In re World Trade Center Disaster Site Litigation , 762 F. Supp. 2d 631 ( 2010 )

ORDER ACCEPTING REPORT OF SPECIAL COUNSEL AND PROVIDING FOR EFFECTIVENESS OF SETTLEMENT

ALVIN K. HELLERSTEIN, District Judge:

I conducted a hearing on December 22, 2010, to consider and regulate two issues necessary to be resolved to consummate the Affirmation of Final Settlement as provided by § XXII of the Settlement Process Agreement, As Amended (“SPA”): (1) the report by the Special Counsel, appointed by my Order of November 24, 2010, concerning the intentions of persons on the Eligible Plaintiffs List (“EPL”) of the SPA (a) to enter into the settlement, (b) to opt out of the settlement and to continue with their cases, or (c) to dismiss their cases, or have their cases dismissed, with prejudice; and (2) issues to be resolved prior to the Parties’ readiness to execute the Affirmation of Final Settlement Agreement. After hearing the parties, I rule as follows:

1. The written report of the Special Counsel, Michael Hoenig, Esq., and Herzfeld & Rubin, P.C., is accepted and ordered to be filed. The report is attached as Exhibit D to this Order. Mr. Hoenig’s conclusions are the subjects of the rulings that follow.

2. The Special Counsel communicated, and exerted best efforts to communicate, with 546 Eligible Plaintiffs, as defined and identified by the SPA, who had not expressed an intention regarding the settlement. This pool included all individuals who had voluntarily dismissed their claims pursuant to Federal Rule of Civil Procedure 41 prior to his appointment. The Special Counsel’s efforts have produced the following results:

a. 45 Plaintiffs have stated their intentions to be added to the list of Plaintiffs opting into the settlement. The Special Counsel has provided this information to Plaintiffs’ regular counsel, and I am advised that Plaintiffs’ regular counsel have transmitted the appropriate paperwork for these Plaintiffs to counsel for the WTC Captive Insurance Company, who have included these Plaintiffs in the settlement.

b. 29 Plaintiffs opted out of the settlement with the intention to continue with their cases. These 29, and the approximately 123 others who previously expressed their intentions to continue with their cases, will be the subjects of a status conference I have scheduled to be held February 2, 2011, at 2:15 pm.

c. 48 plaintiffs asked that their cases be dismissed. All 48 were made aware that all dismissals would be with prejudice, by Court Order. Their cases are being dismissed with prejudice by separate Order pursuant to Federal Rule of Civil Procedure 41(a)(2).

d. 409 Plaintiffs could not be found, or failed or refused to respond to their lawyers’ efforts, and to Special Counsel’s efforts to locate and communicate with them. By failing to maintain communications and provide instructions to their attorneys, despite numerous efforts by their lawyers and the Special Counsel whom I appointed, they have failed purposefully and intentionally to prosecute their cases. Their cases are being dismissed with prejudice by separate Order pursuant to Federal Rule of Civil Procedure 41(b). Consistent with the terms of the dismissal Order, any motion by these Plaintiffs to reinstate their cases, pursuant to Federal Rule of Civil Procedure 60(b), must be made within 30 days of this Order,

e. 13 individuals presently named as Plaintiffs are deceased, which has led to additional complexities involving the status of their cases. The Special Counsel is presently working to solve the issues arising in these cases, and a report on his progress shall be provided to the Court in due course. These cases shall remain open for the time being.

3. A Plaintiff whose case is dismissed with prejudice is to be removed from the EPL. Accordingly, the Plaintiffs dismissed pursuant to this order and the companion orders also issued today, 457 in number, are to be subtracted from the EPL. See SPA § VI.A.

4. Although counted among the settling Plaintiffs, some Plaintiffs have had deficiencies in their individual settlement documents, and the parties have been working to clear up these deficiencies to ensure a complete release and an initiation of settlement payments. These Plaintiffs are subject to the following orders.

a. 52 Plaintiffs, including Derivative Plaintiffs, although clearly expressing their intention to settle and to release and not to sue Defendants in accordance with the SPA, have done so by documents containing various imperfections. A list of these Plaintiffs is attached as Exhibit A — Primary Plaintiffs and Exhibit A — Derivative Plaintiffs (“Exhibits A”). I rule that the imperfections and deficiencies do not diminish or undermine the legal effect of the documents. The 27 Primary Plaintiffs and 25 Derivative Plaintiffs identified on the respective Exhibits A are hereby deemed to have executed legally binding Releases and Second Injury Letters, and the Primary Plaintiffs have opted into the settlement for purposes of satisfying the Opb-In Threshold. Primary Plaintiffs and Derivative Plaintiffs on Exhibits A also are eligible to receive all payments due them under the Final Settlement Agreement, and are bound by the terms and conditions of the releases as set forth in Exhibit P to the SPA.

b. Another group of Plaintiffs, including Derivative Plaintiffs, although also having evidenced their intention to settle, have failed to execute properly the appropriate documents. A list of 79 Primary Plaintiffs in this category is attached as Exhibit B, and a list of 288 Derivative Plaintiffs in this category is attached as Exhibit C. With regard to these Plaintiffs, I rule as follows.

(i) Primary Plaintiffs identified on Exhibit B shall be deemed to have opted into the SPA for purposes of satisfying the Opt-in Threshold, but shall not receive any payments under the SPA until their respective deficiencies have been cured, or until further order of the Court. Fees or expenses relating to such Plaintiffs shall not be paid until the deficiencies are cured. The Parties shall attempt to resolve any disputes over deficiencies with the assistance of the Special Masters before seeking relief from the Court, (ii) Derivative Plaintiffs identified on Exhibit C have claims that derive and depend upon the claim of their settling spouse, who is the Primary Plaintiff. Each of these Derivative Plaintiffs has a Primary Plaintiff spouse who either (a) has executed a proper release, or (b) is listed on Exhibit B. All such Derivative Plaintiffs’ shall cure the deficiencies in their derivative releases before January 14, 2011. The related Primary Plaintiffs shall be deemed to have opted into the SPA for purposes of satisfying the Opt In Threshold, and the related Primary Plaintiffs’ claims will be evaluated by the Allocation Neutral. If any issues arise from separation or divorce, or from the death of spouses, those should be brought to the attention of the Allocation Neutral and the Parties by January 14, 2011, so that any necessary set-aside of derivative awards can be paid to the appropriate court. If, by January 14, 2011, the deficiencies are not remedied in accordance with this Order, the derivative claims may be dismissed with prejudice.

5. The SPA provides additional compensation to the settling Plaintiffs if the overall opt-in rate exceeds the minimum required threshold, ninety-five percent of Eligible Plaintiffs. For every additional one percent over the minimum, the WTC Captive Insurance Company must pay an additional two percent of the base settlement amount, or $12.5 million, over and above the base amount of $625 million. At opt-in rates exceeding ninety-eight percent, the WTC Captive Insurance Company must pay two-tenths of one percent (.2 percent) of the base settlement amount for every one-tenth of one percent (.1 percent) over the minimum. This amounts to an added $1.25 million for every one-tenth of one percent (.1 percent) over the 98 percent threshold. See SPA §§ IV.E, II.A. Additional amounts of incentive payments may be available based on other criteria. See id. §§ II.A, IV. The WTC Captive Insurance Company represents that, before adjustment for dismissals, ninety-six and three-tenths percent (96.3 percent) of the Eligible Plaintiffs had opted into the settlement agreement. This figure, however, does not account for dismissals with prejudice provided in today’s Orders; these should be removed from the EPL, see SPA § PV.A., and the ratio for calculating the opt-in percentage adjusted. It appears, prima facie, that after removing these dismissed Plaintiffs from the EPL, the final percentage of Plaintiffs who have opted into the settlement exceeds ninety-eight percent. It follows that the amount of incentive payments should be $37.5 million at ninety-eight percent plus whatever fractional percentages over and above ninety-eight percent reflect the actual ratio of settling Plaintiffs to Eligible Plaintiffs who have not been dismissed with prejudice, as well as whatever additional incentive payments may be triggered.

