murphy oil fairness hearing 01-04-07[1]

8/14/2019 Murphy Oil Fairness Hearing 01-04-07[1]

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1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF LOUISIANA

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4 PATRICK JOSEPH TURNER, ET AL * Docket 05-CV-4206-L5 *

versus * New Orleans, Louisiana6 *

MURPHY OIL USA, INC. * January 4, 20077 * * * * * * * * * * * * * * * *

8PROCEEDINGS BEFORE THE

9 HONORABLE ELDON E. FALLONUNITED STATES DISTRICT JUDGE

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11 APPEARANCES:

12For the Plaintiffs: Law Offices of Sidney D. Torres

13 BY: SIDNEY D. TORRES, ESQ.8301 W. Judge Perez Drive

14 Suite 303Chalmette, Louisiana 70043

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16 For the Plaintiffs: Gainsburgh, Benjamin, David,

Meunier & Warshauer17 BY: GERALD MEUNIER, ESQ.Energy Centre

18 1100 Poydras St.Suite 2800

19 New Orleans, Louisiana 70163-2800

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21 For the Defendants: Frilot, Partridge, Kohnke& Clements

22 BY: KERRY J. MILLER, ESQ.ALLEN J. KROUSE, III, ESQ.

23 1100 Poydras Street, Suite 3600New Orleans, Louisiana 7016324

25 Also Present: Governor Kathleen Babineaux Blanco

JODI SIMCOX, RMR - OFFICIAL COURT REPORTERUNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA


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1Official Court Reporter: Jodi Simcox, RMR

2 500 Poydras Street, Room HB-406New Orleans, Louisiana 70130

3 (504) 589-7780

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6Proceedings recorded by mechanical stenography, transcript

7 produced by computer.

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1 PROCEEDINGS

2 (January 4, 2007)

3 THE DEPUTY CLERK: All rise.

4 THE COURT: Be seated, please. Good morning, ladies

5 and gentlemen. Call the case, please.

6 THE DEPUTY CLERK: Civil Action 05-4206. Patrick

7 Joseph Turner versus Murphy Oil USA, Inc.

8 THE COURT: Counsel, make your appearances for the

9 record.

10 MR. MILLER: Kerry Miller on behalf of Murphy Oil

11 USA, Your Honor.

12 MR. TORRES: Your Honor, Sidney Torres on behalf of

13 the plaintiffs steering committee.

14 THE COURT: Okay. This case involves claims

15 regarding property damage arising from an incident in

16 St. Bernard Parish, Louisiana that occurred sometime during the

17 week following landfall of Hurricane Katrina in 2005.

18 On September the 3rd, 2005, the defendant,

19 Murphy Oil, notified the federal government that an oil spill

20 had been detected at the Mereaux refinery in St. Bernard and at

21 least 25,000 barrels of crude oil escaped from the above-ground

22 storage tank located on the Murphy property, which apparently

23 floated and became dislodged.

24 Some of the oil traveled into the neighborhoods

25 surrounding the refinery. The plaintiffs are homeowners and



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1 business owners in St. Bernard Parish who claim to have

2 suffered property damage as a result of this tragic spill.

3 On September the 9th, 2005, the first lawsuit

4 was filed. On October the 4th, 2005, this Court granted the

5 plaintiff's motion to consolidate cases and provided that all

6 future cases would be automatically consolidated. This

7 resulted in some 27 consolidated class action lawsuits.

8 On October the 12th, 2005, the Court designated

9 plaintiffs liaison and defendants liaison counsel and

10 established a plaintiffs executive committee and steering

11 committees to manage the litigation.

12 On January the 12th, 2006, the Court held a

13 two-day hearing regarding class certification at which counsel

14 presented extensive evidence both for and against class

15 certification.

16 After reviewing the evidence, as well as the

17 expert opinions offered by the parties, this Court certified a

18 class composed of all persons and entities who sustained

19 injuries, loss and/or damage as a result of the spill at the

20 defendant's property on or about August 29th, 2005, who are

21 residents of or owned property or businesses within a certain

22 defined geographical area that the Court drew after listening

23 to the experts.

24 On February the 6th, this Court issued an order

25 approving a notice for distribution to class members pursuant



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1 to the appropriate federal rules, and held that class members

2 would be afforded a right to opt out of the class lawsuit

3 pursuant to the appropriate Rules of Federal Procedure.

4 Finally on March the 3rd, 2006, this Court

5 adopted a trial plan for the class action, bifurcating the

6 trial into two different phases. Phase 1 was to concern common

7 issues of liability and general causation; and Phase 2

8 concerned successive trials on specific causation and, of

9 course, compensatory damages.

10 The Phase 1 trial was scheduled to commence

11 October the 2nd, 2006. An effort was made to push this matter

12 as quickly as we could, recognizing that the people would be

13 devastated if this case were on a regular track.

14 It takes us, generally, five years to resolve

15 cases of this nature. We didn't have time for five years to go

16 by. There would be no parish. There would be no one there.

17 So with the help of counsel, with the help of the litigants,

18 this was able to be put on a faster track.

19 The trial was to begin October 2nd, 2006.

20 However, on September the 25th, 2006, the parties, following

21 extensive negotiations, executed a memorandum of understanding,

22 stating that they had come to an amicable resolution in the

23 case and the trial was, therefore, canceled.

24 On October the 10th, 2006, the parties filed a

25 final settlement agreement and notice program to the Court,



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1 which the Court preliminarily approved. The Court set the

2 fairness hearing for the final approval, and that fairness

3 hearing is to take place today.

4 Numerous and appropriate notices of the

5 settlement program and this fairness hearing have been mailed,

6 as well as posted. Ample and appropriate opportunity has been

7 afforded to opt out, any objectors to the settlement program to

8 make their feelings known.

9 The Court has appointed Judge Robert Klees,

10 formerly of Louisiana 4th Circuit Court of Appeals, to serve as

11 a special master to assist the Court in resolving allocation

12 disputes and/or objections. Any settlement program, of course,

13 must be approved by this Court before it can be effective. For

14 approval, it is appropriate and necessary to conduct a hearing

15 to consider the fairness of the program.

16 The purpose of the fairness hearing is to afford

17 the Court an opportunity to determine whether the proposed

18 settlement is fair, reasonable and adequate. The proponents of

19 the settlement have the burden of showing that the proposed

20 settlement is fair, reasonable and adequate.

21 At this hearing, we will hear from the

22 proponents of the settlement; next, I will hear from Judge

23 Klees; and, finally, I will hear from any outstanding

24 objectors. But, first, I would like to recognize and hear from

25 the Governor of our great state of Louisiana, and I recognize



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1 the Governor at this time.

2 GOVERNOR BLANCO: Thank you, Your Honor.

3 Judge Fallon, it's certainly an honor to be here

4 on behalf of the citizens of Louisiana who have suffered so

5 greatly. It's a privilege to address this Court in these

6 extraordinary times.

7 Our people have suffered immensely, Your Honor,

8 as you know. So I want to say that today's Murphy Oil

9 settlement marks a significant victory for the people of

10 St. Bernard Parish. It brings urgent relief to an estimated

11 6,000 households; and it does so without the extended delays of

12 a trial, as you noted, would have taken, some five years, I

13 believe, you noted and going through the appeals process.

