KIMBERLY COLE, et al, on behalf of themselves
and all others similarly situated, Plaintiffs, vs.
NIBCO, Inc., Defendant

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY

Civil Action No. 13-cv-7871 (FLW)(TJB)

Frequently Asked Questions

  1. Why did I receive a Notice of Settlement?

    The United States District Court for the District of New Jersey, the federal court overseeing the Litigation and that preliminarily approved the Settlement, authorized distribution of a Notice to inform Settlement Class Members about the Settlement and their options before the Court decides whether to grant final approval of the Settlement.

    If you received the Notice directly without asking for it, then you have been identified by NIBCO or Plaintiffs as a potential Settlement Class Member.

  2. What is the lawsuit about?

    The Plaintiffs filed two class action lawsuits asserting numerous claims against NIBCO alleging that its Tubing, Fittings, and Clamps (collectively the “Covered Products”) are defective and prone to leak causing water damage. You can find more information about these products in response to Question #4 below.

    Those lawsuits –– Meadow, et al. v. NIBCO Inc., No. 15–cv–01124 (M.D. Tenn.) and Cole, et al. v. NIBCO Inc., No. 13–cv–7871 (D.N.J.) –– together are referred to as the “Litigation.”

    NIBCO rejects the claims and allegations in the Litigation, including that the Covered Products are defective. NIBCO further denies that it violated any law, engaged in any wrongdoing, or owes any liability in this case to Plaintiffs or anyone else. NIBCO is settling to avoid the expense, inconvenience, risk, and disruption of further litigation. The Settlement is not an admission of any liability.

    The Court has not decided that NIBCO violated any laws. The Notice is not an expression of any opinion by the Court on the claims alleged in the Litigation.

    Please note that the Settlement does not include any claims for personal injury and does not release any such claims of Settlement Class Members to the extent such claims exist.

  3. What is the background of this litigation?

    The original Complaint in the Litigation was filed on December 27, 2013, and the Parties have been in litigation for almost five (5) years. During this period, the Parties vigorously litigated the case and engaged in substantial discovery concerning the Covered Products. The discovery engaged in by the Parties including, without limitation: (a) the production and review of over one–hundred sixty thousand (160,000) pages of documents; (b) fifty–one (51) subpoenas issued to third parties; (c) depositions of thirty–one (31) fact witnesses including fourteen (14) Plaintiffs, nine (9) NIBCO employees, and eight (8) plumbers and third parties; (d) discovery from relevant foreign entities; (e) substantial work with seven (7) expert witnesses retained by the Parties in support of their respective positions in the Litigation; (8) inspections of Plaintiffs’ homes; (9) analysis of hundreds of sample Covered Products; and (9) seven (7) expert depositions.

    Following this extensive discovery process, the Parties engaged in an alternative dispute resolution (“ADR”) process which included multiple in–person mediation sessions overseen by professional mediators. Through this extensive process, which included additional ADR–related discovery, and further numerous communications among counsel for the Parties over the course of many months, the Parties finally reached the Settlement described and summarized in the Notice , and memorialized in the Settlement Agreement which can be read at the Important Documents and Dates page through this website.

  4. Who is included in the Settlement?

    The term "Settlement Class" is defined in the Settlement Agreement as:

    All Persons that own or have owned at any time since January 1, 2005, a residential or commercial structure in the United States that contains or contained NIBCO’s Tubing, Fittings, or Clamps, including their spouses, joint owners, heirs, executors, administrators, mortgagees, tenants, creditors, lenders, predecessors, successors, trusts and trustees, and assigns (“Occupant Persons”); as well as all Persons who have standing and are entitled to assert a claim on behalf of any such Occupant Persons, such as but not limited to a builder, contractor, distributor, seller, subrogated insurance carrier, or other Person who has claims for contribution, indemnity or otherwise against NIBCO based on claims for Qualifying Leaks of the Tubing, Fittings, or Clamps with respect to such residential or commercial structures. The Settlement Class includes all Persons who subsequently purchase or otherwise obtain an interest in a property covered by this Settlement without the need of a formal assignment by contract or court order.