6. Immediately following the report of the WTC Captive Insurance Company, fixing the several numbers identified in this Order, and the entry of this Order, the Affirmation of Final Settlement shall be signed and, as provided by the SPA, the payments thereunder shall duly issue by the Allocation Neutral to the Plaintiffs entitled thereto.

7. The WTC Captive Insurance Company, or any other party feeling aggrieved by any term of this Order or the dismissal Orders also issuing today, may file objections and supporting briefing by January 7, 2011, at 12:00 pm.

SO ORDERED.

Exhibit A — Primary Plaintiffs

Primary Plaintiff Derivative Plaintiff Civil Master

No. Last Name First Name Last Name First Name Action No. Docket

1 Carroll_Padraig_Carroll_Deirdre_06cvl3827 21mcl00

2 Diaz_Diego_Garcia_Veronica_07cv09089 21mcl00

3 Dilenna_Albert_05cv08877 21mcl00

4 Dunne_John_Dunne_Mary_06cvl3882 21mcl00

5 Golba_Fred_10cv00554 21mcl00

6 Hanson_Robert_ 06ev07309 21mcl00

7 Hubert_Frank_ 06cvll695 21mcl00

8 LoPresti_Laura_Lopresti_Peter_ 06cvl4809 21mcl00

9 Maklari_Dennis_Maklari_Linda_08cv00728 21mcl00

10 McGlyn_John McGlyn_Kim_06cvl4858 21mcl00

11 McKee_Evelyn_Mckee_Shaun_07cv04389 21mcl00

12 Mitchell_Solomon_Mitchell_Victoria_06cvl4883 21mcl00

13 Montgomery Peter_Montgomery Jacalyn_06cvl2337 21mcl00

14 Nicotra_Doreen Nicotra_Stephen_06cvl4056 21mcl00

15 Nunez_Marino_Nunez_Magnolia_07cvl0248 21mcl00

16 Sparacia_Christopher Sparacia_Dawn_06cv09220 21mcl00

17 Taylor Sondra_Taylor, Sr. Robert_08cvll445 21mcl00

18 Trance Michael Trance Evelyn 06cvl5098 21mcl00

19 Foremska Lucyna Foremska Tadeusz 05cv03090 21mcl02

20 Galvis Edgar 06cv03422 21mcl02

21 Tabares Liiliana 07cv08289 21mcl02

22 Caivinagua Juan 07cv01574 21mcl03

23 Gallego Carmen Gallego Salazar 07cv00062 21mcl03

24 Jones James 06cvll700 21mcl03

25 Leon Cesar Dipini Agnes 07cv00063 21mcl03

26 Quizhpi Nelly Sinchi Victor 08cv04941 & 07cv01535 21mcl03

27 Riera Carlos 07cv01518 21mcl03

Exhibit A — Derivative Plaintiffs

No. Primary Last Name Plaintiff First Name Derivative Last Name Plaintiff First Name Civil Action No. Master Docket

Arellano Lorenzo Arellano Tricia 05cv01082 21mcl00

Arthur Kenrick Vines Valerie 06cvl0603 21mcl00

Athanassiou Theo Athanassiou Helen 06cvlll56 21mcl00

Bryan Raymond Bryan Sheila 06cvll632 21mcl00

Dunne John Dunne Mary 06cvl3882 21mcl00

6 Edwards Keith Edwards Maria 06cv08958 21mcl00

Hill Kelvin Hill Diana 07cv09124 21mcl00

8 Keane Robert Keane Cathy 06cvl0371 21mcl00

Maklari Dennis Maklari Linda 08cv00728. 21mcl00

10 McGlyn John McGlyn Kim 06cvl4858 21mcl00

11 Mulcahy Daniel Mulcahy Siobhan 06cvl0667 21mcl00

12 O’Neill Daniel O’Neill Grisell 06cvl0620 21mcl00

13 Rhiman Alim Rhiman Bibi 06cvl2444 21mcl00

14 Solimán Elsayed Elsayed Doris 05cv03693 21mcl00

15 Thomson Dennis Thomson Anita 05cv01630 21mcl00

16 Tierney Brian Tierney Denise 06cvlll24 21mcl00

17 Trance Michael Trance Evelyn 06cvl5098 21mcl00

18 Gavidia Blanca Gavidia Alexo 07cv04468 21mcl02

19 Guiracocha Samuel Guiracocha Rosa Matilde 06cvl2120 21mcl02

20 Kowalczyk Adam Kowalczyk Sabina 06ev02252 21mcl02

21 Vivar David Vivar Luz 07cv05390 21mcl02

22 Alvarez-Garcia Hernando Alvarez Ligia 07cvll016 21mcl03

23 Khan Imtiaz Khan Bibi 06cvl2182 21mcl03

24 Martin Craig Martin Beatrice 06cv08035 21mcl03

25 Sandoya Henry Alvarez Gloria 07cvll025 21mcl03

Exhibit B

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

1 Alessi John Alessi Sunshine 07cv08864 21mcl00

2 Anzalone Robert Anzalone Ann Marie 05cv01627 21mcl00

3 Athanassiou Theo Athanassiou Helen 06cvlll56 21mcl00

Primary No. Last Name Plaintiff Derivative Plaintiff Civil Master First Name Last Name First Name Action No. Docket