14 So I really want to say thank you, Judge, for

15 driving this settlement, for helping to make sense out of what

16 our people often know has been a senseless experience. The

17 results make clear that your negotiations put the interests of

18 our people first.

19 Judge Fallon, please accept the State's

20 commendation for your fair handling of the Murphy Oil

21 settlement. Thank you for expediting this work. Murphy Oil, I

22 would like to thank you for your cooperation in reaching an

23 agreement that includes environmental cleanup and settlements

24 to assist impacted families. I think this is extremely

25 important for us.



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1 Three days or so after Hurricane Katrina hit,

2 St. Bernard Parish was hit again by an oil spill. Today's

3 court actions give affected homeowners the additional leg that

4 they need to recover from these two disasters that hit them in

5 such a short period of time.

6 As Governor, I led a ten-month fight for the

7 federal funding needed to run Louisiana's Road Home Program.

8 Our program compensates people for damages resulting from

9 Hurricanes Katrina and Rita. It's an attempt to get homes back

10 up.

11 I have been working with HUD to insure that

12 homeowners affected by the Murphy Oil spill recognize the full

13 benefits of both the settlement and the Road Home money. The

14 moment that you, Judge Fallon, approve the settlement, 891

15 options letters will be sent to affected homeowners in this

16 particular case.

17 At my request, HUD has approved the inclusion of

18 an official notice guaranteeing full benefits to Road Home

19 applicants in the Murphy Oil area. The notice states, and let

20 me quote: That the U.S. Department of Housing and Urban

21 Development has determined that homeowners who receive

22 settlement funds for damages caused by the oil spill may also

23 receive Road Home grants.

24 The money received by the homeowner in the

25 settlement will not reduce the Road Home grant as a duplication



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1 of benefit. This was something that we thought needed to be

2 clarified. HUD's determination does not include grants for

3 homeowners who choose to sell their property to Murphy Oil

4 under the limited buyout option of the class action settlement.

5 Homeowners who are located in the Murphy

6 designated buyout area will receive separate notice about their

7 eligibility based on Murphy's offer of a buyout. That is the

8 statement that HUD has given us, and that will be transmitted

9 to the homeowners.

10 I believe it's in line with this Court's

11 actions, that we do not count the settlement proceeds against

12 families who are seeking Road Home awards to rebuild in the

13 same area.

14 The State will work very closely with homeowners

15 to insure that they receive the greatest amount of funding

16 possible to get back into their homes. I know when it comes to

17 recovery, that every dollar counts for the families that have

18 been so severely impacted.

19 So in closing, I would like to thank all parties

20 for the progress that you have accomplished. What has happened

21 with people who will consider selling their homes is it gives

22 them another option. They can still sell to the program, or

23 they can sell to Murphy Oil, or they can sell out on the free

24 market. So it becomes one more option and they can choose the

25 option that benefits them the most.



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1 But I want to thank you, once again, Judge

2 Fallon, and all of the teams of people, for this

3 extraordinarily rapid decision-making process. It's going to

4 help our people. I just want to thank you because I wanted to

5 say to the people of St. Bernard Parish: They and many members

6 of the parishes in the southeast region were severely impacted

7 and our challenges are great.

8 I've been working day and night for a year and a

9 half now trying to help people make sense out of their lives.

10 I think this is going to go a long way toward helping many,

11 many people, and it's going to help move St. Bernard further.

12 Thank you so much.

13 THE COURT: Thank you, Governor. We appreciate your

14 being here; and, of course, we appreciate your well kind

15 comments.

16 I've practiced law longer than I've been a judge

17 and I know that it is the lawyers who guide the settlement and

18 who bring it about, and I've been fortunate to have outstanding

19 lawyers working on this case on both sides. It's a tribute to

20 them and I recognize that and I thank them for all of their

21 help, but we're certainly obliged that you would take the time

22 out of your busy schedule and visit with us today.

23 Thank you very much.

24 GOVERNOR BLANCO: I appreciate it.

25 THE COURT: All rise while the Governor leaves.



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1 (WHEREUPON, the Governor exited the courtroom.)

2 THE COURT: I'll hear now from the proponents of the

3 settlement because they have the burden so they go first.

4 MR. TORRES: Your Honor, Sidney Torres on behalf of

5 the plaintiffs steering committee, the plaintiffs class.

6 Mr. Miller and I will share in a Powerpoint overview and then

7 we will present and introduce our evidence in support of the

8 fairness of the proposed settlement.

9 I would just like to take this moment, Your

10 Honor, to reflect back to the first meeting we had in Houston,

11 Texas, when this court was displaced as a result of the

12 hurricane, and the executive committee and myself visited Your

13 Honor and so did the defendants.

14 And the tone was set at that time for what has

15 been discussed this morning and, that is, the timely resolution

16 of this case. I'd just like to thank the Court for driving

17 this case.

18 At that meeting Your Honor made it clear that

19 whoever was going participate in this case had to be prepared

20 to commit their time and resources to the case, and both sides

21 made that commitment. The Court appointed a PSC, and all of

22 the attorneys who worked on this case made that commitment. It

23 was the constant reminder of this Court that this community,

24 basically, needed us to help in the recovery in St. Bernard

25 Parish.



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1 I don't think there was a meeting that I

2 attended with this Court where Your Honor didn't look to both

3 sides, in particular, Danny Dysart, who is on the defense side

4 and actually lives in the area that was affected by the spill,

5 and to myself, and ask us how things were going in St. Bernard.

6 Your Honor visited the site with us. We drove through, and you

7 saw firsthand and touched it.

8 I would like, Your Honor, before we make our

9 overview presentation just to ask Your Honor's permission for

10 the plaintiffs steering committee and of all the attorneys who

11 participated to stand at this time. Because they are here

12 today in support of the settlement.

13 And what's important is this case was settled on

14 the eve of trial. I concur that, generally, a case like this

15 could take up to five years. There was condensed litigation

16 within a period of one year, which resulted, as Your Honor

17 knows, into intense litigation and participation by both sides,

18 which literally committed us to the case for the whole year.

19 So we're here today in recommending this

20 settlement. We don't take that lightly. We understand what it

21 means to settle the case. We're here today to let you know

22 that we were well informed, both sides; and that we have

23 prominent attorneys, not only in this area, but nationally.

24 At this time, Your Honor, I would like the

25 members of the PSC, if they would, to please stand.



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1 (WHEREUPON, the members of the PSC stood in recognition.)

2 MR. TORRES: Thank you.

3 THE COURT: I've said it before: I do appreciate all

4 of the work that each of you have done. I'm aware of it. I've

5 walked in your shoes many years and I know what it takes. I

6 know sometimes how thankless your job is, but you need to know

7 that this Court appreciates it and thanks you for your work and

8 recognizes that it was very helpful to the resolution of this

9 litigation, and you're to be applauded for that.

10 MR. TORRES: At this time, Your Honor, Mr. Kerry

11 Miller will be here and, likewise, there was a team of

12 attorneys on his side. I was thinking yesterday as I looked

13 out the window in the Energy Center that I had observed every

14 holiday and every major event.

15 As a matter of fact, when the Saints first came

16 back to New Orleans, we were in there working on the case. We

17 were there yesterday with the Sugar Bowl and I think every

18 event in between, including Christmas and New Year's.

19 Kerry?

20 MR. MILLER: Two Christmases and New Year's,

21 actually.

