settlement hearing, despite the fact that notice of the settlement was sent to more than 47,000 record holders of Oilsands stock, weighs heavily in favor of approval of the derivative litigation settlement. ). 15

21 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 21 of 36 Consideration of each factor supports approval. 1. The Proposed Settlement Was Fairly And Honestly Negotiated Courts are required to analyze whether the proposed settlement was fairly and honestly negotiated. Jones, 741 F.2d at 324; Rutter, 314 F.3d at Courts may presume the settlement to be fair, adequate, and reasonable where it results from arm s length negotiations between experienced counsel after significant discovery had occurred. Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) (citation omitted); see also United Airlines, Inc., 41 F. Supp. 3d at 1011 ( arms-length negotiations between experienced counsel where counsel undertook voluntary discovery, negotiated over a methodology for estimating damages, and retained an expert to calculate the damages... show[] that the Settlement was fairly and honestly negotiated ). Here, the Settlement Agreement was reached after far more than significant discovery the parties entered into the Settlement Agreement after more than 26 years of litigation, including complete discovery, extensive briefing, a jury trial lasting more than 4 months, two separate appeals in the Tenth Circuit Court of Appeals, and two rounds of briefing in connection with two separate petitions for writs of certiorari seeking review by the United States Supreme Court. After litigating this case for decades, through lengthy and extensive discovery, trial, and two appeals, Plaintiffs and Class Counsel certainly possessed the desired quantum of information necessary to achieve a settlement. Cotton v. Hinton, 559 F.2d 1326, 1332 (5th Cir. 1977). The Settlement Agreement resulted from extensive arm s-length settlement negotiations over more than seven months between counsel for Plaintiffs and counsel for Defendants. The settlement discussions were conducted with the assistance of a mediator, the Honorable Layn 16

22 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 22 of 36 Phillips, a former United States District Judge, a fact which weighs in favor of settlement. 14 There has been no suggestion, nor could there be, that Class Counsel and counsel for Defendants did not negotiate in earnest and at arm s length. The $375 million that has already been deposited into the Escrow Account by Defendants is a testament to Class Counsel s vigorous representation of the Class throughout the settlement negotiations and throughout decades of hard-fought litigation, including during the ten months since the Settlement Agreement was executed. See generally Lucas, 234 F.R.D. at 693 (holding that the settlement agreement was fairly and honestly negotiated where the parties to this litigation have vigorously advocated their respective positions throughout the pendency of the case. ) (internal quotations and citation omitted). 2. Serious Disputed Questions of Law and Fact Remain The Court should also consider whether serious legal and factual questions placed the litigation s outcome in doubt. Tennille v. W. Union Co., 785 F.3d 422, 434 (10th Cir. 2015); see also Jones, 741 F.2d at 324; Rutter, 314 F.3d at Here, Plaintiffs and the Class faced significant risks. When the Settlement Agreement was signed on May 18, 2016, the District Court had not yet addressed any of the four arguments Defendants raised in opposition to Plaintiffs Motion for Entry of Judgment. Defendants argued that: (1) class certification was not appropriate under Fed. R. Civ. P. 23; (2) alleged numerical federal nuclear standards preempt Plaintiffs Colorado nuisance claims; (3) the District Court erred at trial by allowing irrelevant and prejudicial 14 See In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y. 2009). See also Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001); In re Toys R Us Antitrust Litig., 191 F.R.D. 347, 352 (E.D.N.Y 2000). In addition, protracted, difficult settlement negotiations signify the absence of collusion. 17

23 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 23 of 36 evidence (alleged errors the Tenth Circuit had not addressed, according to Defendants); and (4) the judgment amount, if any, should be far less than the amount Plaintiffs sought in their Motion for Entry of Judgment. See Doc. Nos. 2373, 2374, 2376, 2377, Plaintiffs opposed Defendants arguments, but Plaintiffs and the Class faced a significant risk that the District Court, or the Tenth Circuit or Supreme Court thereafter, would rule that (a) the Class could not be certified under Fed. R. Civ. P. 23; (b) that Plaintiffs Colorado nuisance claims were still preempted by alleged numerical federal nuclear standards; (c) that the District Court erred at trial by allowing irrelevant and prejudicial evidence; and/or that (d) the judgment amount, if any, should be far less than the amount Plaintiffs sought in their Motion for Entry of Judgment. In short, depending on future rulings by the District Court, Tenth Circuit, and/or U.S. Supreme Court, there was significant risk of reduced or no recovery for the Class. There was also the substantial prospect of years of additional delay in a case already more than a quarter-century old. In addition, at the time of settlement, Defendants writ of certiorari seeking review by the United States Supreme Court was pending. Plaintiffs and the Class risked losing everything if the Supreme Court reviewed Cook Appeal II and found that Plaintiffs nuisance claims were preempted by the PAA (assuming that the Supreme Court also did not reverse or materially modify the Tenth Circuit s ruling in Cook Appeal I). In sum, the proposed Settlement provides a sizeable monetary recovery for the Class, while eliminating substantial risks and preventing the litigation from dragging out even longer. 3. The Value of an Immediate Recovery Outweighs the Possibility of Future Relief After Further Litigation Courts also consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after 18

24 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 24 of 36 protracted and expensive litigation. In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 625 (D. Col. 1976); see also Jones, 741 F.2d at 324 (courts should consider whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation ); Rutter, 314 F.3d at Again, if the Supreme Court had granted Defendants certiorari petition, this would have further prolonged the litigation and could have led to judgment being entered in favor of Defendants. See In re Crocs, Inc. Sec. Litig., 07-cv PAB-KLM, 2013 WL , at *12 (D. Colo. Aug. 28, 2013) ( Given the uncertainty of plaintiffs likelihood of success on the merits and the prospects of prolonged litigation, the Court finds that immediate recovery outweighs the time and costs inherent in complex... litigation, especially when the prospect is some recovery versus no recovery. ); King Res., 420 F. Supp. at 627 ( The Court recognizes that had these settlements not been reached, chances of the class prevailing against settling defendants would have been uncertain and disbursement of funds to the class, should it have prevailed, would undoubtedly have been delayed for some, perhaps lengthy, period of time given the high probability of an appeal or appeals in this case. ). Even if the Supreme Court had denied Defendants certiorari petition, there was likely to have been extensive and prolonged litigation concerning Plaintiffs Motion for Entry of Judgment, and Defendants multi-part opposition thereto, including additional appeals to the Tenth Circuit and additional rounds of Supreme Court certiorari petition briefing. This real risk that the Class might walk away with nothing, along with the inevitability of further years of delay, weigh in favor of final approval. See, e.g., Nieberding v. Barrette Outdoor Living, Inc., No. 12-CV-2353-DDC-TJJ, 2015 WL , at *3-5 (D. Kan. Apr. 14, 2015) (pendency of appeal favored approval because if the Tenth Circuit reversed the Court's class certification 19