4 Bishun Kampta Bishun Hassena 07cv04314 21mcl00

5 Blount Anthony 09cv03307 21mcl00

6 Boyles Melba Finlator Michael 06cvl0258 21mcl00

7 Calabrese Mathew Calabrese Linda 06cv08954 21mcl00

8 Capobianco Kenneth Capobianco Michele 06cvl4531 21mel00

9 Carter Yannique 06cvl4538 21mcl00

10 Citara, Sr. John 08cv00642 21mcl00

11 Dacunto Robert Dacunto Nancy 06cv09024 21mcl00

12 Dalton Charles 03cv00006 21mcl00

13 Davis Jacqueline Manzo Michael 06cv08032 21mel00

14 DeSalvo Jack DeSalvo Jennifer 06cvl4604 21mcl00

15 DeSio James DeSio Kim 06cv07389 21mcl00

16 Dobbins James Dobbins Jacqueline 06cvl2028 21mel00

17 Elei Thomas Elci Rosaría 06cv09993 21mcl00

18 Ford Jeffrey Ford krista 06cvl0557 21mcl00

19 Fox Robert Fox Ana 05ev01070 21mcl00

20 Francisco Vladimir 06cvll762 21mcl00

21 Garcia Franklin 06cv09560 21mcl00

22 Golba Fred 10cv00554 21mcl00

23 Harris Eugene Newton-Harris Yolanda 05cy01382 21mcl00

24 Hill Kelvin Hill Diana 07cv09124 21mcl00

25 Howlev William Howley Mary 06cvll694 21mcl00

26 Hudak Richard Hudak Carole 07cv08897 21mcl00

27 Johnson Raymond 06cvl2163 21mcl00

28 Johnson Rita 06cvl2766 21mcl00

29 Johnson, Jr. Robert Johnson Christine 03cv00007 21mcl00

30 Karen Howard Karen Deborah 07cvl0169 21mcl00

31 Kearns Jr. Thomas Kearns Mary Ann 06cvl4768 21mcl00

32 Kibler Robert 06cvll559 21mcl00

33 Lee Ricky 06cv08445 21mcl00

34 Martinez Hector Martinez Rosanna 06cv09126 21mcl00

35 Mayers Cedric 06cv08460 21mcl00

36 McKeon Eugene McKean Cynthia Notice of Claim 21mcl00

37 McMillan Mary 06cv07319 21mcl00

38 Mendez. Jr. Nelson 06cvl4871 21mcl00

39 Mills Robert 06cv08474 21mcl00

40 Murray Bridget Dorsett Floyd 06cvl2794 21mcl00

41 Nieves Antonio Nieves Jessica 06cvl2372 21mcl00

42 Norburv John McArdle Gia 06cv06796 21mcl00

43 Petting William Petting Michele 05cv01717 21mcl00

44 P’Rourke Kevin P’Rourke Stacey 05cv01791 21mcl00

45 Pelhngton Stephen Pellington Andrea 09cv03405 21mcl00

46 Pines Anthony Pines Emma 06cvl0437 21mcl00

47 Ponce Richard 06cv09673 21mcl00

48 Powell Issac 05cv01612 21mcl00

49 Riccardi Joseph Riccardi Maria Notice of Claim 21mcl00

50 Roberts Edwin Roberts Evelyn 07cvl0832 21mcl00

51 Russo James 08cv04665 21mcl00

52 Ryan Christopher Ryan Erin 05cv01632 21mcl00

Primary No. Last Name Plaintiff Derivative Plaintiff Civil Master First Name Last Name First Name Action No. Docket