22 Your Honor, thank you. Kerry Miller on behalf

23 of Murphy. I want to share the comments Your Honor has made

24 earlier this morning, as well as the comments made by the

25 Governor and Mr. Torres about the collective efforts of a whole



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1 bunch of people, Your Honor, in putting this thing together and

2 getting the relief out to the communities really as fast as it

3 possibly could have been done. We all think that's a great

4 outcome, Your Honor.

5 Some folks or some institutions not mentioned

6 who went through Herculean efforts to go ahead and put this

7 thing together, I'd like to mention right now.

8 The entity that has been administering claims

9 voluntarily for Murphy and is now the court-appointed

10 disbursing agent first set up claims offices in October of

11 2005. It was sort of like doing it in the Flintstone's era.

12 There were no phones. There were no computers. And they did a

13 great effort of putting together a claims system that worked.

14 They are right now located in the heart of the

15 class area at 2626 Charles Drive in a space that's most

16 convenient for the class members who were there who were

17 cleaning their properties and rebuilding their lives to be able

18 to go in and file their claims. So they deserve a lot of

19 credit for helping, assisting, and getting this money and

20 benefits into the community.

21 As well, Your Honor, as the entities and groups

22 who have worked on the remediation. A lot of remediation work

23 has occurred. It is hoped that it will be completed in short

24 order, Your Honor, that the whole area will be remediated and

25 will be tested and confirmed clean by the Department of



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1 Environmental Quality and the EPA. And they deserve credit,

2 Your Honor.

3 EPA and DEQ have been on the scene literally

4 since September 5th, 2005, and they're there every day. And

5 they're working on behalf of the community and the citizens and

6 making sure that the area is properly cleaned up. So they

7 deserve some credit, Your Honor.

8 They're out there living in trailers, very

9 difficult circumstances, as well as the remediation people at

10 Murphy and Murphy's contractors. They've been living in

11 trailers in St. Bernard since September of 2005 to make sure

12 that the job one, as we've always called it, get the area

13 cleaned up, is done. And they need to be, I think, recognized

14 at this time, Your Honor, because we've made great progress on

15 that.

16 And along with Sidney's team, our team has

17 worked very hard and very diligently, put personal issues and

18 other things aside, to work on what we all consider job one.

19 This was a job to us, too. But we all took a

20 very personal stance in this and we wanted to do good and do

21 right by the community and the people of St. Bernard, and I

22 think we've done that, Your Honor. I really do. I think this

23 is something we all ought to be proud of. And I know certainly

24 on Murphy's side we are. I know Sidney and I have had a number

25 of discussions and they are too. So this is a good thing.



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1 We're happy to be here today.

2 At this point we'll go ahead and start giving

3 our presentation on the fairness hearing, and Mr. Torres and I

4 will do a joint presentation.

5 THE COURT: Okay.

6 MR. TORRES: Your Honor, in this case, the class

7 action settlement requirements have been met. Rule 23

8 requirements of numerosity, commonality, typicality, adequacy

9 of representation, predominance and superiority were shown at

10 the certification hearing. This was addressed, as Your Honor

11 has stated, in January of 2006.

12 We will be requesting that the record from the

13 certification hearing be adopted and incorporated into the

14 fairness hearing record. The settlement negotiations in this

15 case are non-collusive. They were conducted at arm's length

16 with mediation and court involvement.

17 As this Court knows, settlements are favored.

18 The Rule 23(e)(3) factors in the settlement have been met.

19 Again, there was no collusion; the complexity and expense and

20 duration of this litigation have to be taken into

21 consideration; the stage of the proceedings, amounts of

22 discovery that have been completed; the probabilty of

23 plaintiffs' success on the merits, and the range of possible

24 recovery; and the opinion of class representatives and class

25 counsel and class members has to be considered.



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1 MR. MILLER: Your Honor, Murphy certainly joins in

2 Mr. Torres' observations of those points. On one issue, the

3 stage of the proceedings has been talked about a good deal this

4 morning, and this is the absolute perfect time to do it, Your

5 Honor, scheduling the way that we were able to do things, it is

6 not too early, nor is it too late.

7 Had something been done early, then maybe all

8 the work that we've done to, literally, look under every rock

9 and make sure that the program we have in place is the right

10 program, may have been skipped.

11 You know my senior partner, Mr. George Frilot.

12 I know you've known him for a long time. He turns over every

13 stone when he gets involved in a case, and that has been done,

14 Your Honor.

15 We have made sure that the remediation program

16 is right. We have made sure that the benefits that we are

17 paying is right, and that takes some time. But there's been a

18 lot of consultation with experts from all over the country.

19 We've looked at this, reviewed it, analyzed it and endorse this

20 program, Your Honor.

21 The next point we'd like to talk about is the

22 notice program. And we really did strive for excellence in

23 everything that we did and I think we accomplished that. I

24 notice, Mr. Todd Hilsee, who is in court this morning, and if

25 Your Honor has any questions, he is certainly available to



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1 testify about notice. But he was our notice adviser and he is

2 one of the country's foremost notice advisers, and we put

3 together a first-class notice program.

4 Your Honor, one of the benefits we had in this

5 case is we researched and analyzed, had a lot of information,

6 both on the addresses -- Governor Blanko talked about

7 approximately 6,000 residents -- I think total properties, when

8 you add businesses and schools and churches into that is about

9 6,500. We went and we got information, address information at

10 the time of the hurricane on all of those properties.

11 We have that notices were sent to all them, all

12 that information separately. A lot of contact with the people

13 in the class on Murphy's side, on the PSC's side, FEMA had

14 information. We resourced all those databases. And what we

15 did, Your Honor, is we sent a notice -- three notices,

16 actually, to every single address we had on file for people who

17 lived in that spill area.

18 We sent it to all the Chalmette addresses, and

19 we sent it all the new address information, people who moved to

20 Ponchatoula and Covington and Bayside and Picayune and places

21 like that. We researched all that. So all together, more than

22 14,000 notice packets received. If anything, would have heard

23 from people is: Why did I get three? Because they would get

24 one at the Chalmette address, which would be forwarded. They'd

25 get one at the new address and that kind of thing. So we did



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1 cover the waterfront.

2 The types of information they received, Your

3 Honor, again, was, with the assistance of Mr. Hilsee to make

4 sure that it was understandable, Rule 23 now talks about plain

5 English notice: It's direct; it's not legalese; it's not

6 complex; it's not burdensome; make sure that people understood

7 what the settlement was all about.

8 And so we think we had a real effective

9 communication package. So what we would include was a summary

10 notice, certainly a detailed notice, where all the rights were

11 laid out. As Your Honor knows, people were given the

12 opportunity to rejoin the class, and about 70 percent of people

13 who opted out did rejoin. They liked what they saw.

14 Information we provided on the allocation plan

15 once Your Honor approved the allocation plan, as required by

16 Rule 23, common benefit fee application filed by the PSC was

17 provided to the class, and information on the remediation plan

18 was also provided to the class, Your Honor.

19 Not only did we send out 14,000 direct mail

20 payouts -- direct mail submissions, but we also supplemented

21 that, Your Honor, with newspaper publication. Again, this was

22 a joint effort. Mr. Hilsee assisted us in deciding what

23 newspapers, when and where, how to publish it, what the add

24 needed to look like.