25 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 25 of 36 order, the class members might recover nothing ); Seiffer v. Topsy s Int l, Inc., 70 F.R.D. 622, 625, 629 (D. Kan. 1976) (approving partial settlement after Tenth Circuit affirmance of class certification and while petition for writ of certiorari was pending, noting that although plaintiffs had no serious doubts about establishing liability, the risk of ultimately recovering money damages dogs the heels of even able and zealous counsel, especially in large and complex cases, and the certainty of fixed recovery by way of agreement is often preferable to the vagaries of what might be achieved by a trial ); Oppenlander v. Standard Oil Co. (Indiana), 64 F.R.D. 597, 624 (D. Colo. 1974) ( It has been held proper to take the bird in the hand instead of a prospective flock in the bush. ) (citation and internal quotations omitted); see also Lucas, 234 F.R.D. at Plaintiffs Believe the Settlement is Fair and Reasonable Lastly, courts consider whether the judgment of the parties that the settlement is fair and reasonable. Jones, 741 F.2d at 324; Rutter, 314 F.3d at Class Counsel, after extensive consultation with the Class Representatives, respectfully submit that the settlement is fair and reasonable. Counsels judgment as to the fairness of the agreement is entitled to considerable weight. Lucas, 234 F.R.D. at 695 (quoting Marcus v. Kansas Dept. of Revenue, 209 F. Supp. 2d 1179, 1183 (D. Kan. 2002)); Alvarado, 723 F. Supp. at 548 ( Courts have consistently refused to substitute their business judgment for that of counsel and the parties. ). Class Counsel are among the most experienced and respected class action lawyers in the nation, and have tirelessly advanced the Class s claims since the case s inception twenty-seven years ago. In our judgment, the Settlement is more than fair and reasonable it represents an outstanding result for the Class. This judgment is based not only on the calculus of risk in the Supreme Court and further litigation related to class certification and Plaintiffs Motion for Entry of Judgment, but also the very substantial sum of money that the settlement delivers to Plaintiffs with certainty. 20

26 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 26 of 36 Additionally, the Class Representatives fully support the Settlement. These Representatives have diligently and ably represented the Class through 27 years of litigation, including testifying at, and attending, the four-month trial. Given the Class Representatives unique vantage point at the center of this lengthy litigation, and their personal stake in the outcome, their support for the Settlement speaks highly of its fairness. 5. The Long Duration of This Litigation and Aging Class Members Further Supports Approval One less traditional but nonetheless important motivating factor in this case is the already long duration of the case, and the likelihood that at least several more years of litigation were in store. Three of the original class representatives have already passed away, and the remainder are older and in some cases in declining health. Other Class members no doubt have also passed away. The prospect of years of further litigation delay would mean even more Class members would not live to participate in any eventual recovery. 6. The Class s Overwhelmingly Positive Reaction to the Settlement Supports Approval The Court-approved Notice Plan has been completed, and the Court-ordered March 1, 2017 deadline for Class members to object to the Settlement or opt-out of the Settlement Class has lapsed. To date, there has been essentially no opposition to the Settlement. The Settlement and Claims Administrator has received only three opt-out requests. See Heffler Decl., at 3. In addition, the Settlement and Claims Administrator has received only two purported objections to the Settlement. One of the two purported objections was filed by William D. Thomas, who objected because he was not a Class member, and so not eligible to participate in the Settlement. See Doc. No As a non-class member, Mr. Thomas lacks standing to 21

27 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 27 of 36 object. 15 In addition, Mr. Thomas s objection did not question the Settlement s fairness indeed, he apparently objects to the Settlement only to the extent that he is not able to participate in it. The only objection filed by a member of the Class objected to Class Counsel s fee request, and did not claim that the Settlement was unfair (see Doc. No. 2445) Class Counsel s response to this objection is included in Class Counsel s Reply in Further Support of Class Counsel s Motion for Award of Attorneys Fees, Reimbursement of Litigation Expenses, and Award of Service Payments to Class Representatives, which is also being filed today. Heffler Claims Group issued notice to absent Class members in the manner ordered by this Court, and consistent with Rule 23. See Doc. No. 2416, (approving Plaintiffs proposed Notice Plan). The Court-approved Notice Plan was thorough and extensive, and the best notice practicable, as explained more fully in Plaintiffs Memorandum In Support of Their Motion for Preliminary Approval of Proposed Class Action Settlement, Preliminary Approval of Proposed Plan of Allocation, Approval of Proposed Forms and Manner of Notice to the Class, Approval of Proposed Claim Form, Appointment of Escrow Agent, Appointment of Settlement Administrator, and Approval of Proposed Schedule. 16 The Notice Plan included the following 15 See, e.g., Heller v. Quovadx, Inc., 245 F. App x 839, 842 (10th Cir. 2007) (holding that an objector to a securities class action settlement was not a class member and therefore... ha[d] no standing under Rule 23 because [n]on-class members have no standing to object.... and it was undisputed that the objector was not a class member) (quoting Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir.1989)); In re Motor Fuel Temperature Sales Practices Litig., No. 07-MD-1840-KHV, 2015 WL , at *21 (D. Kan. Aug. 21, 2015) ( Ordinarily, a non-settling party lacks standing to complain about a class action settlement because it has suffered no injury in fact and has no legally protected interest in the settlement. ); id. at *21 n.61 ( Generally, only class members have standing to object to a class settlement. ); id. at *24 (non-class members lacked standing to object); Newberg on Class Actions 13:22 (5th ed.) ( As Rule 23 confers the right to object upon class members, the Rule itself does not confer standing upon nonclass members. Courts regularly find that nonclass members have no standing to object to a proposed settlement or to the notice thereof. ); id. ( [N]onclass members may not object because generally speaking a settlement has no impact on them: as nonparties, they cannot be bound to the outcome of the litigation, and their interests generally are not affected by a class settlement. ). 16 Under Rule 23(e), [t]he Court must direct notice in a reasonable manner to all class members who would be bound by the proposed settlement. Fed. R. Civ. P. 23(e)(1). For classes certified under Rule 22

28 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 28 of 36 components, which are described more fully in the two declarations submitted by Jeanne C. Finegan, APR (Doc Nos. 2408, 2432) and in the Proposed Notice Plan (Doc. No ): 1) Direct mail notice by first-class U.S. mail to reasonably identifiable Class Members. Plaintiffs mailed the Long Form Notice to the potential Class members who received notice of class certification in 1999 (subject to obtaining current addresses), as well as any other potential Class members identified through the Jefferson County and Broomfield County 1989 property records data. The Settlement and Claims Administrator has attempted to obtain current addresses for the potential Class members. See Proposed Notice Plan, at II.1; Doc. No. 2408, at 17-21; Doc. No. 2432, at The Long Form Notice included a claim form and informed Class Members of the terms of the Settlement; the Plan of Allocation for proceeds of the Settlement; the nature of the settled claims; the status of the litigation; the date, time, and place of the hearing on the motions to approve the Settlement and to award attorneys fees and reimbursement of expenses; the parameters of the fee application; the procedure and applicable deadlines allowing Class members to comment on, object to, or request exclusion from the Settlement, and how to obtain more information, including through the Court-approved official website, ) An informational website ( The website includes the Settlement Agreement, a detailed map of the Property Class Area, the Long Form Notice, Summary Notice, the Plaintiffs motion for award of service awards to the Class Representatives and for attorneys fees, costs and expenses (when it was filed), and other important Court documents. See Proposed Notice Plan, at II.2; Doc. No. 2408, at 62-63; Doc. No. 2432, at 13. 3) A toll-free information phone line for Class members to call 24 hours a day, 7 days a week for more information about the Settlement, including but not limited to requesting copies of the Notice and Claim Form. See Proposed Notice Plan, at II.3; Doc. No. 2408, at 64; Doc. No. 2432, at (b)(3), as here, notice to class members must be the best notice practicable. See Fed. R. Civ. P. 23(c)(2)(B). [B]est notice practicable means individual notice to all members who can be identified through reasonable effort. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). The hallmark of the notice inquiry... is reasonableness. Lucas, 234 F.R.D. at 696 (quoting Sollenbarger v. Mountain States Tel. and Tel. Co., 121 F.R.D. 417, 436 (D.N.M.1988)). 17 C.f. In re Qwest Commc ns Int l, Inc. Sec. Litig., 625 F. Supp. 2d 1133, 1137 (D. Colo. 2009) ( [A] notice of a class action and a proposed settlement generally must contain an adequate description of the proceedings written in objective, neutral terms, that, insofar as possible, may be understood by the average absentee class member ). Counsel s adherence to this well-established procedure protects the rights of absent Class Members. 23