    Excluded from the Settlement Class are Occupant Persons with respect to residential structures constructed by D.R. Horton, Inc.–Birmingham (including, but not limited to, those for which the plumbing contracting was performed by or on behalf of Dupree Plumbing Co. Inc.) and which are located in the following cities in Alabama: Bella Vista; Bessemer; Birmingham; Calera; Chelsea; Cottondale; Hoover; Kimberly; Leeds; Maylene; McCalla; Montgomery; Northport; Odenville; Pinson; Pratville; Springville; Trussville; and Tuscaloosa. Also excluded from the Settlement Class are Occupant Persons with respect to residential structures constructed by Continental Homes of Texas, L.P. (including, but not limited to, those for which the plumbing co tracting was performed by or on behalf of Christianson Air Conditioning and Plumbing, LLC) and which are located in the following cities in Texas: Boerne; Cibolo; Converse; Live Oak; Medina County; New Braunfels; Royse City; San Antonio; San Marcos; Schertz; Sequin; and Universal City. A list of such residential structures in Alabama and Texas covered by this exclusion are posted on the "Important Documents" page of this website. Also excluded from the Settlement Class are D.R. Horton, Inc.–Birmingham, Dupree Plumbing Co. Inc., Continental Homes of Texas, L.P., and Christianson Air Conditioning and Plumbing, LLC, solely with respect to the structures identified in that list.

    Also excluded from the Settlement Class are: (i) NIBCO, its officers, directors, affiliates, legal representatives, employees, successors, and assigns, and entities in which NIBCO has a controlling interest; (ii) judges presiding over the Litigation; and (iii) local, municipal, state, and federal governmental entities.

    The term “Tubing” means PEX tubing manufactured or sold by NIBCO in the United States using (or labeled by NIBCO as using) its 1006 formulation, including NIBCO NEXT–Pure Tubing, NIBCO DURA–PEX Tubing, and NIBCO PEX, during the time period from January 1, 2005 to the present, and used in residential or commercial structures. The term “Tubing” does not include any tubing that was manufactured or sold by NIBCO and that was used in industrial applications, irrigation applications, radiant heating applications, or international applications; as components in appliances; or in RVs.

    The term “Fittings” means ASTM F1807 yellow brass fittings manufactured or sold by NIBCO in the United States for use in PEX applications during the time period from January 1, 2005 to the present, and used in residential or commercial structures. The term “Fittings” does not include any fittings that were manufactured or sold by NIBCO and that were used in industrial applications, irrigation applications, radiant heating applications, or international applications; as components in equipment or appliances; or in RVs.

    The term “Clamps” means stainless steel clamps manufactured or sold by NIBCO in the United States for use in PEX applications during the time period from January 1, 2005 to the present, and used in residential or commercial structures. The term “Clamps” does not include any clamps that were manufactured or sold by NIBCO and that were used in industrial applications, irrigation applications, radiant heating applications, or international applications; as components in equipment or appliances; or in RVs.

  5. Is PEX 1006 Tubing still being sold?

    No. The product hasn’t been manufactured sold since 2013.

  6. Are the F1807 Fittings or Clamps still being sold?

    No. NIBCO stopped selling the Fittings and Clamps by 2015. The overwhelming majority were sold by the end of December 2012.

  7. How do I know if my residence or building has these products?

    There are several ways to find out if your home has these Covered Products.

    First, you can try to identify it yourself:

    • The Tubing has a print stream with NIBCO’s brand and the “1006” designation stamped on it, among other identifying pieces of information. If you have flexible plastic tubing that is not stamped “1006,” then that tubing is not part of this settlement. Click here for a photo.
    • The yellow brass Fittings are stamped “NIBCO F 1807” and can be located at joints in PEX tubing. Click here for a photo. If your PEX system includes yellow metal fittings and they are also stamped with interlocking ovals (click here for photo) or stamped DR (click here for photo), then they are not part of the settlement. Poly fittings are not part of this settlement.
    • The Fittings can be secured to the pipe by stainless steel Clamps. These clamps will be marked NIBCO. Click here for a photo.

    Second, if you know who built or installed the plumbing in your home, you can try contacting them to see if their records indicate whether your home has or had NIBCO PEX 1006 Tubing, F1807 Fittings, and/or related stainless–steel Clamps.

    Keep in mind that stopped selling the Tubing in 2013, and stopped selling Fittings and Clamps in 2015, though most were sold by the end of 2012.