25 And, again, this was not a USA Today,



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1 Wall Street Journal microscopic type, legalese type notice. It

2 was large. It was direct. It was written in plain English,

3 and it directed people if they wanted more information to go to

4 Web sites. But at any rate, what we thought was the best thing

5 to do was to concentrate notice, get it out, you know, in

6 November so people knew about their rights all at one time.

7 And what we recognized, Your Honor, is that the

8 vast majority of people in St. Bernard were either back in

9 St. Bernard or were living in south Louisiana, south

10 Mississippi so that's where we focused our notice campaign.

11 And here are the papers that we targeted: The

12 Times Picayune; The Morning Advocate in Baton Rouge; the two

13 local papers in St. Bernard, which have loyal readership,

14 St. Bernard News and St. Bernard Voice, USA Today, you know,

15 because you do have a small percentage of people who were

16 disbursed nationally; the paper in Hammond, Lafayette, Biloxi,

17 Gulfport, Hattiesburg, Jackson and Pascagoula where we think

18 most of the people are residing now who are displaced.

19 An additional supplementation of notice, and

20 it's probably a good way to do it now, is on the Internet.

21 Many, many, many, many of these people stayed together on the

22 Murphy situation, FEMA, insurance, other issues by having chat

23 rooms on the Internet. So we had a real effective, I think,

24 Internet notice campaign. The Court's Web site, as Your Honor

25 knows, many people have thanked Your Honor in objections and



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1 that the dissemination of the notice was appropriate.

2 So I was intricately involved and intimately

3 involved in this, and I found it appropriate during the time

4 and I find it appropriate now.

5 MR. TORRES: Your Honor, as to the class settlement

6 benefits, one of the main things, and certainly an overriding

7 concern in this litigation, was class area remediation. In

8 this case, the soil, air, structures and ground water were all

9 tested extensively.

10 The plaintiffs, Murphy, and EPA, LDEQ conducted

11 more than 18,000 tests on more than 5,500 separate properties.

12 The LDEQ dismissed it's ground water contamination

13 intervention. The remediation plan was approved by the

14 governmental regulatory agencies: EPA, LDEQ, ATSDR and LDHH.

15 The remediation in this case is to be supervised

16 by the government regulators with the Court's oversight. All

17 remediated properties will be tested, EPA, LDEQ, before any

18 re-occupancy. Important to note, Your Honor, is that there's

19 no cap on the cost of remediation.

20 The properties in this area will be remediated.

21 Murphy, it's insurers, have guaranteed that they will be

22 cleaned in accordance with the regulators and this Court's

23 supervision and they will bear the costs of remediating the

24 properties so that our people can return to a safe and healthy

25 community.



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1 MR. MILLER: If you don't mind, just one comment I'd

2 like to make on that. On the issue of remediation, Your Honor,

3 there are some residences that have been reoccupied since going

4 through this plan, the testing, the cleaning, the sampling by

5 EPA and LDEQ. The plan that we have in place has worked

6 successfully in 100 percent of the cases where people have

7 re-occupied.

8 I want Your Honor to understand and to stress

9 that there will be no re-occupancy until it's tested, cleaned,

10 tested again and approved by the EPA and LDEQ for re-occupancy.

11 That's occurred. It's working well, and we plan on really

12 accelerating that process this spring, Your Honor.

13 MR. TORRES: Yes, Your Honor. I will join in that by

14 noting that in instances where we had concerns of complaints,

15 which Your Honor is familiar with, Murphy did, in fact, go out

16 and remediate it and insure that the property was safe for the

17 people to return.

18 The compensation program is fair. There are

19 four allocation zones. The zones were based upon environmental

20 sampling, analysis, regulatory oversight conducted by the EPA

21 and the LDEQ. The environmental sampling and analysis

22 conducted by CTEH on behalf of Murphy and Marco Kaltofen on

23 behalf of the plaintiffs class, reviewed the property records

24 obtained from the assessor's office, the property records

25 obtained through several independent resources and databases



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1 and property records obtained during the Murphy voluntary

2 settlement program.

3 There was extensive evaluation done by the

4 plaintiffs steering committee and Murphy in counting and

5 evaluating properties in the class area, including the manual

6 counting of the properties on several occasions.

7 Quantitive analysis performed on behalf of the

8 PSC was done by Bourgeois Bennett, LC, a local accounting firm.

9 Quantitive analysis on real estate prices and sales were

10 performed on behalf of Murphy by Dr. Wade Ragas, a local

11 economist and expert in the St. Bernard real estate market from

12 UNO, and by Dr. John Kilpatrick, an expert in real estate

13 property damage claims who was retained on behalf of the

14 plaintiffs class.

15 Quantitive analysis were also compiled by Global

16 Risk Solutions, the now court-appointed disbursing agent in

17 this case. And as Governor Blanko pointed out, which is quite

18 an achievement, there will be no deduction on a compensatory

19 part of the settlement from LRA.

20 And as Your Honor well knows, we've been talking

21 about that issue for some time. Because the LRA, there was an

22 issue in there about was it possibly duplication of benefits.

23 There were many discussions with the LRA, with

24 the Governor's Office, with the congressional offices, and

25 we're very pleased that this all sort of came together at the



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1 same time, that we were to get a declaration at this time from

2 the Governor that it would not be considered a duplication of

3 benefits on the compensatory part.

4 And as Governor Blanko pointed out, in the

5 buyout area, it would merely give an opportunity for those

6 selling to have an additional opportunity and to choose

7 whichever one provides them with the most money.

8 MR. MILLER: Your Honor, what we have next, just to

9 supplement Sidney's comments, is this is the zone map, if you

10 will, Your Honor, which outlines the four zones in the class

11 area.

12 Zone 1, which is here in the pink, is the buyout

13 zone. A couple things about the buyout zone that are

14 important. First of all, the buyout zone, Your Honor, people

15 are able to sell their properties to Murphy for $40 a square

16 foot of living area.

17 Now, that number, Your Honor, $40 a square foot

18 of living area, is the absolute top end of the range of real

19 estate sales occurring in St. Bernard overall. It's not oil

20 impacted properties. We have examined, Dr. Ragas has examined,

21 every single real estate sale in St. Bernard since the

22 hurricane, as well as every single real estate sale in

23 similarly impacted area of Orleans Parish, New Orleans East,

24 Gentilly and Lakeview.

25 What he's determined is that there has been a



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1 deduction from storm surge in excess of 50 percent. Prior to

2 the hurricane, the average properties were selling for $80 a

3 square foot in this area, and so $40 a square foot is on the

4 upper end of the range. In actuality, Dr. Ragas' study of the

5 St. Bernard real estate market indicates an average sales price

6 in the area of about $25 a square foot on the average. So

7 people are compensated fairly.

8 Now, it's not for everyone, the buyout. If you

9 don't want to sell to Murphy, you don't have to. But you still

10 are allowed to participate in the compensation part of the

11 settlement. Murphy is offering $19.25 a square foot, plus

12 $3,375 per occupant at the time of the hurricane for people in

13 this area. So you could get either both the buyout and the

14 compensation, or just the compensation if you so choose.

15 Similar compensation is being paid to businesses in Zone 1.

16 Zone 2, Your Honor, which is in the blue, offers

17 compensation at $14.39 a square foot to residences, plus $3,375

18 per occupant. Again, similar compensation is being paid to

19 businesses. There was a lot of cleanup activity already

20 accomplished in Zone 1 and Zone 2, and certainly more to come

21 this spring. We hope to wrap it up.