29 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 29 of 36 4) Publication of the Court-approved Summary Notice in nationally circulated consumer magazines. See Proposed Notice Plan, at II.4; Doc. No. 2408, at 34-39; Doc. No. 2432, at 15. 5) Publication of the Court-approved Summary Notice in Denver and Colorado newspapers. See Proposed Notice Plan, at II.5; Doc. No. 2408, at 57; Doc. No. 2432, at 16. 6) Television commercials aired nationwide on cable networks. The commercials included information about the proposed settlement, explained who is a member of the Class, and directed potential Class members to the official settlement website and the toll-free informational line for more information. See Proposed Notice Plan, at II.6; Doc. No. 2408, at 40-43; Doc. No. 2432, at 17. 7) Television and radio commercials aired on network affiliate and cable networks in the Denver Direct Market Area ( DMA ). The commercials included information about the proposed settlement, explained who is a member of the Class, and directed potential Class members to the official settlement website or to the toll-free informational line for more information. See Proposed Notice Plan, at II.7; Doc. No. 2408, at 55; Doc. No. 2432, at 18. 8) Online display banner advertising with a nationwide reach. Plaintiffs used online banner advertisements, advertisements on the top or sides of websites. The banner advertisements provided information for visitors to self-identify themselves as potential Class Members, where they could click on the banner and then link directly to the official website for more information and where they could register online, file a claim, or seek additional information including frequently asked questions and important court deadlines and documents. See Proposed Notice Plan, at II.8; Doc. No. 2408, at 44-45, 49; Doc. No. 2432, at ) Online video advertising with a nationwide reach. Plaintiffs placed online video advertisements on the Xaxis network 18 across various web properties as pre-roll. 19 See Proposed Notice Plan, at II.9; Doc. No. 2408, at 46; Doc. No. 2432, at ) Advertising on mobile websites and applications specifically targeted to reach class members. Plaintiffs used banner advertising on mobile websites and applications. Potential Class members could click on the mobile or application 18 Xaxis is an online network of over 2,000 individual web partner properties. ( 19 Online pre-roll advertisements or commercials appear prior to an online video being presented. Once you click on a certain online video link you must watch a short commercial (here, about the Settlement) before the video content. 24

30 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 30 of 36 banner and then link directly to the official settlement website. See Proposed Notice Plan, at II.10; Doc. No. 2408, at 53-54, 56; Doc. No. 2432, at ) Social media advertising through Facebook and Twitter with a nationwide reach. Facebook advertisements were served to adults across the United States, and more specifically to those who also have friends and family in living in Colorado and those who live near Rocky Flats and in surrounding areas. See Proposed Notice Plan, at II.11; Doc. No. 2408, at 50-51; Doc. No. 2432, at 24. In addition, advertisements were served on Twitter, appearing as sponsored tweets targeting adults nationwide with information about the proposed settlement and links to the Settlement Website. See Proposed Notice Plan, at II.11; Doc. No. 2408, at 50, 52; Doc. No. 2432, at ) Native advertising on premium internet properties with a nationwide reach. Plaintiffs also used native advertisements, which are banner advertisements that are served to function and fit the surrounding editorial on a page. See Proposed Notice Plan, at II.12; Doc. No. 2408, at 47; Doc. No. 2432, at ) Third-party outreach to a community action group, the Downwinders, 20 and medical providers asking them to share and distribute the Notice. See Proposed Notice Plan, at II.13; Doc. No. 2408, at 58-59; Doc. No. 2432, at The Downwinders distributed copies of the Notice at the October 15, 2016 Downwinders meeting. Doc. No. 2432, at ) A multimedia press release issued nationwide over PR Newwire s US1 newslines. See Proposed Notice Plan, at II.14; Doc. No. 2408, at 60; Doc. No. 2432, at 28. Commenting on the notice plan, Jeanne C. Finegan, APR concluded: 30. In my opinion, the robust outreach efforts taken pursuant to the Courtapproved Notice Plan and described above reflect a particularly appropriate, highly targeted and contemporary way to provide notice to potential Class members. Indeed, I estimate that the robust multi-channel Notice Plan, which combined direct mail and a paid media program, exceeded our original estimated projections, and reached over 96 percent of potential Class members (or their heirs or successors) living in the Denver DMA (reaching more potential Class Members than we originally expected); reached over 96 percent of potential Class members (or their heirs or successors) living in Colorado; and reached over 84 percent of potential Class members (or their heirs or successors) nationwide. 20 Rocky Flats Downwinders is a community organization founded in 2015 advocating on behalf of those impacted by living downwind from the Rocky Flats Nuclear Weapons Plant. The organization came together through common concern about the high rate of illness suffered by former residents in the Arvada, Broomfield, Thornton, and surrounding areas. 25

31 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 31 of In my opinion, the successfully implemented Court-approved Notice Plan reflected and incorporated the highest modern communication standards and was reasonably calculated to provide notice that is not only consistent with, but indeed, exceeds best practicable court-approved notice plans in similar matters and is consistent with the Federal Judicial Center s guidelines concerning appropriate reach. Doc. No. 2432, at Following the completion of the extensive Notice Plan, Class members were given ample time to opt out of the Class or object to the Settlement (more than 90 days). 21 The Courtapproved Notice Plan was substantially completed by November 28, 2016 (see Doc. No. 2432, at 4), 93 days prior to the March 1, 2017 deadline for requesting exclusion from the Class or objecting to the Settlement (see Doc. No. 2416, at 17). Courts have approved much shorter exclusion and/or objection periods. 22 Simply put, any Class member who may have reason to object to the Settlement has been provided fair notice, and had an opportunity to either opt-out or object to the Settlement. The Court-ordered deadline to request exclusion or object to any aspect of the Settlement March 1, 21 Class members were previously given an opportunity to opt out of the Class when notice was mailed to the Class in See Doc. No (Plaintiffs Proposed Class Notice); Doc No (Order Approving Class Notice); Doc. No and exhibits thereto (report on prior opt outs). Rule 23(e)(4) provides that [i]f the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. Here, the class certification was reversed by Cook Appeal I, while 23(e)(4) appears to address a situation where a class is certified, then a case settles. In any event, the Class members were given a second opportunity to opt out of the Class, as well as an opportunity to object to the Settlement. 22 See DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935, 946 (10th Cir. 2005) (affirming a 32-day notice period and noting that courts have found a notice scheme similar to the one in the instant case sufficient and have not required a sixty- or ninety-day notice period, as Appellants suggest ); Lucas, 234 F.R.D. at (approving a 60-day notice period for a nationwide settlement class of over 200,000 potential members); Hershey v. ExxonMobil Oil Corp., No. 07-cv-1300-JTM, 2012 WL , at *4 (D. Kan. Oct. 26, 2012) (approving a 30-day notice period where the settlement compensated the class of over 8,600 members for damages extending back to 1988 ); see also Newberg on Class Actions 8:16 (5th ed.) ( [C]ourts typically provide for a few months between the issuance of settlement notice and either the deadline for objections or the fairness hearing[,] although gaps of one month or less have been found adequate. ). 26