    Third, if you have had some plumbing components removed, repaired, or replaced, you can check the remaining product to see if you can identify them as the covered Tubing, Fittings, or Clamps. If you have had a leak repaired, or if your entire plumbing system was replaced, you can try contacting the contractor or plumber who performed the work to determine whether their records indicate what kind of plumbing system was removed and whether it included any of the Covered Products.

  8. What if I have questions about a NIBCO product that is not included in the Settlement?

    This Settlement covers only the Tubing, Fittings, and Clamps. If you have questions about a NIBCO product not covered by the settlement, then you should contact NIBCO at 888.446.4226.

  9. How much is the total settlement fund?

    If the Court grants final approval of the Settlement, NIBCO will pay money into a Settlement Fund to reimburse Eligible Claimants who submit a timely and valid Claim Form based upon their unreimbursed costs spent on repairs and damages resulting from Qualifying Leaks from the Covered Products (as further defined below) and to pay for re–plumb remedies for those who qualify. The Settlement Fund will also be used to pay Class Counsel’s attorneys’ fees and costs, settlement administration costs, and any service awards to the Class Representatives, all subject to the approval of the Court. The maximum amount that NIBCO will pay pursuant to the Settlement is Forty–Three Million Five Hundred Thousand Dollars ($43,500,000.00). At the end of the Claim Period (defined as the time period from November 14, 2018 to May 16, 2025 (six (6) years after the Effective Date)) , any portion of the Settlement Fund not used to pay Eligible Claimants will remain with or be returned to NIBCO.

  10. What remedies are available under the Settlement?

    The Settlement shall provide the following remedies to Eligible Claimants who submit a valid and timely Claim Form to the Settlement Administrator:

    Past Property Damage Claims. Past Property Damage Claims are those that are based upon Qualifying Leaks that occurred between January 1, 2005 and May 16, 2019. Such Claims must be submitted to the Settlement Administrator by October 13, 2019 (150 days after the Effective Date) though the Settlement Administrator may extend this period for a particular Claimant upon a showing of good cause as determined by the Settlement Administrator. Eligible Claimants with Past Property Damage Claims shall receive up to 70% of their Reasonably Proven Property Damage. In order to ensure that the Net Settlement Fund is not depleted during the Claim Period, the Eligible Claimants shall receive an initial payment of 25%, and at the end of the Claim Period, the Eligible Claimants shall receive a second pro rata payment, which depending on the number of Claims submitted and the amount remaining in the Gross Settlement Fund shall make the total payment up to 70% of their Reasonably Proven Property Damage. The Claimant must have taken reasonable steps to mitigate (i.e., limit or stop) the effects of the Qualifying Leak.

    Future Property Damage Claims. Future Property Damage Claims are those that are based upon Qualifying Leaks that occur after May 16, 2019 and during the Claim Period. Such Claims must be submitted to the Settlement Administrator by 150 days after the Qualifying Leak occurs, though the Settlement Administrator may extend this 150-day period for a particular Claimant upon a showing of good cause as determined by the Settlement Administrator. Eligible Claimants with Future Property Damage Claims shall receive up to 70% of their Reasonably Proven Property Damage. In order to ensure that the Net Settlement Fund is not depleted during the Claim Period, the Eligible Claimants shall receive an initial payment of 25%, and at the end of the Claim Period, the Eligible Claimants shall receive a second pro rata payment, which depending on the number of Claims submitted and the amount remaining in the Gross Settlement Fund shall make the total payment up to 70% of their Reasonably Proven Property Damage. The Claimant must have taken reasonable steps to mitigate (i.e., limit or stop) the effects of the Qualifying Leak.