22 Zone 3, Your Honor, is the next zone.

23 Homeowners in that area are offered $10 a square foot, plus

24 $2,500 per occupant. Again, we think that's very fair.

25 Businesses are being treated similarly in Zone 3. And Zone 4,



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1 But, Your Honor, this is a focused, closeup map

2 of the buyout area: St. Bernard Highway, 20 Arpent Canal on

3 this side, Judge Perez in the middle. And a green dot over a

4 property indicates, Your Honor, interest by the homeowner in

5 the buyout program.

6 So what we're hoping to do, Your Honor, pursuant

7 to a previous motion that's been submitted, is if Your Honor

8 does promptly go ahead and approve the fairness, is to begin

9 title abstracting work so that when the final settlement date

10 is reached per the settlement agreement, which means the appeal

11 period's elapsed, Murphy can start doing closings with people

12 and start moving forward.

13 So the interest has just been overwhelming and

14 this is just based upon the people we've met with so far.

15 There were meetings scheduled and we anticipate a very high

16 level of participation in the buyout area, which is good.

17 MR. TORRES: The settlement, Your Honor, has been

18 embraced by the community. As, Your Honor is aware, subsequent

19 to the filing of the first lawsuit, Murphy began to settle

20 cases in what's called the Murphy settlement area.

21 That settlement program was successful in the

22 sense that approximately 70 percent of the properties in that

23 area settled with Murphy, including some of the people who were

24 included in the original lawsuit and were class

25 representatives.



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1 address as many of the questions as we could.

2 There were many issues that arose during that

3 time related to, when can I have my house gutted, torn down, I

4 need permission to get it torn down. Those are all additional

5 things that were discussed and handled; and, as a result of

6 that, people had the opportunity to have a clear understanding

7 of what was happening.

8 As of January 2nd, we show that there were 4,200

9 proof of claim forms that have been received by the claims

10 office. And as we appear here in this courtroom today, the

11 claims office is functioning. As in every instance in this

12 case, there's always something going on in multiple venues. So

13 as we speak, people, I'm sure, are still filling out the proof

14 of claim forms and they have until January 31st to complete the

15 proof of claims process.

16 Your Honor, at this time we would like to go

17 ahead and present and introduce our evidence in support of the

18 fairness, and I would ask Mr. Meunier to assist in this

19 process.

20 MR. MEUNIER: May it please the Court, Jerry Meunier

21 for the PSC. Your Honor, we have previously furnished you with

22 a bench book and that bench book includes an index of the

23 record and the exhibits which we offer into evidence today in

24 support of our request for approval of the class settlement.

25 Tab 2 in your binder, Judge, would be the



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1 affidavits of various experts. These are both plaintiff and

2 defendant experts who have all come together within their

3 various fields of expertise to voice support for the settlement

4 and, specifically, for that aspect of the settlement which

5 falls within their expertise.

6 Those experts are Todd Hilsee,

7 Dr. John Kilpatrick, Dr. Marco Kaltofen, Dr. Paul Templet,

8 John Perry, Mike Perrullo, Jim Wallwork, Dr. Glenn Millner, and

9 Dr. Wade Ragas. Those affidavits are now offered into evidence

10 jointly by the parties as Joint Exhibit 1A through I, each

11 letter corresponding to the experts I've mentioned.

12 THE COURT: Is that 1 or 2?

13 MR. MEUNIER: I'm sorry, 2, Your Honor. They would

14 be 2A through I, yes, sir.

15 THE COURT: I'll admit them into evidence.

16 MR. MEUNIER: Tab 3 in the binder contains the

17 affidavits of class representatives. There are five

18 representatives, Robin Clark, Fernand Marsolan, Phyllis Michon,

19 Cherie Perez, and James Shoemaker. These are all designated as

20 class representatives in this Court's decision to certify a

21 class.

22 Each has submitted an affidavit expressing their

23 familiarity with the settlement, with the litigation, with

24 their responsibilities as class representatives. And those

25 affidavits in support of the settlement are offered as Joint



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1 Exhibit 3A through E.

2 THE COURT: Let those be admitted.

3 MR. MEUNIER: Tab 4 in the binder, Judge, would be

4 the affidavits of class counsel.

5 And we have done our best to furnish in the

6 record today all of the affidavits from all class counsel who,

7 because of scheduling, et cetera, were able to do so. And you

8 will see each class counsel identified in the index and by

9 affidavit.

10 They are Madro Bandaries, Daniel Becnel,

11 Robert Becnel, William Bradley, Walter Dumas, Val Exnicious,

12 Michael Hingle, Hugh Lambert, Gerald Meunier, Ronnie Penton,

13 Carroll Rogers, Michael Stag and Sidney Torres.

14 And then there is a Joint Exhibit, Your Honor,

15 from Robert Becnel and Jerald Andry, which specifies

16 information for the Court on the claims process, which is, as

17 Mr. Torres said, an ongoing process. And that affidavit

18 furnishes additional information on the claims process.

19 The other affidavits all express the views of

20 class counsel, that they have examined the settlement, they are

21 familiar with the litigation and their responsibilities as

22 court-appointed class counsel, and they find and support the

23 settlement as being fair and adequate and in the best interest

24 of class members.

25 And we would offer as Joint Exhibit 4A through N



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1 the affidavits referred to.


3 MR. MEUNIER: What that then follows in the bench

4 book, Judge, at Tab 5 is a stipulation of facts. This

5 stipulation --

6 THE COURT: O, P, Q and R of 4.

7 MR. TORRES: Jerry, those were the additional ones

8 received this morning.

9 MR. MEUNIER: Oh, we have some received this morning,

10 Your Honor. I apologize. We would offer Exhibit 4O, P, Q, and

11 R.


13 MR. MEUNIER: Tab 5, Judge, is the stipulation of

14 facts that has been confected by counsel for the parties.

15 What we've attempted to do with this stipulation

16 is direct it to facts pertinent to be put in the record by

17 agreement -- put into evidence by agreement that are relevant

18 to and supportive of the request to approve the settlement as

19 fair.

20 I would mention that some of the facts also

21 pertain and are relevant to the pending motion of the PSC for

22 the assessment and award of class counsel fees and expenses.

23 THE COURT: Let that be admitted. That's Tab 5.

24 MR. MEUNIER: Judge, Tab 6 are findings of fact,

25 conclusions of law, and Tab 7, proposed judgments. We don't



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1 purport to give exhibit numbers to those. We would simply

2 offer them into the record for the Court to consider in making

3 its required findings of facts and conclusions of law in

4 support of the approval of the settlement.

5 And the proposed judgments, there are three of

6 those, Your Honor. They're self-explanatory. One is a

7 judgment just approving the class-wide settlement. The other

8 is a proposed judgment that would do that, as well as provide

9 for the payment of common benefit fees and expenses. And the

10 third judgment would pertain to individual objections.

11 THE COURT: We'll make that a part of the record.

12 That's 6, 7, 8 and 9. 8 is a docket sheet of plaintiff

13 counsel, and 9 is a docket sheet of all case activity. That

14 will be a part of the record.

15 MR. MEUNIER: Thank you, Your Honor. The final tabs

16 are 8 and 9, those are the docket sheet, and listing all

17 plaintiff counsel of record would be Tab 8, and the docket

18 sheet listing all case activity would be Tab 9.