32 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 32 of has elapsed. The overwhelmingly positive reaction of the Class not a single Class member has filed a substantive objection to the settlement weighs strongly in favor of approval. 23 V. THE COURT SHOULD APPROVE PLAINTIFFS PROPOSED PLAN OF ALLOCATION An allocation formula need only have a reasonable, rational basis, particularly if recommended by experienced and competent class counsel. Lucas, 234 F.R.D. at 695 (quotation and citations omitted). It is well established that a plan of allocation is fair, reasonable and adequate where it seeks to compensate Class members based on their estimated damages. See, e.g., In re Crocs, Inc. Sec. Litig., 306 F.R.D. 672, 692 (D. Colo. 2014); Law v. Nat l Collegiate Athletic Ass n, 108 F. Supp. 2d 1193, 1196, 1200 (D. Kan. 2000); Smith v. MCI Telecomms. Corp., No EEO, 1993 WL , at *2 (D. Kan. Apr. 28, 1993). The proposed Plan of Allocation of the Settlement Fund ( proposed Plan of Allocation ) (attached as Exhibit 2) (previously filed at Doc. No ) accomplishes these goals: it 23 See, e.g., In re New Mexico Nat. Gas, 607 F. Supp. at 1504, ; Belote v. Rivet Software, Inc., No. 12-CV WYD-MJW, 2014 WL , at *2 (D. Colo. Aug. 11, 2014) ( Additional factors which may be relevant include: (1) the risk of establishing damages at trial; (2) the extent of discovery and the current posture of the case; (3) the range of possible settlement; and (4) the reaction of class members to the proposed settlement. ) (citing In re New Mexico Nat. Gas, 607 F. Supp. at 1504); Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D. Colo. 1997) (same); Tuten, 41 F. Supp. 3d at 1008 (in reviewing a proposed class settlement under the Gottlieb factors, [t]he Court may also consider the fact that no objections were filed by any Class Members. ) (granting final approval); Mohammed, 2014 WL , at *4 ( [T]he fact that no objections to the settlement were filed by any shareholder weighs heavily in favor of approval of the derivative litigation settlement. ); Oppenlander, 64 F.R.D. at 627 ( It is significant that only one shareholder out of thousands filed a written objection to the Settlement Agreement. ); Ponca Tribe of Indians, 2009 WL , at *1 (approving class settlement and noting that [n]o substantive objections were filed to the settlement... [and] there were eight (8) opt outs out of approximately 1,800 Class Members ); Belote, 2014 WL , at *4 (noting that the fact that no substantive objections were filed indicat[e] that the Class Members do not oppose the settlement ); Hopkins, 2012 WL , at *3 ( the fact that only three conclusory written objections to the settlement were received and no objectors appeared at the settlement hearing, despite the fact that notice of the settlement was sent to more than 47,000 record holders of Oilsands stock, weighs heavily in favor of approval of the derivative litigation settlement. ). 27

33 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 33 of 36 provides a fair and objective method of compensating the Class members for their damages, based on the damages determined by the jury at trial. The proposed Plan of Allocation was preliminarily approved by the Court on August 5, 2016 (Doc. No. 2416), and is modeled on the prior Plan of Allocation approved by the Court on June 2, 2008 in connection with the Court s entry of judgment in favor of Plaintiffs after trial. See Doc. No The current proposed Plan of Allocation calls for distribution of the Net Settlement Fund 24 in the following manner: 3.196% of the Net Settlement Fund will be allocable to commercial properties located in the Property Class Area; % of the Net Settlement Fund will be allocable to residential properties located in the Property Class Area; and % of the Net Settlement Fund will be allocable to vacant land located in the Property Class Area. Proposed Plan of Allocation, at 8. These are the same percentages for each class of properties that the jury awarded. See Jury Verdict Form, Doc. No. 2117, at 24. Based on Jefferson County and Broomfield County tax assessment records from April 1989 and such other sources as the Settlement and Claims Administrator may reasonably determine to be suitable and reliable, the Settlement and Claims Administrator shall determine, for each Class property, the property s assessed value, expressed as a fraction of the total assessed value of all Class properties within the same category (the property s Fractional Allocable Share ). Plan of Allocation, at 9. The Settlement and Claims Administrator shall compute an award for each member of the Class, based on the Class member s property s Fractional Allocable Share of the Net 24 The Net Settlement Fund is defined as the Settlement Fund, less (i) service awards to the Class Representatives approved by the Court; (ii) fees, expenses, and costs approved by the Court to be awarded from the Settlement Fund to counsel for Plaintiffs and the Class; (iii) Court-approved compensation and expenses paid or reimbursed to the Settlement and Claims Administrator; and (iv) any additional administrative expenses that may be charged against the Settlement Fund as approved by the Court. 28

34 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 34 of 36 Settlement Fund apportioned to that category. Plan of Allocation, at 10. For example, for a residential property, the proposed Plan of Allocation will result in an award based on the property s Fractional Allocable Share multiplied by the Net Residential Property Settlement Fund. It is anticipated that after the first distribution of settlement proceeds there will be unclaimed or residual funds and that a subsequent distribution or distributions will be needed. Class Counsel anticipates that, subject to Court approval, in any such second or subsequent distribution, the properties closest to the plant will be given an extra weighting such that those properties receive relatively more money in subsequent distributions. Plan of Allocation, at 11, 13. Insofar as the Net Settlement Fund includes residual funds after distribution(s) as set forth in the preceding paragraphs that cannot be economically distributed to the Class (because of the costs of distribution as compared to the amount remaining), Class Counsel shall make an application to the Court, with notice to Defendants, for such sums to be used to make cy pres payments for the benefit of members of the Class, for example by making a donation to a group or groups whose interests are aligned with Class members or otherwise as directed by the Court. Plan of Allocation, at 14. The distribution methodology is adequately explained in the Notice sent to potential Class members and posted to the official settlement website. The proposed Plan of Allocation tracks the damages awarded to the Class at trial, and is fair, reasonable, and adequate to the Class as a whole, and should be approved. VI. CONCLUSION For the reasons stated herein, Plaintiffs respectfully request that the Court grant their motion for final approval of the Settlement, as set forth in the attached proposed Orders. 29

35 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 35 of 36 Dated: March 30, 2017 Respectfully submitted, /s/ Merrill G. Davidoff Merrill G. Davidoff David F. Sorensen Caitlin G. Coslett BERGER & MONTAGUE, P.C Locust Street Philadelphia, PA (215) Gary B. Blum Steven W. Kelly SILVER & DeBOSKEY, P.C York Street Denver, CO (303) Louise M. Roselle Paul M. DeMarco MARKOVITS, STOCK & DE MARCO, LLC 119 E. Court Street, Suite 530 Cincinnati, OH (513) Attorneys for Plaintiffs and the Class 30