Saitta Daniel Saitta Laura 07cv09180 21mcl00

54 Scacchi Luigi Mancini Giuseppina 07cvl0843 21mcl00

55 Schmidt Charles 06cvl0157 21mcl00

56 Serrano Jose 06cvll584 21mcl00

57 Solis Oscar Solis Sandra 06cv07551 21mcl00

58 Spagnola Joseph Spagnola Wendy 06cvl5074 21mcl00

59 Tavarez Ruth 06cv07255 21mcl00

60 Timashev Marat Timasheva Guzalya 07cv06518 21mcl00

61 Truglio Steven Truglio Aleksandra 06cvl5101 21mcl00

62 Valarezo Wilson Obando-Aguire Sara 06cv07564 21mcl00

63 Valerga Paul Valerga Tracy 08cv00804 21mcl00

64 Valerio Joseph Valerio Patti 06cvl0893 21mcl00

65 Weeks Raul Weeks Ana 05ev02551 21mel00

66 Zachar Kenneth Zachar Daniella 06cvl2639 21mel00

67 Alvear Santiago Carpió Martha 06cv02220 21mcl02

68 Delacruz Gloria Delacruz Ramon 07cv01599 21mcl02

69 Guerrero Antonio 07cv05294 21mcl02

70 Morales Segundo_Morales Dolores 07cv01668 21mcl02

71 Pumacuri Manuel 09ev03453 21mcl02

72 Valdiviezo Hector Casado Veronica 07cv01542 21mcl02

73 Zamora Bolivar Huiracocha Fanny 08cv02740 21mcl02

74 Azubike Victor Azubike Tekrisha 07cv09058 21mcl03

75 Cesta Monte Mesa Elaine 08ev02597 21mcl03

76 Giraldo Hitier 07ev05554 21mel03

77 Marshall Donna 07cv05417 21mcl03

78 Naranjo Adolfo Alcivar Doris 08cv02295 21mcl03

79 Salwa Jan Salwa Irena 08cv02707 21mcl03

Exhibit C

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

1 Addonisio Nick Addonisio Lisa 07cv08862 21mel00

2 Agnelli Anthony Agnelli Rose 06cvll882 21mcl00

3 AMI Okpara AM Ronnita 06cvll905 21mcl00

4 Alaimo Salvatore Alaimo Donna 05cv09330 21mcl00

5 Alexander Victor Alexander Geraldine 07cv04405 21mel00

6 Audino Joseph Audino Audrey 06cv09965 21mel00

7 Bagiokos Sarantos Bagiokos Patricia 06cv07938 21mcl00

8 Barnes Milton Barnes Bernice 05cv09953 21mcl00

9 Bavaro Paul Bavaro Carolyn 05cv01081 21mcl00

10 Bechtold William Bechtold Marie Elissa 07cv08867 21mcl00

11 Beck James Beck Christine 06cvl0706 21mcl00

12 Benn Richard Benn Ann 07cv09064 21mcl00

13 Bennett Howard Bennett Donna 05cv01424 21mcl00

14 Bishun Kampta Bishun Hassena 07cv04314 21mcl00

15 Blackwood Andre Blackwood Karen 06cvl0251 21mcl00

16 Boccanfuso Bryan Boccanfuso Tina 06cvl2848 21mcl00

17 Bomhoff John Bomhoff Joanne 06cvll543 21mcl00

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

18 Bonanno_Anthony Bonanno_Stephanie 06evl0253 21mcl00

19 Booth_Paul_Booth_Julie_06cv09271 21mcl00

20 Bourne_Thomas_Bourne_Joann_08cv01351 21mcl00

21 Bovell_Leon_Bovell_Stephanie 06cvl3618 21mcl00

22 Bratian_Jeffrey_Bratian_Brandi_07cvl0084 21mcl00

23 Brumbaugh Ronald_Brumbaugh_Joanne_06cv08343 21mcl00

24 Bustamante Enrique Bustamante_Lusmila_06cvl2711 21mcl00

25 Butler_Julio_Butler_Regina 07cv04338 21mcl00

26 Cacovic Alexander DeMasi-Cacovic Antionette 05cv04222 21mcl00

27 Caggiano_Victor_Caggiano Sofia_06cvl3815 21mcl00

28 Calabrese_Mathew_Calabrese_Linda_06cv08954 21mcl00

29 Calzolano_Steven_Calzolano_Debra Ann 06cvl0721 21mcl00

30 Campbell_Howard_Campbell_Karlen_ 07cv09078 21mcl00

31 Caputo_Joseph_Caputo_Susanne_07cv04890 21mcl00

32 Cardona_Leslie_Matter_Ron_07cv04891 21mcl00

33 Carrion_Isidro_Carrasquillo_Teresa_09cv03320 21mcl00

34 Caruso_Troy_Caruso_Susan_07cv05194 21mcl00

35 Cassabria_Richard_Cassabria_Mary_07cv04895 21mcl00

36 Chaeko_Ninan_Chacko_Sara_06cvl2717 21mcl00

37 Chambers_Michael_Chambers_Patricia Ann 05cv02651 21mcl00

38 Chinga_Mario_Chinga_Samantha 06cv09015 21mcl00

39 Chopping_Roy_Chopping _Jennifer_06cv09276 21mcl00

40 Colev_Farris_Coley_Sallie_06cv07377 21mcl00

41 Colucci_Brad_Colucci_Patricia_06cv08666 21mcl00

42 Conrad_Joseph_Conard_Joan_06cvl4568 21mcl00

43 Coughlin_John_Coughlin_Janet_06cvll894 21mcl00

44 Coveny_Michael_Coveny_Nancy_09cv02202 21mcl00

45 Croswell_George_Croswell_Roeina_06cv09525 21mcl00

46 Cuccaro_Michael_Cuccaro_Anna_06cv08367 21mcl00

47 Cuevas_Jaime_Cuevas_Daphne_06cv08589 21mcl00

48 Cupani_Robert_Cupani_Nancy_06cvl3858 21mcl00

49 Davis_Rodney_Davis_Jennifer_06evlll72 21mcl00

50 Defreitas_Derrick_Howard_Janel_06cvl2021 21mcl00

51 DeJesus_Richard_DeJesus_Eliza_06cv09031 21mcl00

52 Dellecave_Salvatore Dellecave_Kimberly 08cv01369 21mcl00

53 DeLuce_Stephen DeLuce_Patricia_06cvl0739 21mcl00

54 Demaria_Frank_Demaria_Lisa_09cv03343 21mcl00

55 DeMasi_Nicholas DeMasi_Chris_06cvl2732 21mcl00

56 Diaz_Diego_Garcia_Veronica_07cv09089 21mcl00

57 Dilenna_Albert_Dilenna_Vito_05cv08877 21mcl00

58 DiLeo_Frank_Dileo_Assuntina 06cv03316 21mcl00

59 Pilone_Pedro_Pilone_Estrella_06cv08382 21mcl00

60 DiMartino_James_DiMartino_Xiomara 06cvl2735 21mcl00

61 Dispigna_Pat_Dispigna_Renee_05cv07685 21mcl00

62 Dobbins_James_Dobbins_Jacqueline 06cvl2028 21mcl00

63 Dombrowski Julia_Dombrowski John_06cvl2030 21mcl00

64 Donohue_Guv_Judge_John_06cv08762 21mcl00

65 D’Ornellas_Manuel_Lambert_George_07cvl0097 21mcl00

66 Dorrmann Robert Dorrmann Christina 06cvl3879 21mcl00

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

67 DuBois_Richard Dubois_Tara_08cv00665 21mcl00

68 Dunworth_Michael_Dunworth_Rosemarie 09cv03349 21mcl00

69 Purler_David_Purler_Nanci_07cv08959 21mcl00

70 Dziubela_Richard Dziubela_Carolann_06cv08595 21mcl00

71 Erler_Richard_Erler_Barbara_06evl0125 21mcl00

72 Esposito_Paul Esposito_Corrine_06cv08394 21mcl00

73 Failla_Louis_Failla_Kerriann_06cvl0750 21mcl00

74 Farrell_Charles_Farrell_Maria_06cvl4638 21mcl00

75 Farrell_Daniel_Farrell_Catherine 06cv08396 21mcl00

76 Farrell_Robert_Schultleis_Maura_05cv01433 21mcl00

77 Ferraro_Dominic Ferraro_Barbara_07cvl0769 21mcl00

78 Ferro_Albert_Ferro_Gina_06cv09551 21mcl00

79 Fisher_Carl_Fisher_Donna_04cv09083 21mcl00

80 Fitzpatrick Patricia_Fitzpatrick_Abigail_08cv06643 21mcl00

81 Francis_Orville_Francis_Margaret 06cv08597 21mcl00

82 Frey_Keith_Frey_Elizabeth 06cvl2077 21mcl00

83 Fuller_Roy_Fuller_Karen_06cvl0759 21mcl00

84 Furia_Mark_Furia_LeeAnn_06cvl3912 21mcl00

85 Galvin_John_Galvin_Eileen_08cv04637 21mcl00

86 Gelpi_Manuel_Gelpi_Carmen_07cv09210 21mcl00

87 Giannandrea Garry_Giannandrea Barbara_06cv02959 21mcl00

88 Gilmartin_Brian_Nagle_Irene_06cvl4685 21mcl00

89 Giovacco_Ralph_Giovacco_Dawn-Marie 06cv09566 21mcl00

90 Godwin_Eugene_Godwin_Andrea 06cvl0659 21mcl00

91 Goodwill_Aubrey_Goodwill_Morelda_06cvl0329 21mcl00

92 Graziano_Maria_James_Anthony_07cv04954 21mcl00

93 Gronberg_Richard_Gronberg_Daria_09cv03365 21mcl00

94 Guarino_Alan_Guarino_Susan 06cvl0768 21mcl00

95 Haner_Jeff_Haner_Ann 06cvll023 21mcl00

96 Harrington Michael Harrington_Jill_06cvll692 21mcl00

97 Harris_Eugene_Newton-Harris Yolanda_05cv01382 21mcl00

98 Harwood_Ronald_Tozer_Brenda 06cvl2132 21mcl00

99 Haynes_William_Haynes_Leah_06cvl0346 21mcl00

100 Hecht. Jr._Marc_Hecht_Faye_06cvl4716 21mcl00

101 Henderson_William_Henderson_Maria_05cv01234 21mcl00

102 Hernandez_Jerson_Hernandez_Lillian_07cvl0161 21mcl00

103 Hickey_Peter_Hickey_Pamela_06cv09081 21mcl00

104 Houck_Charles_Houck_Jill_06cvl2260 21mcl00

105 Hubert_Frank Hubert_Lauri 06cvll695 21mcl00

106 Hunter_William_Hunter_Desirae_06cvll697 21mcl00

107 Jackson_Anthony Gilliens-Jackson Janine_06cv08427 21mcl00

108 Jackson_Paul_Jackson_Kathleen_05cv01499 21mcl00

109 Johnson_Brendan Johnson_Jane_06cvl0367 21mcl00

110 Johnson_Darrell_Johnson_Rhonda_06cvl2159 21mcl00

111 Johnson. Jr. Robert_Johnson_Christine 03cv00007 21mcl00

112 Jones_Robert_Jones_Joyce_06cv07449 21mcl00

113 Khan_Shawn_Khan _Suzanne_06cvll558 21mcl00

114 Khealie_Ralph_ Khealie_Shirley _07cv04194 21mcl00

Jeff 115 Kleiman Kleiman Diane 06cvl4775 21mcl00

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

116 Lambkin_John_Lambkin_Jane_06cvl0041 21mcl00

117 Latimore-Harp Dorothy Harp_Jeffrey_06cvl0043 21mcl00

118 Lavore_Giuseppe Lavore_Kathryn_06cv08443 21mcl00

119 Lee_Ryan_Lee_Kalena_06cv09300 21mcl00