19 Your Honor, we felt that those documents were

20 important to put in the record to show the scope of the

21 activity and the involvement of plaintiffs counsel. And so we

22 would like to attach -- or rather assign joint exhibit numbers

23 to both of those docket sheets; and consistent with the index

24 in the bench book, those will be Joint Exhibit 8, the docket

25 sheet listing plaintiffs counsel of record; and Joint Exhibit



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1 9, the docket sheet listing all case activity.

2 THE COURT: That will be a part of the record. I

3 won't introduce it into evidence, but it will be a part of the

4 record.

5 MR. MEUNIER: Your Honor, going back to, if the Court

6 will allow me, to class counsel affidavits. I did mention the

7 affidavits of Richard Arsenault and Joseph Bruno, which are

8 included.

9 We also would ask the Court to allow us to

10 supplement the record by, say, of close business tomorrow with

11 some additional class counsel affidavits that are in the

12 process of being --

13 THE COURT: That's fine. I'll do that.

14 MR. MEUNIER: And, Judge, we'll be putting stickers

15 on these various originals and giving them to your staff.

16 Thank you, Judge.

17 THE COURT: Anything more from the participants?

18 MR. MILLER: That's it, Judge.

19 THE COURT: We'll take a ten-minute break at this

20 time and then come back and then I'll hear from Judge Klees and

21 then I'll hear from any objectors.


23 (WHEREUPON, the Court took a recess.)


25 THE COURT: Be seated, please. Now I'll hear from



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1 Judge Klees.

2 MR. MEUNIER: Your Honor, excuse me. Jerry Meunier.

3 Before Judge Klees addresses the Court, I

4 neglected to mention that one of the matters that we'd like to

5 place in the record of this hearing is the record of the class

6 certification hearing before Your Honor January 12th and

7 13th of 2006, and we respectfully incorporate and adopt the

8 record of the transcript of that hearing.

9 THE COURT: That will be made a part of the record.

10 Let me hear from Judge Klees. As I mentioned, I appointed

11 Judge Klees as a special master in this matter to assist the

12 court in discussing the objections, as well as other areas.

13 I appreciate all of the work that he's been

14 doing in this matter. I know you worked very hard on it and

15 you have the Court's appreciation. I'll hear from Judge Klees

16 at this time.

17 JUDGE KLEES: Your Honor, first, I would like to

18 thank you very much for allowing me to participate in this

19 process. As a resident of St. Bernard Parish, I have been

20 affected; and it has always bothered me that I had very little

21 input into the process and you included me and I truly

22 appreciate what you did.

23 We were able to meet with 21 persons whom we had

24 objections from. We met on January 2nd and 3rd of this year.

25 I was able to have Mr. Sal Gutierrez, Mickey Landry and



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1 Jay Andry for the PSC present, as well as Mr. Sidney Torres,

2 Mr. A.J. Krouse and Daniel Dysart from Murphy Oil Corporation.

3 So I found it was a very good thing for the

4 people to have both sides of the fence there, as well as the

5 Murphy Oil representative, and we were able to work out

6 solutions for a lot of people.

7 We talked to 21 people. The first was Arthur

8 and Sondra Arseneaux, and their objection has been withdrawn.

9 We talked to Terrence Meyer, and his objection was withdrawn.

10 Bernie and Linda Deschamp, their objection has been withdrawn.

11 Mr. Gregory Faia, who is present in court today,

12 presented an objection because he showed me that he was the

13 registered land owner of property in the area. Unfortunately,

14 the previous land owner had made a settlement with Murphy and

15 there is some confusion there.

16 My recommendation to you is that he be allowed

17 to remain as a member of the class and present his claim. But

18 I'm sure you're going to hear from the other representatives

19 and they'll make their spiel to you in a moment.

20 Mr. Wayne Duchmann was also present and his

21 objection could not be resolved. He was invited to appear here

22 today and make his presentation to the Court. Mr. James

23 Philpot also was present and his objection has been withdrawn.

24 Peter and Betsy Harrison, their objection has

25 been withdrawn. Kevin Karcher, objection has been withdrawn.



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1 Sherri and William Follette, their objection was withdrawn.

2 I just want to say that it was a pleasure to

3 deal with all of the persons who were there. They all had

4 their story to tell. I think it was very important that they

5 were able to tell their stories and vent and let the persons

6 who they thought were responsible to know how they felt.

7 But, as you can see, at the end of the day, all

8 objections were withdrawn except for the two people that I

9 mentioned. That's my report. I have it here. I'll be happy

10 to submit it to the Court to include in the record.

11 THE COURT: Submit it in writing. And with regard to

12 the people whose objection has been withdrawn, I will allow

13 that and approve their withdrawal in accordance with the

14 federal rules. With regard to the opt-outs, they need not have

15 my approval, they can officially opt out, and they have done so

16 and will not be a part of the settlement.

17 With regard to the two individuals who have

18 not -- who are still objecting, I will hear from them at this

19 time. Is it Mr. Faia, or how does he pronounce his name?

20 JUDGE KLEES: Faia, F-A-I-A.

21 THE COURT: Mr. Faia, would you come forward, sir,

22 and explain to the Court your position?

23 MR. FAIA: Good morning, Judge.

24 THE DEPUTY CLERK: Please state your name for the

25 record.



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1 MR. FAIA: My name is Gregory, initial G, Faia,

2 F-A-I-A.

3 And, Judge, I apologize. As of yesterday

4 afternoon, I was not of the belief that I had to be here today

5 because we had a meeting with the special master and I believed

6 that we had an agreement.

7 And at the time when I left, I was unaware that

8 I was going to have appear today. So if --

9 THE COURT: Well, Mr. Faia, as I understand from the

10 special master's report, you owned a piece of property and it

11 was placed in someone else's name and you had a counter-letter,

12 I assume or not?

13 MR. FAIA: Well, no, sir. It wasn't a

14 counter-letter. What actually happened was there was an

15 individual -- and this is all spelled out in the complaint that

16 I submitted. There was an individual who worked for me who --

17 a husband and wife, and they had some difficult financial

18 problems because of medical issues.

19 And their home on Volpe Drive was in foreclosure

20 for being in arrears for two years. She approached me about it

21 was going to sale in approximately two days. This was in 2003.

22 I put the money up in order to get the house out of foreclosure

23 for her so that she could continue to live there.

24 At that time we did an act of sale and

25 assumption to one of my companies, CGF Holding.



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1 to file my claim; and when I did, they accepted the claim.

2 They said there was -- you know, at that point we were informed

3 that other people -- that she had actually made a claim and was

4 paid. Pardon me. She had not made a claim. She was settled

5 with prior to the lawsuit itself is my understanding of it.

6 At that point they said, we understand that that

7 took place and that's an awful shame; but, of course, we're

8 accepting your claim, there's no problem, everything's fine. I

9 left. Some time passed. I'm not exactly sure of the exact

10 dates right now.

11 And then I got a call saying, well, can you give

12 us an affidavit stating of what the facts were and how it went

13 down. I said, absolutely. So I did that affidavit and it's

14 attached to my objection as well. And it wasn't until -- I

15 didn't hear back from them. It wasn't until I received the

16 notice of denial, which came on the exact date of whatever the

17 date to opt out of the class was.