36 Case 1:90-cv JLK Document 2459 Filed 03/30/17 USDC Colorado Page 36 of 36 CERTIFICATE OF SERVICE The undersigned certifies that on this 30 day of March, 2017 he caused the foregoing submission to be served via the Court s ECF system on all participating counsel. /s/ Merrill G. Davidoff Merrill G. Davidoff BERGER & MONTAGUE, P.C Locust Street Philadelphia, PA (215)

37 Case 1:90-cv JLK Document Filed 03/30/17 USDC Colorado Page 1 of 29 Exhibit 1

38 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 2 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 90-cv JLK MERILYN COOK, et al., v. Plaintiffs, ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMPANY, Defendants. SETTLEMENT AGREEMENT This Settlement Agreement (the Settlement Agreement ) is entered on May 18, 2016, by plaintiffs Merilyn Cook, Richard and Sally Bartlett, and William and Delores Schierkolk 1 (the Named Plaintiffs ), the Settlement Class (defined below), defendant The Dow Chemical Company ( Dow ), and defendant The Boeing Company as successor-in-interest to defendant Rockwell International Corporation ( Rockwell ) (collectively, Dow and Rockwell are the Defendants ), for the purpose of settling the above-captioned lawsuit, which was brought as a public liability action under the Price- Anderson Act ( PAA ), 42 U.S.C et seq. and under diversity jurisdiction (the Action ), and is pending in the United States District Court for the District of Colorado (the District Court ). Each of the Named Plaintiffs, individually and as representatives of the stipulated Settlement Class, Dow, and Rockwell is a Party to this Settlement Agreement and collectively are the Parties. Rockwell Automation, Inc. is a separate signatory to the Settlement Agreement, but solely in its capacity as Boeing s indemnitor and for the purpose of acknowledging its indemnity obligations to Boeing. 1 Delores Schierkolk is deceased, but William Schierkolk is her heir and representative.

39 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 3 of 29 RECITALS A. This is a settlement of a public liability action under the PAA and all claims that the Named Plaintiffs brought or could have brought (other than claims for actual bodily injury) subject to paragraph 7, below. B. The Named Plaintiffs commenced the Action in 1990 by filing a complaint against Dow and Rockwell on behalf of themselves and a putative class of persons and entities owning an interest in real property near the Rocky Flats Nuclear Weapons Plant in Jefferson County, Colorado. The federal government owned the Rocky Flats plant and hired contractors to operate it. Dow operated the plant from 1952 to 1975; Rockwell International operated the plant from 1975 to C. The complaint, as amended, asserts public liability under the PAA for property damage caused by plutonium releases from the Rocky Flats plant, and trespass and nuisance claims. Plutonium is special nuclear material under the PAA, 42 U.S.C. 2014(aa). Plaintiffs allege that these plutonium releases exposed class members to radiation, contaminated their property, increased their cancer risk, and substantially and unreasonably interfered with the use and enjoyment of their property. Because the alleged nuclear incidents occurred in Colorado, the District Court, pursuant to the PAA, 42 U.S.C. 2014(hh), derived the substantive rules for decision for plaintiffs trespass and nuisance claims from Colorado law. D. This Action has been litigated for more than two decades. The lengthy litigation proceedings have included the following significant events: 1. The District Court certified a class of property owners in Plaintiffs tried their PAA trespass and nuisance claims to a jury in 2005, which resulted in a verdict in favor of the class and a judgment against Defendants in the amount of $926,104, Defendants appealed to the Tenth Circuit, which concluded that the PAA has its own injury requirements, on which the jury had not been instructed. The Court also vacated the District Court s class certification ruling, reversed and remanded the case, and directed the District Court to vacate the judgment. Cook v. Rockwell Int l Corp., 618 F.3d 1127, 1133 (10th Cir. 2010) (Cook Appeal I). 4. Plaintiffs argued on remand to the District Court that they were entitled to reinstate the judgment as a state law nuisance claim, independent of the PAA. The District Court rejected that argument, ruling that the PAA establishes an exclusive federal remedial scheme for the claims asserted by Plaintiffs and, accordingly, entered judgment in favor of Defendants. Cook v. Rockwell Int l Corp., 13 F. Supp. 3d 1153 (D. Colo. 2014). 2

40 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 4 of Plaintiffs appealed to the Tenth Circuit, which reversed the District Court, holding that the PAA did not preempt the Named Plaintiffs nuisance claim under Colorado law and that the Named Plaintiffs could seek reinstatement of the prior nuisance judgment under Colorado law, and remanded for additional proceedings, including consideration of whether the District Court could recertify the class. Cook v. Rockwell Int l Corp., 790 F.3d 1088 (10th Cir. 2015) (Cook Appeal II). E. Until execution of this Settlement Agreement, the Parties continue to litigate this Action in the District Court and in the United States Supreme Court. 1. Currently before the District Court is, inter alia, Plaintiffs Corrected Motion for Entry of Judgment based on the 2006 nuisance verdict in the amount (with interest as of November 2, 2015) of $897,152, against Rockwell and $384,493, against Dow. 2. The Parties also are pursuing United States Supreme Court review of Cook Appeal I and Cook Appeal II. Defendants petition for writ of certiorari asks the United States Supreme Court to review Cook Appeal II and seeks a determination that Plaintiffs have no means of recovery other than through a public liability action under the PAA. The Named Plaintiffs conditional cross-petition asks the Supreme Court to review Cook Appeal I if the Supreme Court reviews Cook Appeal II, and seeks a determination that the PAA does not impose a federal injury requirement different from Colorado state nuisance law. F. Class Counsel and the Named Plaintiffs have thoroughly analyzed the facts and law regarding this matter and have concluded that this settlement is in the best interest of the Settlement Class because of the risk, among others, that the Supreme Court could overturn Cook Appeal II, affirm that this Action is a public liability action under the PAA, and leave Named Plaintiffs and the Settlement Class without any recovery. G. Defendants have concluded that there is a risk that the Supreme Court, if it overturns Cook Appeal II, could also overturn Cook Appeal I, which, while affirming this Action is a public liability action under the PAA, could have the effect of reinstating the original judgment that Cook Appeal I set aside. H. Both Named Plaintiffs and Defendants also recognize that the Supreme Court could deny certiorari on both Cook Appeal I and II, which would leave the Parties in their present posture of contested proceedings in the District Court. I. In light of these risks arising from these Supreme Court proceedings relating to the PAA, as well as the risk to both sides of other adverse rulings and developments that will prolong and increase the costs of this litigation, the Parties now agree to compromise and settle this action. 3