    Re-Plumb Claims for Claimants with Multiple Leaks. An Eligible Claimant who demonstrates that their residential or commercial structure has experienced three (3) or more Qualifying Leaks, each one occurring at a separate time after repair and in such a manner that re-plumbing all or part of the structure would mitigate future events, has the option of requesting a payment relating to a complete re-plumb of relevant NIBCO PEX Tubing, Clamps, and Fittings. Such Claims must be submitted to the Settlement Administrator by October 13, 2019 (150 days after the Effective Date) if the third Qualifying Leak occurred before May 16, 2019 (the Effective Date), or otherwise must be submitted by 150 days after the third Qualifying Leak occurs, though the Settlement Administrator may extend this 150-day period for a particular Claimant upon a showing of good cause as determined by the Settlement Administrator. The amount of the payment (the “Re-Plumb Calculation(s)”) shall be calculated at a rate of $600 per plumbing fixture present in the residential or commercial structure (e.g., the Re-Plumb Calculation for a home with 13.5 fixtures would be $8,100). The Re-Plumb Calculation shall be limited to a maximum of $16,000 per residence or structure. A schedule of qualifying fixtures and half-fixtures is available here, which shall be used by the Settlement Administrator in determining the amount of an Eligible Claimant’s Re-Plumb Calculation under this Paragraph. Eligible Claimants shall receive an initial payment of 25% of the Re-Plumb Calculation, and at the end of the Claim Period, the Eligible Claimants shall receive a second pro rata payment, which depending on the number of Claims submitted shall make the total payment up to 70% of their Re-Plumb Calculation. If an Eligible Claimant is compensated for a Re-Plumb Claim, that Eligible Claimant and their residential or commercial structure are no longer eligible to make any Future Property Damage Claims. The Settlement Administrator may engage one or more dedicated re-plumbers to complete approved re-plumbings as set forth in this Paragraph. To the extent an Eligible Claimant’s residential or commercial structure has experienced three (3) or more Qualifying Leaks and the Eligible Claimant paid for a complete re-plumb of Covered Products in the Eligible Claimant’s structure before the Preliminary Approval Date, the Eligible Claimant may request payment consistent with the terms and limitations of this Paragraph. Notwithstanding the requirement that a Claimant’s residential or commercial structure must have experienced three (3) or more Qualifying Leaks, each one occurring at a separate time after repair and in such a manner that replumbing all or part of the structure would mitigate future events, a Claimant who has paid for a complete re-plumb of Covered Products in the Claimant’s structure after at least one (1) Qualifying Leak can seek consideration as an exception and request payment consistent with the terms and limitations of this Paragraph upon a showing of good cause as determined by the Settlement Administrator and approved by NIBCO and Co-Lead Class Counsel that the Claimant’s unique circumstances warranted such re-plumb to mitigate future leaks.

    Please click here to see a schedule of qualifying fixtures and half-fixtures.

  11. What is considered a Qualifying Leak?

    The term “Qualifying Leak” means:

    1. With respect to Tubing: A physical escape of water from Tubing causing damage.
    2. With respect to Fittings: A physical escape of water from a Fitting causing damage.
    3. With respect to Clamps: A physical escape of water from a Clamp causing damage.
    4. A Qualifying Leak does not occur where, based on available evidence, a physical escape of water from a Covered Product causing damage was the clear result of: (1) a penetration of the Tubing, Fittings, and/or Clamp from a foreign object such as a nail or other physical abuse; (2) improper attachment of the Tubing, Fittings, and/or Clamp to plumbing components or appliances; (3) improper stress on the Tubing, Fittings, and/or Clamp due to improper installation; (4) leaks due to an improperly set or malfunctioning pressure reducing valve not manufactured or sold by NIBCO; (5) leaks due to age of fixture sealant components supplied or provided by a plumber; or (6) any installation issue in violation of NIBCO’s installation guidelines and/or unrelated to the design, manufacture, performance, or selection of the Tubing, Fittings, and/or Clamps. If it is determined that a Qualifying Leak has not occurred because the physical escape of water causing damage was clearly the result of one or more of the causes set forth in (1) through (6) above with respect to a particular Claimant, then that Claimant shall have the benefits of the carve-out of the release provisions in the Settlement Agreement , meaning that Claimant shall not be precluded by the Release from filing claims against their installer or third parties.

    If a Claimant wishes to appeal the Settlement Administrator’s rejection of a Claim on the basis of whether the Claim presents a Qualifying Leak, then the Claim will be submitted to an Independent Engineering Consultant appointed by the Court. The Claimant and NIBCO will both have the opportunity to present five-page statements to the Independent Engineering Consultant setting forth their position about whether the Claim should be deemed eligible or ineligible for compensation under the Settlement. NIBCO shall have the burden of establishing that a leak was not a Qualifying Leak if it initiates the challenge. The decision of the Independent Engineering Consultant shall be final.

  12. How do I submit a Claim Form?

    To be eligible to receive any of the remedies described above, you must complete and submit a valid and timely Claim Form. Your Claim Form and supporting documentation may be submitted:

    • online through the claim portal located on this website;
    • by email to the Settlement Administrator using the email address info@pexsystemsettlement.com ; or
    • by U.S. Mail to the Settlement Administrator using the address: PEX System Settlement, Attn: CLAIMS, PO Box 58086, Philadelphia, PA 19102.