18 Then -- forgive me if I go off on the dates, but

19 I filed the objection because, in my review of it and in my

20 looking at the definition of what the -- in other words, under

21 the legal notice of the class settlement, it clarifies that all

22 persons and/or entities who have sustained injuries, loss or

23 damages as a result of the 2000 spill -- and I'll jump ahead --

24 and who which on October 29th were residents or owned

25 properties in the following area.



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1 Well, I always felt I was in that class. I

2 didn't know at any point in time that there was an issue that's

3 different. I understand now that they've made some different

4 argument regarding public record. But there's no doubt that I

5 was the owner of that property and I'm the one who sustained

6 the injury.

7 And for that reason, and in addition, in the way

8 that they've handled my claim, I felt that on numerous

9 occasions I was told one thing and then something else took

10 place. And I'm sure it's a theme, not only for me, but for

11 other people who have been involved in this.

12 So that was the reason for my objection, and I

13 think it's set forth in my --

14 THE COURT: Right, it is. Anything from Murphy?

15 MR. KROUSE: Good morning. Yes, Your Honor. A.J.

16 Krouse on behalf of Murphy Oil USA, Inc. And with all due

17 respect to the special master and Mr. Faia, we opposed the

18 special master's recommendation on this issue.

19 I don't believe the facts are in dispute here.

20 In April of 2003 this transaction took place and the property

21 at issue was 2428 Volpe Drive. Murphy paid to a Georgia

22 Valenzo on December 5, 2005 and settled the claim on this

23 property. As Mr. Faia admits, the property transaction was not

24 recorded until after that on January 13th, 2006.

25 And it's black letter law in Louisiana that we



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1 I'd be interested in your views on it. I will

2 mark, for the record, an objection and I won't rule on the

3 objection. I will give you an opportunity to explore and focus

4 me on that issue, give me your views on whether or not it

5 applies, and if so whether or not they have proved access to

6 it.

7 And you do it within seven days and I'll give

8 the defendant three days to respond so that I'll have the whole

9 thing before me within ten days.

10 MR. KROUSE: Thank you, Your Honor.

11 THE COURT: Thank you very much for being here. I

12 appreciate it.

13 MR. FAIA: Thank you, Judge.

14 THE COURT: Okay. We have another objector. Anybody

15 other than Mr. Duchmann? Any other objectors other than

16 Mr. Duchmann? Okay. Mr. Duchmann, come forward, please.

17 Mr. Duchmann, I ask that you tell me

18 specifically your objection, introduce anything into the

19 record, but I'm not going to be watching any movies in open

20 court. I'll do so in chambers, but I'm not going to be

21 watching any movies.

22 MR. DUCHMANN: I appreciate that, Your Honor.

23 THE COURT: I'll Make it a part of the record. I'll

24 accept it as part of the record.

25 Also, first, tell us your name and your standing



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1 in being here. What do you represent?

2 MR. DUCHMANN: I'm a property owner on Jacob Drive.

3 THE COURT: Your name is what, sir?

4 MR. DUCHMANN: Wayne Duchmann.

5 THE COURT: Okay. And you say you're a property

6 owner. Does the record show that you're a property owner?

7 MR. DUCHMANN: My mom just passed away two months ago

8 and we didn't open up succession. But prior to that, we opened

9 up succession from my dad and get the opportunity that my mom

10 could opt out and take this money for health care that was

11 needed at that time.

12 Since then my mom's passed on since the last

13 time I appeared before you, Your Honor.

14 THE COURT: When your dad's succession was opened,

15 were you put in possession of his share of the property?

16 MR. DUCHMANN: I waived my share to my mom for the

17 simple right she needed this money to continue her health care.

18 THE COURT: And your mother died recently?

19 MR. DUCHMANN: Sir, she died two months ago.

20 THE COURT: What's the address?

21 MR. DUCHMANN: It's 2224 Jacob Drive. It is inside

22 the buyout area.

23 THE COURT: And you're objecting and what's the basis

24 of your objection?

25 MR. DUCHMANN: First off, I will call it to the



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1 Court's attention, and I would request that Mr. Kerry Miller

2 stand up and come forward.

3 THE COURT: Why is that, sir?

4 MR. DUCHMANN: Well, as you well know, I fired Sidney

5 Torres, but it was under false pretense-s.

6 THE COURT: Let me just say something to you,

7 Mr. Duchmann --

8 MR. DUCHMANN: Well, it lays a foundation on my

9 objection, Your Honor.

10 THE COURT: Fine. But you're here, and I respect

11 that, and you have a right to speak as an objector. But you'll

12 notice that this is a court of law and people handle themselves

13 with dignity in a court of law and they do not cast aspersions

14 or say anything of ill will against the other person.

15 MR. DUCHMANN: No, sir. I --

16 THE COURT: This is from the governor of the state of

17 Louisiana to private citizens. I expect that.

18 MR. DUCHMANN: Your Honor, this has relevance on

19 objection itself.

20 THE COURT: All right. So you're not represented?

21 You're representing yourself and you're objecting --

22 MR. DUCHMANN: Unfortunately, I am, yes, sir.

23 THE COURT: And the basis of your objection is you

24 feel you're not being paid enough money?

25 MR. DUCHMANN: The fairness of this situation is that



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1 the people across the street received three times more money

2 being in the fairness of this settlement and these people walk

3 and they have a normal life and they also live in a house right

4 now.

5 My mama didn't have that opportunity. She's

6 paid only one-third of what they would get -- what they have

7 received. And is that fair?

8 THE COURT: That's your objection?

9 MR. DUCHMANN: No, my objection goes on to -- well, I

10 filed a memorandum in support of my objection.

11 THE COURT: And I will make that a part of the

12 record.

13 MR. DUCHMANN: And also that, and this video will

14 show, 16 years ago that Murphy Oil failed to comply with state,

15 federal and local regulations.

16 As of three weeks ago, they also failed to let

17 the fire foreman inside the refinery. They stopped him from

18 going into the refinery. They locked the gate. And that just

19 shows you that they have no intention to ever, ever comply with

20 any laws and regulations set forth by this court or the state.

21 And if Kerry Miller would stand up and come

22 forward, I'd like to address the Court because I did file a

23 notice in judge chambers, and it wasn't in reference to the

24 attorneys we fired, it was in reference to Mr. Kerry Miller and

25 his conduct, disobeying a court order.



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1 THE COURT: Okay. I'm not going to do that,

2 Mr. Duchmann. I'll take your material on the record. I do

3 mark, for the record, that you object to the --

4 MR. DUCHMANN: I strongly object, Your Honor.

5 THE COURT: And as you say, you strongly object.

6 I'll take that into consideration and I'll rule on that in due

7 course.

8 Anything other than the video and the documents

9 that you --

10 MR. DUCHMANN: Well, I did have some witnesses, but

11 since President Junior Rodriguez's attorney for St. Bernard

12 Council called me and told me that Mr. Rodriguez would be in a

13 meeting with the Army Corps of Engineers. And I told him that

14 it was most important that he would come here today. He was

15 served.

16 THE COURT: Well, for the record, you served him, and

17 you served him in the 11th hour when he's going into a meeting.