41 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 5 of 29 J. This Settlement Agreement is a product of extensive arm s-length settlement negotiations over more than seven months between counsel for the Parties and through and with the assistance of a mediator, the Honorable Layn Phillips, former United States District Judge. SETTLEMENT TERMS In consideration of the mutual promises and releases contained in this Settlement Agreement, the Parties stipulate and agree to the following terms, which together constitute the Settlement : 1. THE SETTLEMENT CLASS. The Parties are entering into a separate stipulation, in conjunction with this Settlement Agreement, to the certification of a Settlement Class or Class or Property Class defined as all persons and entities who have not previously opted out or who do not timely opt out of the class and who owned, as of June 7, 1989, an interest (other than mortgagee and other security interests) in real property situated within the Property Class Area (defined below), exclusive of governmental entities, Defendants, and Defendants affiliates, parents, and subsidiaries. The Property Class Area is a geographic area near the former Rocky Flats Nuclear Weapons Plant in Colorado; its boundary is portrayed in the map attached to this Settlement Agreement as Exhibit A. Settlement Class Members means each and every member of the Settlement Class. Class Counsel means counsel for the Named Plaintiffs and Settlement Class Members. Defendants have stipulated to certification of the Settlement Class, subject to the reservation of rights stated in Paragraph 17 and contained in the separate stipulation. 2. PAYMENT. The total funds payable under this Settlement Agreement shall equal and shall in no event exceed $375,000,000 (other than pursuant to Paragraph 2(f)(ii)), to be paid as follows: (a) Initial Payments. Within ten (10) business days following the date the Parties execute this Settlement Agreement, Dow and Rockwell will make, or cause to be made, the following payments by wire transfers to an agreed-upon escrow account: Dow will pay, or cause to be paid, $1,250,000; Rockwell will pay, or caused to be paid, $1,250,000. Upon the District Court entering an order granting preliminary approval of the Settlement (the Preliminary Approval Order ), such funds shall be available to Class Counsel to draw upon only for District Court-approved costs of Notice and other settlement administration costs incurred after the date of this Settlement Agreement, and shall not be drawn upon for costs incurred before the date of this Settlement Agreement or for any counsel fees (other than relating directly to Notice or settlement administration and as approved by the Court). If approved costs under this subparagraph exceed $2,500,000, then, upon a showing of good cause, Dow and Rockwell will make, or cause to be made, 4

42 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 6 of 29 Replenishment Payments in $2,500,000 increments (for each such increment, Dow will pay, or cause to be paid $1,250,000, and Rockwell will pay, or cause to be paid, $1,250,000), but payments under this Paragraph 2(a) shall not exceed a total of $10,000,000. (b) Interim Payments. If the District Court enters an order granting final approval of the Settlement sooner than one year following the date the Court enters the Preliminary Approval Order, then within fifteen (15) business days following entry of such order Dow and Rockwell shall make, or cause to made, the following payments by wire transfers to an agreed-upon escrow account: Dow will pay, or cause to be paid, $4,000,000; Rockwell will pay, or cause to be paid, $4,000,000. Such funds may, with District Court approval, be drawn upon to pay out-of-pocket litigation costs and expenses previously incurred by Class Counsel, but shall not be drawn upon for any counsel fees. (c) Final Payments. If the District Court enters the Preliminary Approval Order, then on the earlier of (i) one year following the date the Court enters the Preliminary Approval Order, (ii) July 28, 2017, or (iii) ten (10) business days from the date on which the United States Department of Energy ( DOE ) satisfies its nuclear hazards indemnification obligations to Defendants by transferring to Defendants $375,000,000, Dow and Rockwell will make, or cause to be made, the following Final Payments by wire transfers to an agreedupon escrow account: Dow will pay, or cause to be paid, $131,250,000, less the amount of its Initial, Replenishment or Interim Payments, if any; Rockwell will pay, or cause to be paid, $243,750,000, less the amount of its Initial, Replenishment or Interim Payments, if any. The Final Payment funds, after deductions, as approved by the District Court, for payment of (a) attorneys' fees, costs and expenses; (b) service awards to the Named Plaintiffs; (c) taxes payable by the Settlement Fund; and (d) any and all notice and administrative costs and expenses associated with the Settlement, shall be distributed in accordance with the District Court s approved allocation plan and only after the Settlement Agreement becomes final as specified in Paragraph 3(d). (d) Settlement Fund. Together, the payments specified in this paragraph, with any accrued interest, shall be the Settlement Fund. Pending the Settlement Agreement becoming final as specified in Paragraph 3(d), funds on deposit in the agreed-upon escrow account pursuant to the foregoing payment provisions shall be invested solely in United States Treasury Securities of 12 months or shorter duration, except that funds paid pursuant to Paragraph 2(a) or needed for payments within one week may be deposited in a federally insured bank account. The escrow account shall be treated as a qualified settlement fund for federal income tax purposes pursuant to Treas. Reg. 5

43 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 7 of 29 Section 1.468B-1, and any taxes due as a result of income earned by the Settlement Fund will be paid from the Settlement Fund. (e) Payment Terms Unaffected By Merger. Under no circumstances will any merger or divestiture or other transaction of any kind by any Defendant diminish, defeat or undermine the payment or other obligations in this Settlement Agreement. (f) Effect of Nonpayment. If for any reason Dow or Rockwell does not timely make its Final Payment as provided in Paragraph 2(c), and allowing for a grace period of five (5) business days, Plaintiffs shall thereafter have the right to elect one of the following remedies against any non-paying Defendant: (i) withdraw from the settlement as to that Defendant and proceed in the District Court with Plaintiffs pending Corrected Motion for Entry of Judgment against that Defendant, in which case such non-paying Defendant shall not be entitled to return of that Defendant s portion of the Initial or Interim Payments specified in Paragraph 2(a) and (b); (ii) seek entry and/or enforcement of judgment against that Defendant for the unpaid portion of that Defendant s payment obligations under this Settlement Agreement, plus (A) a penalty equal to 15% of the unpaid settlement amount, (B) interest equal to 1% per month calculated from the date payment was due through the date such judgment is satisfied, and (C) any costs of collecting such payment. Non-payment by one Defendant shall in no way affect the rights and obligations set forth in this Settlement Agreement or its finality as to a Defendant that timely pays in accordance with this Settlement Agreement. (g) Stipulated Judgments. Attached hereto as Exhibits B and C are stipulated final judgments against Dow and Rockwell, respectively, for the amounts each has agreed to pay pursuant to this Settlement. The Parties agree that these judgments may be entered upon final District Court approval of the Settlement, but not enforced except as set forth in Paragraph 2(h). A form of final judgment granting final approval to the Settlement and dismissing the Action with prejudice, and containing other customary provisions, will be agreed to by the Parties prior to final approval of the Settlement Agreement by the District Court. (h) In the event (but only in the event) of nonpayment as provided in Paragraph 2(f), the judgment(s) may be enforced against any non-paying Defendant(s), only if Plaintiffs elect the remedy provided in Paragraph 2(f)(ii) against such non-paying Defendant(s), and subject to Plaintiffs filing, with 6