    Claim Forms are available for download through this website (click here) and are also available by email or by writing to the Settlement Administrator using the information above.

    If the Qualifying Leak occurred between January 1, 2005 and May 16, 2019 (the Effective Date), the deadline for submitting a Claim Form is October 13, 2019 (150 days after the Effective Date). If the Qualifying Leak is experienced after May 16, 2019 (the Effective Date) and during the Claim Period, the deadline for submitting a claim form is 150 days after the Qualifying Leak occurs. Re-Plumb Claims for those with at least three separate Qualifying Leaks before or during the Claim Period (see question 7) must be submitted to the Settlement Administrator by October 13, 2019 (150 days after the Effective Date) if the third Qualifying Leak occurred before May 16, 2019 (the Effective Date), or otherwise must be submitted within 150 days after the third Qualifying Leak occurs.

    Please check back for updates regarding the Effective Date and corresponding Claim Form Deadline dates. In any event, please file your Claim Form and submit supporting documents and materials as soon as possible.

  13. How do I return my failed components to the Settlement Administrator?

    Samples should be sent in appropriately sized and padded packaging, such as shipping tubes or sufficiently long boxes, to assure against shipping and handling damages. The tubing sample should include the section where there has been a leak and if possible the identification print stream to assure that it is NIBCO tubing. Please do not bend or straighten the section of tubing in any fashion, including to fit it into packaging. The entire fitting or clamp that is the subject of a claim should be included.

    Please send materials to the following address:

    NIBCO PEX Settlement Administrator
    PO BOX 58086
    1500 JFK Blvd, Suite C31
    Philadelphia, PA 19102

    PLEASE NOTE: If sending materials separately from your Claim Form, please ensure you include your Notice ID within the package so we can effectively link your materials with the Claim Form you filed.

  14. What do I need to include with my Claim Form showing the identity of Tubing, Fittings or Clamps in my home (or structure)?

    Any Claimant making a Claim must among other things provide proof of the presence of NIBCO Tubing, Fittings, and/or Clamps in the subject property. Claims for future leaks in which the failed section of the Tubing and/or the failed Fitting and/or Clamp is not provided will only be honored if there is good cause for the failure to provide the failed product and the other documentation submitted is sufficient to establish all elements of a valid claim. The settlement administrator will make reasonable efforts to assist claimants in understanding and satisfying the documentation requirements.

    You may for example identify your structure as containing Tubing, Fittings, and/or Clamps by one or more of the following means: inspection report; bills of sale; purchase orders; builder or plumbing records; correspondence identifying Tubing, Fittings, and/or Clamps in the subject structure; report from plumber, engineer, architect, or home inspector identifying Tubing, Fittings, and/or Clamps in the subject structure; photographs.

  15. What happens after I submit my Claim Form?

    The Settlement Administrator will review all submitted Claim Forms and supporting documentation and materials for eligibility for payment under the terms of the Settlement Agreement. A copy of the Settlement Agreement can be viewed on the Important Documents page through this website.

    If you fail to provide all information, documents, materials, and/or photographs required by the Claim Form, the Settlement Administrator will notify you in writing of your failure to do so and give you a chance to provide all the necessary missing items. The missing items must be received by the Settlement Administrator (or postmarked) within 30 days from the postmarked date of that written deficient Claim notice. Failure to comply will result in a denial of your Claim.

  16. What happens if I experience a leak of one of the Covered Products in the future?

    If you experience a leak from a Covered Product in the future, you should immediately take steps to stop the escape of water to limit or prevent damage. If that leak of a Covered Product occurs during the six-year claim period, your exclusive remedy is filing a Claim Form in this Settlement. The Claim Period will depend on the date the Settlement received final approval and is not yet set. If you experience a leak after the Claim Period expires, then you should contact NIBCO.