18 I officially quashed the subpoena, so he need not be here.

19 MR. DUCHMANN: Well, then what you're saying is that

20 I don't have no witnesses to call now?

21 THE COURT: You have no witnesses to call.

22 MR. DUCHMANN: So my next course is the Fifth Circuit

23 Court of Appeals.

24 THE COURT: Well, we'll see --

25 MR. DUCHMANN: Your Honor, I'd rather not have to do



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1 this. I'd rather not be here today. I'm only here today

2 because of 3,009 Americans lost their life defending the

3 Constitution, which I'm here today to uphold this Constitution.

4 I think it is my duty as an American to be here for those who

5 cannot be here.

6 THE COURT: Okay. I appreciate your being here.

7 MR. DUCHMANN: Okay. I will file an appeal and take

8 it from there.

9 THE COURT: All right. Thank you very much.

10 MR. DUCHMANN: Your Honor, you did say you would like

11 to see the video and --

12 THE COURT: No, I've put the video into evidence.

13 I'll accept the video as evidence and I'll make it a part of

14 your objection; and also the documents that you have filed,

15 I'll make that a part of the record.

16 MR. DUCHMANN: Can you also make part of the record

17 that Mr. Kerry Miller did meet with me when you had a court

18 order to stop him from meeting with residents in the buyout

19 area?

20 THE COURT: What are you --

21 MR. DUCHMANN: It was under a court order that he

22 disobeyed.

23 THE COURT: Okay. All right. Thank you very much.

24 MR. DUCHMANN: So that doesn't mean nothing to you?

25 THE COURT: Anything else from anybody?



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1 MR. MILLER: Yes, Your Honor, briefly. Murphy would

2 like to respond to the objection of Mr. Duchmann.

3 Your Honor, it is black letter law that in order

4 to make an objection you must be a class member.

5 THE COURT: You may have a seat Mr. Duchmann. Sit

6 right at the -- make sure we get that document. Are you going

7 to give us the video?

8 MR. DUCHMANN: Yeah, I have a copy entered into the

9 record, Your Honor.

10 THE COURT: I'll give you an opportunity to

11 supplement the record.

12 MR. MILLER: Your Honor, Kerry Miller on behalf of

13 Murphy in response to what we just heard from Mr. Duchmann. It

14 is black letter law, Your Honor, in order to make a proper

15 objection to a class settlement that the objector need to be a

16 class member as well.

17 That's the law of the Federal Rules of Civil

18 Procedure in the Fifth Circuit and the U.S. Supreme Court, I

19 think in the Epstein case. That was what was contained in the

20 class action settlement agreement in the section on objections.

21 It was very specific that in order to make an objection, you

22 had to qualify as a class member. That was also what was

23 contained in the notice that Your Honor approved that went out.

24 I quote, Your Honor, the legal notice that

25 Mr. Duchmann apparently received read as follows, and this was



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1 in the property that he referenced located on Jacob Drive.

2 What we've conducted, Your Honor, is a search of

3 the records over in St. Bernard Parish which indicates that

4 property was owned on Jacob Drive by Mr. Duchman's parents;

5 that Mr. Duchman's father's succession was opened; that

6 Mr. Duchmann renounced his rights to that succession; and that

7 no succession has been opened on behalf of his mother's estate,

8 Your Honor.

9 Given that, it is the law of Louisiana that

10 Mr. Duchmann does not have standing to present a claim on

11 behalf of his mother or her estate, Your Honor.

12 THE COURT: Okay. Thank you.

13 MR. MILLER: That is detailed in our memo; and we

14 would like to file into the court record, Your Honor, we'll

15 mark as the next exhibit an affidavit containing evidence that

16 Mr. Duchmann has no ownership interest in the property.

17 THE COURT: I'll make it a part of the record.

18 Mr. Duchmann, you can respond to that.

19 MR. MEUNIER: For the record, the PSC joins in the

20 objection to lack of standing by this gentleman.

21 MR. MILLER: Your Honor, this is a joint exhibit and

22 we'll mark it as Exhibit Number 10 to today's hearing.

23 THE COURT: That's fine. Mr. Duchmann, you have an

24 opportunity to respond.

25 MR. DUCHMANN: Your Honor, as you well know, I



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1 appeared before the special master, which is present today in

2 this court. Also my brother was there who has power of

3 attorney to speak for my mother. He also at the time, you can

4 ask the special master, said that Wayne speaks for my family.

5 That is the person that has the executive of my

6 mama's estate at that time. The special master is right there.

7 And if you think that I'm here, for some reason, trying to

8 mislead the court, and I'm not. I'm here to protect the

9 individual rights of all Americans.

10 THE COURT: Okay. Fine. Thank you very much,

11 Mr. Duchmann.

12 MR. DUCHMANN: So the statement that he's made should

13 be stricken from the record.

14 THE COURT: Okay. Thank you, sir. All right. Any

15 other objectors? Any other objectors? Seeing no other

16 objectors --

17 MR. MEUNIER: Your Honor, just to complete the record

18 with respect to objections, we were in receipt of certain

19 letters from potential objectors and I would now, respectfully,

20 move for the dismissal of these objections for the failure to

21 appear today.

22 Letters of objection were received from Howell

23 Robertson, III, Daniel Bourgeois and Carrie Bourgeois, Daniel

24 Paul Bourgeois, Melissa and Edwin Macost, Donna LaBouf,

25 Kathleen O'Brien Bauers and Kim LaPara. And for the failure to



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1 appear, we respectfully move for the dismissal of those

2 objections.

3 THE COURT: I did set certain rules regarding

4 objectors and also I received a report from the special master

5 regarding objectors. I made those a part of the record and I

6 will rule on them in due course.

7 This concludes the settlement hearing. Let me

8 say that it's apparent to the Court after listening to all of

9 the information and reviewing all of the records as I have

10 done, that the settlement negotiations in this case were

11 conducted on an arm's length basis.

12 There's no evidence of fraud or collusion on the

13 parties. Extensive discovery was, obviously, taken in this

14 matter. Counsel worked literally around the clock to achieve

15 settlement within one year of the lawsuit being filed. Both

16 sides worked diligently and carefully assessed the risks and

17 potential rewards of trial versus settlement.

18 Notice was adequately given. I participated in

19 the design of the notice and made sure that it was given

20 throughout the area, the larger area. The response among the

21 class members has been overwhelming. With the exception of two

22 objections, it's been overwhelmingly in favor of the

23 settlement.

24 It's my inclination to, obviously, conclude that

25 the settlement is fair, reasonable and adequate. However, I do



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1 believe that it would be appropriate to give formal reasons for

2 the approval of the settlement. I want to discuss it in detail

3 and give the Court, and counsel, the benefit of my thinking on

4 this matter in rendering my opinion.

5 I hope to have my opinion out very shortly.

6 I've already taken the common benefit fund issue under

7 submission. I will be ruling on that expeditiously also. This

8 concludes the settlement fairness hearing and I thank the

9 parties, as well as counsel, for their participation.

10 The court will stand in recess.


12 (WHEREUPON, the Court was adjourned.)

13 CERTIFICATE

14 I, Jodi Simcox, RMR, Official Court Reporter for the

15 United States District Court, Eastern District of Louisiana, do

16 hereby certify that the foregoing is a true and correct

17 transcript, to the best of my ability and understanding, from

18 the record of the proceedings in the above-entitled and

19 numbered matter.

20

21

22 /s/Jodi Simcox, RMRJodi Simcox, RMR

23 Official Court Reporter

24

25

murphy oil fairness hearing 01-04-07[1]

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