44 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 8 of 29 reasonable notice to Defendants, a motion establishing non-payment and seeking calculation and enforcement of the stipulated judgment under Paragraph 2(f)(ii). The entry of these judgments in advance of any breach is not intended to foreclose, and does not foreclose, defendants right to appeal from any order entered pursuant to this Paragraph 2(h) and does not impair defendants right to appeal from such order. Except as provided in Paragraph 2(f)(ii), Plaintiffs shall make no claim of interest based on the entry of these judgments, and any interest relating to their enforcement is limited to the interest provided for in Paragraph 2(f)(ii). Except as provided in this Paragraph 2(h), Defendants agree not to object to or appeal from final approval of the Settlement. 3. APPROVAL OF SETTLEMENT. The Parties and their counsel agree to use their best efforts to effectuate this Settlement Agreement, and will cooperate to promptly seek and obtain preliminary and final approval of the Settlement, consistent with the procedures set forth herein: (a) Supreme Court Proceedings. On or before May 18, 2016, the Parties will withdraw their respective pending petitions for writ of certiorari seeking Supreme Court review of Cook Appeal I and Cook Appeal II. (b) Motion for Preliminary Approval. Within forty (40) business days following execution of this Settlement Agreement, subject to Defendants review and approval, which they shall not unreasonably withhold, Plaintiffs shall submit to the Court a motion requesting entry of an order preliminarily approving the Settlement, and authorizing dissemination of notice to the Settlement Class, as well as a stay of all non-settlement-related proceedings before the District Court (the Motion for Preliminary Approval ). Such motion shall include the proposed form of, method for, and timetable for dissemination of notice to the Settlement Class, and the proposed deadlines by which Settlement Class Members must opt-out of the Settlement Class or object to the Settlement. (c) Motion for Final Judgment and Approval. Subject to Defendants review and approval, which they shall not unreasonably withhold, Named Plaintiffs will, following the period of notice and opportunity for Settlement Class Members to opt out or object by the deadline set by the District Court, file a motion in the District Court seeking entry of final judgment and approval of the Settlement (the Motion for Final Judgment and Approval ). Such Final Judgment and Approval shall: (i) approve finally this Settlement as a fair, reasonable, and adequate resolution of the Settlement Class Members claims and direct its consummation according to the Settlement Agreement s terms; 7

45 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 9 of 29 (ii) find under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and enter final judgment of dismissal with prejudice of all claims against the Defendants, without costs except as expressly provided in this Settlement Agreement; and (iii) reserve exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this Settlement, notice to the Settlement Class, Class Counsel fees and expenses, service awards for Named Plaintiffs, allocation of the Settlement Fund, and enforcement of payment terms stated herein. (d) Finality. This Settlement shall become final only upon occurrence of all of the following: (i) the entry by the District Court of Final Judgment and Approval as specified in Paragraph 3(c) above; and (ii) the expiration of the time for appeal or to seek permission to appeal from Final Judgment and Approval or, if an appeal is taken, the affirmance of such Final Judgment and Approval in its entirety, without a modification or ruling that materially changes the scope of the Settlement Agreement or certification of the Class, by the court of last resort to which an appeal of such Final Judgment and Approval may be taken. (e) Stipulated Neutrality. Defendants will take no position on any plan of allocation or class administration, notice to the Settlement Class, Class Counsel fees and expenses, service awards for Named Plaintiffs, allocation or distribution of settlement proceeds, and any cy pres distribution of residual settlement proceeds or proceeds that cannot be distributed to settlement class members for any reason (unless such cy pres distribution would exceed 5% of the Settlement Fund, in which case Defendants may take a position on that issue). Defendants will not assist or otherwise aid any objectors to the Settlement or other ancillary matters relating to the Settlement. 4. NO INJUNCTIVE RELIEF. This Settlement does not include any provision for injunctive relief. 5. FULL SATISFACTION. Named Plaintiffs and Settlement Class Members shall look solely to the Settlement Fund for settlement and satisfaction from the Defendants and other Released Parties for any and all Released Claims, including any costs, fees or expenses of any of the Named Plaintiffs and Settlement Class Members or their attorneys, experts, advisors, agents and representatives, including with respect to the negotiation, execution and performance of their obligations under this Settlement Agreement. In the event that the Settlement becomes final pursuant to Paragraph 3(d) 8

46 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 10 of 29 herein, the Settlement Fund will fully satisfy any and all Released Claims. Except as provided by order of the District Court, no Named Plaintiff or Settlement Class Member shall have any interest in the Settlement Fund or any portion thereof. Apart from the payments specified in Paragraph 2 of this Settlement Agreement, Defendants shall not be responsible or otherwise liable for any additional payments to the Settlement Class Members or Class Counsel. 6. DISTRIBUTION OF SETTLEMENT FUND. Subject to approval by the District Court, Class Counsel shall designate a person or persons to administer and distribute the Settlement Fund in accordance with the provisions of this Settlement Agreement and the exhibits thereto (the Settlement Administrator ). Defendants shall have no responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution, or administration, except as otherwise expressly provided in this Settlement Agreement. Neither Defendants nor the DOE shall be entitled to any refund, return or remittitur, or diminution of the settlement amount if the Settlement becomes final as provided in Paragraph 3(d). 7. RELEASE. Upon this Settlement Agreement becoming final as provided in Paragraph 3(d), the Named Plaintiffs and Settlement Class Members unconditionally, fully and finally release and forever discharge the Defendants, any past, present and future parents, subsidiaries, divisions, affiliates, joint ventures, stockholders, officers, directors, management, supervisory boards, insurers, indemnitors (including the DOE), general or limited partners, employees, agents, trustees, associates, attorneys and any of their legal representatives or any other representatives thereof (and the predecessors, heirs, executors, administrators, successors and assigns of each of the foregoing) (the Released Parties ) from any and all manner of claims, rights, debts, obligations, demands, actions, suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, including costs, expenses, penalties and attorneys fees, accrued in whole or in part, in law or equity, that the Named Plaintiffs and Settlement Class Members (including any of their past, present or future officers, directors, insurers, general or limited partners, divisions, stockholders, agents, attorneys, employees, legal representatives, trustees, parents, associates, affiliates, joint ventures, subsidiaries, heirs, executors, administrators, predecessors, successors and assigns, acting in their capacity as such) (collectively the Releasors ) ever had, now have or hereafter can, shall or may have, directly, representatively, derivatively or in any other capacity, arising out of or relating in any way to the Released Parties conduct in connection with Rocky Flats, including without limitation any claim that was alleged or could have been alleged in the above-captioned suit (the Released Claims ), except that the Settlement Class Members and the Named Plaintiffs do not release claims for actual bodily injury, nor claims unrelated to the allegations in the complaint such as pension, or product liability or contract claims or 9

47 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 11 of 29 claims of former Rocky Flats workers under Workman s Compensation or similar laws or regulations. Releasors hereby covenant and agree that each shall not sue or otherwise seek to establish or impose liability against any Released Party based, in whole or in part, on any of the Released Claims, regardless of whether or not any Releasors objected to the Settlement. 8. AUTHORITY AND CAPACITY TO EXECUTE. Each person signing this Settlement Agreement on behalf of a Party represents that such signatory has the full and complete power, authority and capacity to execute and deliver this Settlement Agreement and any documents to be executed pursuant hereto, that all formalities necessary to authorize execution of this Settlement Agreement so as to bind the signatory or its principal have been undertaken. 9. CONSTRUCTION. The language of all parts of this Settlement Agreement will in all cases be construed as a whole, according to its fair meaning and not strictly for or against any Party. All Parties have participated in the preparation of this Settlement Agreement and its exhibits and no presumptions or rules of interpretation based upon the identity of the Party preparing or drafting this Settlement Agreement or its exhibits, or any part thereof, shall be applied or invoked. 10. FAILURE TO FINALIZE SETTLEMENT. If the Settlement Agreement cannot be finalized as provided in Paragraph 3(d), the Settlement Agreement shall be deemed canceled and rescinded. If more than a specified percentage of putative Settlement Class Members timely opt out of the Settlement Class (as set forth in Exhibit D hereto that shall, with the approval of the District Court, be filed with the Court under seal or in camera, and publicly only if the Court so directs), Defendants in their sole discretion shall have the right to rescind the Settlement Agreement. If the Settlement Agreement is rescinded pursuant to this paragraph, the following shall occur: (a) Return of Settlement Funds. The Settlement Fund shall be returned forthwith to Defendants, proportionate to their respective payments, less any disbursements made for expenses actually incurred in accordance with Paragraph 2(a). (b) Cancellation of Settlement Agreement. Any rights or obligations under this Settlement Agreement (other than return of the Settlement Fund as set forth in the preceding subparagraph) shall be cancelled. (c) Resumption of Litigation. The Parties shall be free to recommence non-settlement-related litigation proceedings. For avoidance of doubt, a modification or rejection by the District Court of fees and expenses requested by Class Counsel from the Settlement Fund or any plan of allocation or distribution of the Settlement Fund, or modification or reversal on appeal of an order 10