120 Leger-Vargas Guilaine Vargas_Hector_06cv08907 21mc100

121 Leone_Domenico Leone_Isabella_08cv00714 21mcl00

122 Lopez_Rene_Lopez_Juhenne_06cvl3612 21mcl00

123 LoPresti_Laura_Lopresti_Peter_06cvl4809 21mcl00

124 Loughlin_Thomas_Loughlin_Tracy_06cv09623 21mo100

125 Lubeck_Victoria_Lubeck_Jason_06cv09838 21mcl00

126 Luna_Manuel_Rivera_Boroido_07cv08907 21mcl00

127 Luongo_William Luongo_Gloria_06cvl0387 21mcl00

128 Luparello_Alessandro Luparello_Florence_06cv09624 21mcl00

129 Lynam_James_Lynam_Athena_06cvll865 21mcl00

130 Maddalena_Erasmo_Maddalena_Antonia_05cv01710 21mcl00

131 Madden_Eugene_Madden_Karen_06cv09304 21mcl00

132 Maggiore_Dominick Maggiore_Rose Ann 07cvl0798 21mcl00

133 Maguire_Peter_Maguire_Lisa_07cv05137 21mcl00

134 Maher_James_Maher_Rosemary 06cv06919 21mcl00

135 Maher_John_Maher_Rosemary 07cv04197 21mcl00

136 Malave_James_Malave_Soraya_07cv09142 21mcl00

137 Malone_John_Malone_Lisa_08cv04648 21mcl00

138 Mangan-Nadal Constance Nadal_Edwin_06cv07316 21mcl00

139 Martin_Kevin_Martin_Karen_06cv09629 21m cl 00

140 Martinez_Luis_Martinez_Suzanne_06cvl0665 21mcl00

141 Mastrande_Guy_Mastrande_Silvina_06cvl0393 21mcl00

142 Mazza_Thomas_Mazza_Darann_06cv08698 21mcl00

143 McAuliffe_John_McAuliffe_Jeanne_06cv09805 21mcl00

144 McCann_Daniel_McCann_Karen_06cv03315 21mcl00

145 McCarthy_Jessy_Mungen_Jason_06cv07247 21mcl00

146 McCaskev_Robert_McCaskey_Patrice_08cv01398 21mcl00

147 McEwan_Tom_McEwan_Syzzette_06cvl4856 21mcl00

148 McHugh_Thomas_McHugh_Diane_07cvl0014 21mcl00

149 McKee_Evelyn_Mckee_Shaun_07cv04389 21mcl00

150 McNamara Robert_McNamara_Lisa_06cvl4863 21mcl00

151 Miller_Richard_Miller_Amy_07cvl0813 21mcl00

152 Miller_Steven_Miller_Noreen_06cv09641 21mcl00

153 Miller_Taiwo_Miller_Stephanie 06cvl2325 21mcl00

154 Mitchell_Solomon Mitchell_Victoria_06cvl4883 21mcl00

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163 Napolitano_John_Napolitano_Marie_06cvl0145 21mcl00

164 Nieves Antonio Nieves Jessica 06cvl2372 21mcl00

Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

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166 O’Connor_Patrick_O’Connor_Lisa_07cvl0194 21mcl00

167 Oakes_Darren_Oakes_Maria_06cvl0425 21mcl00

168 O’Brien_John_O’Brien_Linda_06cvl0668 21mcl00

169 O’Dea_Thomas_O’Dea_Lisa_08cv04656 21mcl00

170 Ohlson_Linda_Ohson_Rudy_06cvl0067 21mcl00

171 Orellana_Johnny_Orellana_Linda_06cvl4935 21mcl00

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Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

213 Tarawally_Alpha_Tarawally_Kadiatu_06cv09729 21mcl00

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259 Carlisi_Michael_Carlisi_Tara_06cv02819 21mcl03

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Primary Plaintiff Derivative Plaintiff Civil Master No. Last Name First Name Last Name First Name Action No. Docket

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262 Dominguez Tailor_Dominguez_Juanna_08cv02266 21mcl03

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280 Rodas_Patricio_Ruiz_Taina_07cv01694 21mcl03

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282 Romaniuk_Mieczyslaw Romaniuk_Maria_07cv05316 21mcl03

283 Stanford_Phillip_Stanford_Susan_08cv05157 21mcl03

284 Szynkowski Zbigniew Szynkowska_Ewa_08cv02308 21mcl03

285 Torres_Felix_Torres_Maria_06cv01675 21mcl03

286 Vanfechtmann Edward VanFechtmann Lorraine_07cv01719 21mcl03

287 Vitiello_Andrew_Vitiello_Sylvia_06cv09244 21mcl03

288 Wragg_Clarence Wragg_Cecilia_06cv08125 21mcl03

Exhibit D

Honorable Alvin K. Hellerstein

U.S. District Court for the

Southern District of N.Y.

In Re WTC Disaster Litigation

REPORT TO THE COURT:

SPECIAL COUNSEL PROJECT

Dear Judge Hellerstein:

Attached is our Report on the Special Counsel Project assigned to me in your Honor’s Order of November 24, 2010. We elaborate the outreach steps considered, the methodology utilized and the results of our communications with some 546 Eligible Plaintiffs who, at the time of our assignment, had not yet opted into the Settlement Process Agreement.

Many hundreds of these had not responded to their lawyers’ communications. Your Honor’s Order suggested that there were frustrations behind the non-responses. Our contacts with many of these plaintiffs confirmed that.

Based on written response forms returned to us, substantive telephone conferences with plaintiffs or in-person meetings with some, a significant number of Eligible Plaintiffs expressed a decision on how they wished to proceed. The total numbers are as follows:

Opt Ins: 44

Opt Outs: 31

Discontinuances: 47

Three additional written responses came in after the December 17 deadline (two Opt Outs and one Discontinuance).

If you subtract from the 546 Eligible Plaintiffs originally “assigned” to us the 125 who expressed a definitive choice, the number not responding with a decision on how to proceed is 421.

We have back-up and log data for communications, contacts and response/non-response records for each Eligible Plaintiff on the list received from plaintiffs’ counsel. If you require, we can generate a spreadsheet.

We received excellent and unreserved cooperation from William H. Groner and Christopher LoPalo of plaintiffs’ law firm. They made our task easier, which was much appreciated given the narrow time frame and the large number of persons needing outreach. We mailed to 544 plaintiffs. We telephoned at least 256 plaintiffs, often multiple times. We engaged in substantive telephone discussions with 128 plaintiffs. We met in person with seven individuals in our New York and Long Island offices. These meetings included two of the first plaintiffs who are among the most vocal and critical of the litigation process and settlement plan. We followed up with them at length by telephone several times. Virtually all of the plaintiffs we engaged in substantive discussions were appreciative for the assistance.

I will not specify here the plaintiffs’ questions that our team lawyers addressed but there were many and they were quite complex.

In view of our rush to get the Report to you, please consider the foregoing a kind of “Executive Summary.” If you wish a more formal Executive Summary, we will be happy to provide it.

Needless to say, if you have any questions we will try to answer them,

Thank you for this challenging assignment and your confidence in our ability to tackle it.

Sincerely,

Michael Hoenig Michael Hoenig, Esq.

Herzfeld & Rubin, P.C.

125 Broad Street

New York, N.Y. 10004

Tel: (212)471-8530

Fax: (212)344-3333

E-Fax: (212)232-6630

mhoenig@herzfeld-rubin.com

* Please note our new address.

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CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This communication and any attachment to this communication is confidential, is intended solely for the use of the individual or entity to which this communication is addressed and is privileged and exempt from disclosure under applicable law. If you are not the intended recipient, you are strictly prohibited from all dissemination, distribution, copying or use of this communication or such attachment. If you have received this communication or any attachment to this communication in error, please immediately notify the sender by email or by calling (212) 471-8500 or one of the numbers above and Mete and destroy the communication or attachment you have received and all copies thereof. Receipt by an individual or entity, through misdirection, error or mistake, or by wrongful dissemination, does not waive any attorney client, work product or other legal or private privilege, and does not invalidate the sender’s requirement and expectation of confidentiality and privacy.

