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Critics Bash Proposed Lowe’s Chinese Drywall Settlement

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A proposed settlement in a Lowe’s Chinese Drywall class action lawsuit has attracted more flack. According to a report on ProPublica, critics of the settlement question both its structure and its notification provisions.

Under the proposed settlement, claimants who say they purchased defective Chinese drywall from Lowe’s would receive gift cards in amounts ranging from $50 to $2,000. Those who can prove they’ve suffered more than $2,000 in damages may also receive up to $2,500 in cash.

According to ProPublica, the agreement is structured as a reversionary settlement. That means that if it does not draw enough claimants to pay out at least $2.5 million in cash and gift cards, Lowe’s would keep the remaining $4 million that was set aside for the plaintiffs. In such a case lawyers would still be paid their $2.1 million fee, meaning they would receive almost as much as their clients. If Lowe’s received more than $6.5 million in claims, the amounts individual claimants can receive would shrink.

Brian Wolfman, a visiting professor at Georgetown University Law Center told ProPublica that such settlements are problematic because they “provide the class lawyers no incentive to put money in their clients’ pockets and make it possible for the lawyers to walk away with far too much of the goodies.”

Lowe’s customers won’t be notified of the settlement or their option to opt out via mail – usually standard in cases like this – but rather, the retailer will use a web site, ads in Parade Magazine and notices on store receipts to get the word out. If potential claimants don’t opt out by notifying the Superior Court of Muscogee County, Ga. by Nov. 9 they waive their right to sue Lowe’s individually. Even though only about 40 plaintiffs are involved in the suit, if the settlement is adopted, it would automatically apply to Lowe’s customers throughout the nation who don’t opt out.

“I cannot believe the judge would approve these notice disclosures,” Ed Mierzwinski, consumer product director for the U.S. Public Interest Research Group, a nonprofit consumer advocacy organization, told ProPublica. “When people get their Sunday paper, a lot of them throw away Parade magazine along with all of the other inserts that come in the paper.”

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