48 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 12 of 29 awarding same shall not affect or impair the finality of this Settlement Agreement under Paragraph 3(d), and shall not be a basis to rescind the Settlement Agreement. 11. NOTICE. Any and all notices, requests, consents, directives or communications by any Party intended for any other Party shall be in writing and shall, unless expressly provided otherwise herein, be given personally or by express courier or by electronic transmission (such as ) followed by postage prepaid mail, to the following persons and shall be addressed as follows: FOR NAMED PLAINTIFFS: Merrill G. Davidoff, Esquire David F. Sorensen, Esquire Berger & Montague, P.C Locust Street Philadelphia, PA Phone: mdavidoff@bm.net dsorensen@bm.net Gary B. Blum, Esquire Steven W. Kelly, Esquire Silver & DeBoskey, P.C York Street Denver, CO Phone: blumg@s-d.com kellys@s-d.com Louise Roselle Paul M. De Marco Markovits, Stock & DeMarco 119 East Court Street Suite 530 Cincinnati, OH Phone: lroselle@msdlegal.com pdemarco@msdlegal.com FOR DEFENDANTS: Jason C. Miller The Dow Chemical Company 2030 Dow Center Midland, MI

49 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 13 of 29 Phone: (989) Bradley H. Weidenhammer KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL Phone: (312) Brian M. Russ Senior Counsel The Boeing Company 2201 Seal Beach Blvd., MC 110-SB37 Seal Beach, CA Phone: (562) FOR ROCKWELL AUTOMATION, INC.: Douglas M. Hagerman SVP, General Counsel & Secretary Rockwell Automation, Inc. Phone: (414) Any of the Parties may, from time to time, change the address to which such notices, requests, consents, directives or communications are to be delivered, by giving the other Parties prior written notice of the changed address, in the manner provided above, ten (10) calendar days before such change is effective. 12. INTEGRATED AGREEMENT. This Settlement Agreement contains an exclusive, entire, complete and integrated statement of each and every term and provision agreed to, by and among the Parties pertaining to the settlement of this Action and supersedes any and all prior and contemporaneous undertakings among the Parties in connection therewith. Any modification to this Settlement Agreement, whether modified by the Parties or any court, will become binding only if signed by all the Parties or their authorized representatives. 13. HEADINGS. The headings used in this Settlement Agreement are intended for the convenience of the reader only and shall not affect the meaning or interpretation of this Settlement Agreement. 12

50 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 14 of CHOICE OF LAW. All terms of this Settlement Agreement shall be governed by and interpreted according to the substantive laws of Colorado without regard to its choice of law or conflict of law principles. 15. CONSENT TO JURISDICTION. The Defendants and Plaintiffs hereby irrevocably submit to the exclusive jurisdiction of the District Court, for any suit, action, proceeding or dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement Agreement. Nothing in this paragraph shall prohibit (a) the assertion in any forum in which a claim is brought that any release herein is a defense, in whole or in part, to such claim or (b) in the event that such a defense is asserted in such forum, the determination of its merits in that forum. 16. ATTORNEYS FEES. Each Party shall bear its own attorneys fees and costs associated with litigating this Action and negotiating or implementing this Settlement (other than as provided for in this Settlement Agreement or as ordered by the Court). 17. RESERVATION OF RIGHTS; NO ADMISSION. This Settlement Agreement shall not be admissible for any purpose except in an action to enforce its terms. It is expressly understood that by entering into this Settlement Agreement and by filing a paper supporting approval of the Settlement, Defendants do so for settlement purposes only. Nothing in this Settlement Agreement, nor any other Settlement-related document, nor any proceedings undertaken in accordance with the terms set forth in the Settlement Agreement shall constitute, be construed as or be deemed to be evidence of or an admission or concession by the Defendants as to whether any class, in this case or others, may be certified for purposes of litigation and trial, or as an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by Defendants or of the truth of any of the claims or allegations made in this action. Defendants expressly and fully reserve their rights to defend this action and oppose certification of a litigation class if for any reason this Settlement does not become final as provided in Paragraph 3(d). Nothing in this Settlement Agreement, any other Settlement-related document, or any proceedings undertaken in accordance with the terms set forth in the Settlement Agreement shall constitute, be construed as or be deemed to be evidence of or an admission or concession by the Named Plaintiffs or Settlement Class Members of the absence of any liability or violation of any statute or law by the Defendants or the absence of any liability or wrongdoing by the Defendants or be used or deemed or construed to rebut any claims alleged by the Named Plaintiffs or Settlement Class Members in either the District Court or the Court of Appeals or the Supreme Court. The Named Plaintiffs expressly and fully reserve all their rights to advance all their claims and seek class certification and entry of judgment if for any reason this Settlement does not become final as provided in Paragraph 3(d). 13

51 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 15 of EXECUTION IN COUNTERPARTS. This Settlement Agreement may be executed in counterparts. Signatures transmitted by facsimile or other electronic means shall be considered as valid signatures as of the date hereof. [The remainder of this page is intentionally left blank.] 14

52 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 16 of 29 IN WITNESS WHEREOF, the Parties hereto through their fully authorized representatives have agreed to this Settlement Agreement as of May 18,

53 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 17 of 29 By: c :-,7 / L- f Merrill G. Davidoff, Esquire David F. Sorensen, Esquire Berger & Montague, P.C Locust Street Philadelphia, P A Phone: mdavidoff@bm.net dsorensen@bm.net r ) ~+-- J Dated: _:..._ IY1[0 _1J [)._0_/6_ Counsel for Named Plaintiffs and Settlement Class Members I By: Michael A. Glackin Assistant General Counsel Litigation and EH&S Legal The Dow Chemical Company Dated: By: J. Steven Rogers Chief Counsel The Boeing Company Dated: By: Gary B. Blum, Esquire Steven W. Kelly, Esquire Silver & DeBoskey, P.C York Street Denver, CO Phone: blumg@s-d.com kellys@s-d.com Dated: By: Douglas M. Hagerman SVP, General Counsel & Secretary Rockwell Automation, Inc. As indemnitor to Boeingfor Boeing's obligations under this Settlement Agreement Dated: Counsel for Named Plaintiffs and Settlement Class Members By: Louise Roselle Paul M. De Marco Markovits, Stock & DeMarco 16

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60 Case 1:90-cv JLK Document Filed 07/15/16 03/30/17 USDC Colorado Page 24 of 29 EXHIBIT A 18