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In Re WTC Disaster Litigation REPORT TO THE COURT:

SPECIAL COUNSEL PROJECT

Introduction

In its Order dated November 24, 2010, the Court assigned to Michael Hoenig, a member of Herzfeld & Rubin, P.C., the task of acting as Special Counsel to hundreds of Eligible Plaintiffs who had not opted into the Settlement Process Agreement (SPA) to assist them in arriving at a decision in their best interests. These Eligible Plaintiffs consisted of several subgroups; persons who could not be located despite diligent efforts; persons who declined to communicate with their counsel; persons who expressed a desire to opt into the SPA but who had not completed their paperwork; and persons who were on the Eligible Plaintiffs list but who expressed a desire to withdraw from the lawsuit.

The Order tasked Special Counsel to assist such Eligible Plaintiffs to come to a decision on the basis of full and fair disclosure of all the benefits and detriments of each choice and to make proper declaration of such choice. The Order called for plaintiffs’ law firms to provide assistance and access to their records. Special Counsel’s services were to be performed until December 17, 2010 when they would end.

This Report summarizes the activities and methodologies utilized by Special Counsel in implementing the Court’s assignment and describes the results of that effort.

1. Initial Flood of Inquiries

The Court’s Order on the Special Counsel Project was announced on November 24, the day before Thanksgiving. Almost immediately, Special Counsel was personally deluged by phone calls from persons who were not Eligible Plaintiffs and who misunderstood the Court’s Order to be a general extension of a deadline within which to file new claims or lawsuits or to join in pending litigation or to opt into the settlement. They seemingly were misled by news media and press headlines and accounts of a general extension of the litigation deadline to December 17.

Arrangements were made within Special Counsel’s office to field such calls on an orderly, courteous basis. Names and contact information were taken and each such person was called thereafter to explain the nature of the deadline and the purposes of the Special Counsel Project. Those persons who needed legal advice were told to call the New York State Bar Association’s Attorney Referral Service and were given the number. Contacts from persons not on the Eligible Plaintiffs List continued throughout the Project.

The initial flood of contacts included calls or e-mails from news media reporters wanting to interview Special Counsel or to get details regarding the assignment. Such contacts were not returned for a number of reasons.

2. Initial Steps

Because November 25 was Thanksgiving and the Project involved acquiring expert knowledge of many details in a very short period of time, the initial days were spent obtaining and studying the Settlement Process Agreement (SPA), the cancer insurance policy, The Zadroga Bill, contacting plaintiffs’ lawyers, obtaining and studying their various letters to their clients (copy of which were appended to Counsel’s reports to the Court of November 17 and 22, 2010), and conferring with Special Master Professor Aaron D. Twerski regarding the history and course of the World Trade Center (WTC) litigation, among other efforts.

Because the Court’s Order mentioned that some 520 Eligible Plaintiffs had not opted into the SPA and Special Counsel’s assignment would end on December 17, consideration had to be given as to how to reach out to so many non-responding persons within the narrow time frame available and give them the information and advice necessary for them to make a decision in their best interests. We were told that many plaintiffs were not responding to their lawyers and quite a number were not able to be located despite diligent efforts by their counsel. As a result, we had to consider and potentially prepare for personal contacts with hundreds of lay persons to explain legal complexities regarding their rights. And, although under the SPA Eligible Plaintiffs fell into only four tiers or settlement categories, individuals’ injury pictures differed and the intricate “point system” applied under the SPA rendered complex the job of explaining many plaintiffs’ likely settlement offers plus the possibility of additional settlement amounts. These factors meant that explaining potential high and low settlement values to all individuals could entail personal analyses for each plaintiff, especially in tier 4. Time was thus needed to accommodate advising large numbers of persons.

We resolved to focus on establishing personal contacts with as many Eligible Plaintiffs as we could and to emphasize that we were independent Special Counsel available to help those who wanted such assistance. Because in-person meetings with large numbers of persons were possible, we had to consider the potential of meeting with hundreds of plaintiffs, either individually or in groups. This meant staffing adequately.

Legal complexities abounded. For example, to mention but a few, would opting into the SPA preclude claims for cancers occurring in the future? What would be the effect of the so-called “two-injury” rule the Court had mentioned in an earlier Order? What would be the interface of any of a plaintiffs choices with the benefits accorded under the Zadroga Bill were it to pass? What is the likelihood of success or risk in not settling and continuing on with the lawsuit? How will the Resolution Neutral decide what the plaintiffs settlement amount is? Can one appeal? And so on. These types of questions potentially raised by hundreds of individuals, it was clear, would require a staff of experienced lawyers to counsel those wanting assistance. Because, for many, these were critical crossroads decisions, we also needed paralegals to record and log in all contacts and decisions made by individuals.

Mr. Hoenig assembled a team of seven experienced litigators, one law clerk (awaiting admission to the bar) and a paralegal. The team was briefed extensively by Mr. Hoenig regarding the assignment; the importance of emphasizing our independence and availability to help those wanting it; the nature of the SPA; the insurance policy; the Zadroga Bill; Daubert considerations; the “two-injury” rule; and a host of other factors. A template for personal discussions by the team attorneys with individual plaintiffs was discussed so that some uniformity of communication would be effected, yet allow some flexibility to cover particularized or varied issues raised by individuals needing personal attention. Mr. Hoenig prepared the team regarding questions likely to be raised and the appropriate responses.

The Court’s November 24 Order called for cooperation by plaintiffs’ counsel and access to their records. We got it. Mr. Hoenig and his partner, Natalie Lefkowitz, conferred by phone with attorneys William H. Groner and Paul J. Napoli who offered their assistance. We decided that communications with plaintiffs’ counsel would be more effective if one or two contact persons were designated. They, in turn, could invoke the assistance of others in their office. Mr. Groner offered his own assistance “24/7” and he truly made good on that offer as Mr. Hoenig and Ms. Lefkowitz often called upon him to discuss implementation of the Project. Mr. Groner designated attorney Christopher LoPalo, another of Plaintiffs’ counsel, to be a contact person familiar with their records and plaintiffs’ personal data. Mr. LoPalo, too, did not disappoint. His cooperation was prompt and responsive to our requests. Mr. Groner also met with Special Counsel’s team in person, described the challenges to be expected in contacting the plaintiffs and answered questions. Mr. LoPalo provided last-known contact information regarding the Eligible Plaintiffs who had not yet opted in, as well as other data critical to our assignment. Information was supplemented by them as needed.

3. Developing A Plan of Action

Mr. Hoenig carefully reviewed the various letters plaintiffs’ counsel had sent to their clients and considered potential problems plaintiffs may have perceived with them. Since the Eligible Plaintiffs not responding to their counsel had already received this style of detailed correspondence, we resolved that any mailing to such plaintiffs should consist only of a simple letter offering Special Counsel’s help and emphasizing our independence. The mailing would be via priority mail, overnight delivery. It would include a stamped, self-addressed envelope and a simple form to be signed and returned immediately expressing a wish for such assistance or one of other specified choices. The mailing would also advise about our e-mail address and a toll-free number where the claimant could express his/her wish for help.

