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Worby Groner Edelman & Napoli Bern LLP, Plaintiffs’ Co-Liaison Counsel Welcomes Additional Opportunity for Plaintiffs to Review Options in Settlement


New York, New York, November 24, 2010: for immediate release: Plaintiffs’ counsel welcomed an order by Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York appointing a Special Counsel for plaintiffs who did not opt-in to review their options once more as to the $625 million dollar settlement between the City, its contractors and the plaintiffs, beyond the opt-in deadline, which expired at midnight on Tuesday, November 16.

Judge Hellerstein’s order acknowledges that in mass tort litigations such as this, it is not unusual to have small numbers of plaintiffs who do not make their wishes known, cannot be reached, or decide to withdraw, for whatever reason and he explained that the appointment of this special counsel is just one way a court can determine how to proceed with those claimants.

“We are pleased, and indeed encouraged, the Court to appoint an independent special counsel in order to assist us to ensure that our clients who have not yet opted in fully understand the settlement and their options regarding litigation, even after our repeated court-approved communications and our meetings with them,” said Marc Jay Bern, a Senior Partner with the law firm Worby, Groner, Edelman & Napoli, Bern, LLP. “Litigation is emotional. We believe it is in our clients’ best interests to go over the information once again, with the Court-appointed outside counsel to make sure each one understands the benefits and risks of their individual decisions.”

Specifically, the Judge’s order stated, “The goal of [the court appointed counsel’s] services is to assist such of the Eligible Plaintiffs as desire his services to come to one of four possible decisions, 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:

1. Opt into the SPA, executing all necessary documentation;

2. Declare a choice to continue with the lawsuit;

3. Choose not to participate further in the litigation, either by declaration or by declining to exercise any other choice, or declining to meet with Special Counsel, or

4. Instruct counsel to proceed with a dismissal-with-prejudice procedure.

Prior to the opt-in date, nearly 100 plaintiffs told their counsel they preferred to withdraw their lawsuits with prejudice, meaning they could not re-file their claims, even after Counsel made them fully aware of the risks of such a decision. The Court accepted those dismissals but is now giving plaintiffs the opportunity to change their minds or confirm that same decision to withdraw. Similarly, the order enables others who have made no choice known to their counsel to decide to opt-in or out. Whether to accept those who do decide to opt-in now, after the deadline has expired, will be up to the WTC Captive Insurance Company, which insures and defends the City and its contractors and negotiated the settlement with plaintiffs’ counsel.

“We hope that those who never did make their decisions clear to us or who decided to withdraw will still be given the opportunity to opt-in, should they decide to do so now.” Bern said.


 9/11 settlement
 Special Counsel
 Marc Jay Bern

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