Depending on the number of responses and the available time frame, we resolved to have team attorneys available for as many personal meetings as feasible, including one-on-one or group sessions. We would make our offices in lower Manhattan (with sizeable conference rooms) and Long Island available and, if necessary, would rent a convenient hotel meeting room to accommodate an extremely large number of claimants seeking assistance, supplemented by break-out sessions with individual attorneys.

To accommodate those who work during the day, we would have attorneys available for meetings at night and during Saturdays and Sundays.

We would have a staff available to answer our toll-free number seven days a week until late at night. Thereafter, a recorded message would give callers instructions on leaving a name and telephone number so that the caller could be contacted the next day.

We considered placing ads in the N.Y. Times, Daily News, N.Y. Post and News-day, particularly to try to reach the non-locatable plaintiffs. However, upon reflection, we rejected this step. First, costly advertising to millions of newspaper readers in order to try to reach some 80-90 persons who might have relocated outside the New York area did not seem efficient or cost-effective. Second, based on the rush of calls experienced when the news broke about Special Counsel and the December 17 deadline, from those who were not Eligible Plaintiffs and with continuing contacts by such persons, we concluded that advertising to several millions of newspaper readers would invite numerous calls or contacts by those who were not Eligible Plaintiffs but would like to discuss suing or participating in a settlement. A further surge of such callers would distract us from the limited assignment spelled out in the November 24 Order.

We had contact information regarding a number of First Responder or WTC Support Groups and considered placing ads or articles in their newsletters or the group’s e-mail distribution channels but here, too, we concluded that persons other than non-located Eligible plaintiffs would rush to try to join litigation that had passed them by. Further, in order to pinpoint messages towards the non-located plaintiffs, we would possibly divulge information to the Responder universe that individual plaintiffs might like to keep private. Ultimately, we concluded that “finding” non-located plaintiffs could be achieved better by investigative efforts targeted at the individuals than by mass publications.

4. Implementation of the Project

There were 546 Eligible Plaintiffs who did not opt in to the SPA, according to the records of plaintiffs’ counsel. We ascertained that 13 of these were deceased. We obtained from plaintiffs’ counsel the names and addresses of 11 of the deceased’s family members or representatives but there was no information regarding addresses for two of the deceased Eligible Plaintiffs.

A. Mailings

Accordingly, we sent out 544 letters, by priority mail overnight delivery, to the Eligible Plaintiffs group within our assignment. The letter was a simple expression of our independence and availability to help. The mailing also enclosed a response form containing simply-stated choices to be made regarding further action. A box adjacent each choice would be checked and the signed form was to be returned in the enclosed, postage-paid, self-addressed envelope. Plaintiffs also were advised regarding our toll-free telephone number and our e-mail address. A sample Special Counsel letter and response form is attached as “Attachment 1.”

Only 10 undelivered, returned mailings reached us. We tried to follow up with each of the 10 Eligible Plaintiffs. Reasons for the returned mailings were:

• 2 “moved, not forwardable” — we tried to reach both by phone and via other telephone numbers, unsuccessfully;

• 1 “no such number” — there was no such house number; his phone number was not working;

• 1 “unclaimed” — we contacted him by phone and e-mailed him another form, which he did not return;

• 1 “no such street” — we contacted him by phone; he verbally expressed a wish to opt in and we so advised his counsel;

• 1 “undeliverable” — we spoke to the plaintiff and he sent in his form to opt in;

• 1 “not at this address” — this returned mailing reached us on December 20, 2010, after our Project had ended and, therefore, no further attempt was made;

• 1 “attempted not known” — our lawyer tried to call him and left a message on his cell phone number;

• 2 “vacant”- — we called the home and office of one plaintiff and both numbers were not in service; the other plaintiffs mailing reached us on December 20, 2010, after our Project had ended and, therefore, no further attempt was made.

Based on the foregoing, an overwhelming number of our mailings, 534, were delivered. Follow-ups on the 10 returned mailings resulted in a number of informative contacts nonetheless.

B. Dedicated Phone Line

We established a dedicated, toll-free phone line. Following the 544 mailings, the toll-free phone line was staffed during the day and up to 11:00 p.m. Thereafter, a recorded announcement invited callers to leave a message and provide contact information. All such calls were followed up the next day by Project team members. Notwithstanding the dedicated, toll-free number, both Mr. Hoenig individually and the office switchboard continued to receive numerous calls relating to the WTC litigation. All such callers were spoken to or contacted later by team members.

C. Return Forms

We received 91 written response forms, most in our postage-paid return envelopes. A few were faxed, e-mailed or sent by plaintiffs in their own envelopes. A few plaintiffs created inconsistencies by checking two boxes, for example, one for “opting out” and one for “discontinuance.” These were followed up by phone to clarify the choice.

D. Telephone Contacts

We followed up the mailings with telephone calls to at least 258 plaintiffs. Many involved additional multiple telephone contacts by Project team members because messages were left and then followed up or because we had alternate telephone numbers to try when one number did not result in a conversation. In excess of 600 calls likely were initiated.

Of the 258 plaintiffs we telephoned, we engaged in substantive conversations with 128 plaintiffs. These contacts ranged from brief conversations identifying our independence, our availability to help, our suggestion to return the response forms, our invitation to meet in-person or further by phone, and our answering questions plaintiffs had — to full-blown, lengthy discussions explaining their rights and other input relevant for decision-making. Thus, substantive telephone conversations engaged nearly 25% of the Eligible Plaintiffs within our assignment. This effort, as a practical matter, was arguably even more effective since the initial number of 546 Eligible Plaintiffs included some 90 or so originally listed by counsel as not beatable.

Of the 258 plaintiffs we reached by phone, we also left messages (often multiple) for some 130 persons and these were not returned. Most plaintiffs, when offered in-person meetings, elected to proceed substantively by telephone conference instead. This led to many lengthy phone calls, frequently followed by additional phone conversations.

E. In-Person Meetings

Although we offered all individuals we spoke with in-person meetings, only seven (7) such in-person meetings were held. Several were held at our Long Island office. In one of these the plaintiff did not show up. He then called our Project attorney, apologized and requested a meeting the next day. We accommodated his request. The rest of the in-person meetings were held in our N.Y. City office. One of these involved two plaintiffs at the same time. All in-person meetings were lengthy, substantive and deemed helpful by the individual plaintiffs all of whom expressed appreciation.

Even before our mailings were received, Mr. Hoenig received a request by two of the most vocal and knowledgeable “opt-out” plaintiffs for an in-person meeting. Both were Detectives who were the first plaintiffs in the litigation and both, over the years, had publicly expressed frustration and dissatisfaction with their attorneys’ representation and the benefits to be awarded under the SPA. Mr. Hoenig decided to meet with them at their earliest convenience because their outspokenness and visibility within the group would possibly reflect or inform about experiences and frustrations of the larger group of plaintiffs who chose not to respond to their counsel or to opt in to the settlement. Mr. Hoenig was accompanied at this meeting by a few Project team members. The meeting was lengthy, informative and helpful. A number of questions were raised by each plaintiff that Mr. Hoenig said he would try to answer for them in future contacts. The plaintiffs expressed their appreciation.

Thereafter, Mr. Hoenig and Ms. Lefkowitz followed up with repeated, sometimes lengthy and detailed phone conversations with each plaintiff individually. Although each such plaintiff eventually decided not to opt into the settlement, we believe they were informed adequately for purposes of making a decision.

F. Non-Locatable Eligible Plaintiffs

A large number of Eligible Plaintiffs were categorized by their counsel as not located despite diligent efforts to do so. The numbers varied from 93 to less than 80 at different times. We examined the nature of counsel’s efforts and found those efforts to be reasonable. Using these plaintiffs’ last known addresses and phone numbers, we mailed them the letters and response forms and followed up with attempted phone calls. We also engaged an internet search service to test the results of attempting by such means to find about a half-dozen tier 4 plaintiffs from the “notloeated” group. One of our Project lawyers followed up with this service. The process was time-consuming as these advertised internet search services usually introduce the searcher to still more search engines requiring further exploration. Proving to be an unsuccessful test, we tried an alternative approach. One of our technically-oriented paralegals conducted internet searches for nine of the tier 4 “not-located” plaintiffs, as a test. Although he developed additional numbers and locations for some six of the individuals, diligent follow-up showed that they were not correct information for the individuals involved. This approach was halted.

We considered use of an experienced private investigator to do the searches but the hourly charges, the number of hours needed for each person and the time available for our assignment made this an expensive, inefficient project. Additionally, our Project team members had to focus on substantive discussions with numerous Eligible Plaintiffs we were able to reach.

G. Responses — Written and Verbal

As indicated above, the response forms included in the mailing offered the plaintiffs choices of how to proceed. One category offered Special Counsel assistance. Others offered opt-in, opt-out, and discontinuance-of-action choices. (The forms also asked for insertion of their “best” contact information. This provided us with new numbers and alternative channels of communication).

In addition, these choices were discussed in our substantive telephone discussions and during in-person meetings. Thus, Eligible Plaintiffs’ expressed wishes were recorded by Project team members whether they were expressed via written response forms or personal meetings or telephone conversations. A log of contacts/responses was kept for each Eligible Plaintiff. If no response was received that, too, was noted. A small number of inconsistencies occurred because some plaintiffs marked two boxes (e.g., opt out and discontinue) or because their telephonic expression of choice differed from the one on the written form. These discrepancies, among others, effected minor changes in the totals for each category.

The following are general results from the responses we received, both written and verbal:

• Only Requested Assistance via Form: 18

• Only Requested Assistance via Toil-Free phone call or E-Mail: 35

• Written Opt In — 26

• Verbal Opt In — 18

• Written Opt Out — 20

• Verbal Opt Out — 9

• Written Discontinue — 18

• Verbal Discontinue — 29

Inconsistent Responses

• 2 said Discontinue but selected “opt out” on the response form.

• 1 said “opt out” but selected “discontinue” on the form.

The inconsistent responses are in addition to the numbers listed above. Thus, depending on which category the response is allocated, that tally will increase.

Melding the written and verbal responses (and crediting the inconsistencies to the written version) yields the following totals:

• Only requests for Special Counsel assistance: 53

• Opt Ins: 44

• Opt Outs: 31

• Discontinuances: 47

[Note: In addition to the foregoing, we received three (3) written response forms on December 21, 2010 which is after the December 17 deadline. Two of those were “opt-outs.” One was inconsistent by checking both “opt out” and “discontinue” boxes.]

Not counting the Requests for Special Counsel Assistance (but including the three (3) late written responses), some 125 Eligible Plaintiffs were assisted in expressing a choice.

Conclusion

In the time frame between the Court’s assignment on November 24 and December 17, 2010, nearly one-quarter of non-responsive Eligible Plaintiffs expressed a decision choosing how they wished to proceed with regard to the SPA. A significant number communicated with Special Counsel’s Project team and availed themselves of assistance. As suggested in the Court’s Order of November 24, a large number of Eligible Plaintiffs who did not opt in were frustrated and angry regarding the litigation process, the value of their anticipated settlement offer and for other reasons. Additionally, a significant number expressed feeling overwhelmed by the complexity of their options and the difficulty of making a decision. Contacts with Special Counsel’s lawyer team appeared to assuage some of these individuals’ feelings and helped to restore to some further communication with their attorneys.

We received excellent and unrestricted cooperation and assistance from Mr. Groner and Mr. LoPalo, members of plaintiffs’ law firm.

If additional information is needed we can refer to the logs and records for each plaintiff and provide it.

M. Hoenig

December 21, 2010

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Michael Hoenig

Direct Line: (212) 471-8530

mhoenig@herzfeld-rubin.com

December 7, 2010

Re: Special Counsel Assistance WTC Litigation

Dear Eligible Plaintiff:

I write to you as independent Special Counsel appointed by Hon. U.S. District Court Judge Alvin K. Hellerstein of the Southern District of N.Y. who presides over the World Trade Center (WTC) litigation.

As you may know, a court-approved settlement has been concluded between Eligible Plaintiffs and certain principal defendants. This Is called the “Settlement Process Agreement” (SPA). An overwhelming number of Eligible Plaintiffs have opted-in to the SPA, more than 95% overall and even higher in certain injury categories.

Some Eligible Plaintiffs, however, have not yet opted in to accept the settlement offer. As to those, Judge Hellerstein has concluded that In a large litigation such as this certain factors may interfere with individual litigants’ needs for a calm, deliberate evaluation of their best interests. He has decided that those individual Eligible Plaintiffs should have an opportunity to evaluate their rights and interests with the help of neutral Special Counsel, to arrive at an informed decision regarding their best interests. Accordingly, Judge Heller-stein has appointed me to act as Special Counsel and, together with attorneys and paralegals at this law firm, to help you arrive at an informed decision.

I stress three factors of importance: (1) we are Independent Special Counsel; (2) our sole purpose is to help those Eligible Plaintiffs who want assistance to make an informed decision; and (3) we are available to help for only a narrow, brief period, until mid-December, when our assignment expires.

Therefore, you have to let us know ASAP if you want our help. To make things easier for you in expressing your wishes to us immediately, we have done the following:

• We have provided a stamped, self-addressed envelope which you should mail back to us Immediately containing the simple form that expresses your wishes;

• We provide a toll-free telephone number for you to call and express your wish for assistance: (877) 586-1992;

• We provide, for those using computers, an e-mail address where you can express your wish for assistance: WTC@Herzfeldr-Rubin. com

• We provide a simple form that you should return immediately expressing your wishes. Just check the box applicable to your decision on whether to request Special Counsel’s assistance or another choice, sign the form, print your name under your signature, insert the date and mail It back In the enclosed envelope. If a derivative claim is also involved (for example, a claim by a spouse of the injured party), both Eligible Plaintiffs should sign.

Again, we are Independent Special Counsel; we are here to help inform you so that you can make a decision in your best interests; and time is of the essence! Please act quickly.

Sincerely,

/s/ Michael Hoenig

Michael Hoenig

INDEPENDENT SPECIAL COUNSEL ASSISTANCE

Dear Mr. Hoenig:

In response to your letter offering assistance as Special Counsel, the following is my choice:

□ I would like to have the assistance of independent Special Counsel to help me make an informed decision.

□ I do not need or want Special Counsel’s assistance but have decided to opt in to the settlement. I understand I have to complete my paperwork and send it to my counsel immediately to opt in and accept the settlement.

□ I do not need or want Special Counsel’s assistance. I consent to discontinuance of my lawsuit

□ I do not need or want Special Counsel’s assistance and have decided to opt out of the settlement

The best way to reach me is via:

□ Address:

Q Telephone:

□ E-Mail:

Very truly yours,

Dated: December_, 2010