  17. What are the Released Claims?

    Release. Upon May 16, 2019 (the Effective Date), all Settlement Class Members, as well as any Person who receives any payment from the Net Settlement Fund, on behalf of themselves and their agents, heirs, executors and administrators, successors, assigns, insurers, attorneys, representatives, and any and all Persons who seek to claim through or in the name or right of any of them (the “Releasing Parties”), release and forever discharge (as by an instrument under seal without further act by any Person, and upon good and sufficient consideration), NIBCO, its administrators, insurers, reinsurers, agents, firms, parent companies/corporations, sister companies/corporations, subsidiaries and affiliates, and any sales agents and distributors, wholesalers, retailers, plumbers, homebuilders, contractors, engineers, architects, and any other product or service provider or any other party in the chain of distribution who distributed, specified, recommended, sold, and/or installed the Tubing, Fittings, and/or Clamps, and all of the foregoing Persons’ respective predecessors, successors, assigns and present and former officers, directors, shareholders, employees, agents, attorneys, and representatives (collectively, the “Released Parties”), from each and every claim of liability, on any legal or equitable ground whatsoever, including relief under federal law or the laws of any state, regarding or related to NIBCO’s Tubing, Fittings, and/or Clamps, including without limitation their design, manufacture, purchase, use, marketing, promotions, sale, or certification, and including without limitation all past, present, or future claims, damages, or liability on any legal or equitable ground whatsoever, and regardless of whether such claims might have been or might be brought directly, or through subrogation or assignment or otherwise, on account of or related to the Tubing, Fittings, and/or Clamps, which were alleged or could have been alleged in the Complaints filed in the Litigation. The Release is as a result of membership as a Settlement Class Member, status as Releasing Parties, the Court’s approval process herein, and the occurrence of the Effective Date (May 16, 2019), and is not conditional on receipt of payment by any particular member of the Settlement Class or Releasing Party. Without in any way limiting its scope, and, except to the extent otherwise specified in the Settlement Agreement , the Release covers by example and without limitation, any and all claims for reasonable attorneys’ fees , costs, expert fees, consultant fees, interest, litigation fees, costs, or any other fees, costs, and/or disbursements incurred by any attorneys, Class Counsel, Plaintiffs, Settlement Class Members, or any Releasing Party who claim to have assisted in conferring the benefits under this Settlement upon the Settlement Class. This Settlement Agreement and the Release provided for herein shall not and are not intended to release the claims of the Releasing Parties against the suppliers of raw materials, components, or ingredients used in the manufacture of the Tubing, Fittings, and/or Clamps, which the Releasing Parties hereby fully and forever assign, transfer, and convey to NIBCO. For purposes of any claims by NIBCO against the suppliers of raw materials, components, or ingredients used in the manufacture of the Tubing, Fittings, and/or Clamps, should such supplier seek to join any Releasing Party in such a claim, NIBCO shall defend, indemnify, and hold harmless the Releasing Party from any and all claims of any such supplier against the Releasing Party.

    Exclusions from Release. All personal injury claims are expressly excluded from the Release. In addition, subject to the terms of Paragraph 34 of the Settlement Agreement , the Parties further agree that certain limited claims as specified below, which a Releasing Party has brought or may in the future bring against an installer, plumber, homebuilder, contractor, or other product or service provider, or any other party in the chain of distribution who purchased, specified, recommended, sold, and/or installed the Tubing, Fittings, and/or Clamps, related solely and exclusively to the alleged faulty installation of the Tubing, Fittings, and/or Clamps, are expressly not released as to such Persons. This limited exception shall include only claims alleging that a party or parties other than NIBCO are wholly responsible for a leak of the Tubing, Fittings, or Clamps, including, without limitation, as a result of (1) a penetration of the Tubing, Fittings, and/or Clamps from a foreign object such as a nail or other physical abuse; (2) improper attachment of the Tubing, Fittings, and/or Clamps to plumbing components or appliances; (3) improper stress on the Tubing, Fittings, and/or Clamps due to improper installation; (4) leaks due to an improperly set or malfunctioning pressure-reducing valve not manufactured or sold by NIBCO; (5) leaks due to age of fixture sealant components supplied or provided by a plumber; or (6) any installation issue in violation of NIBCO’s installation guidelines and/or unrelated to the design, manufacture, performance, or selection of the Tubing, Fittings, and/or Clamps. Nothing in this Paragraph shall permit any Releasing Party to bring any other claims released herein, including without limitation claims for improper, insufficient, or negligent advice, recommendation, solicitation, purchase, selection, or sale of the Tubing, Fittings, and/or Clamps, and in no event shall any claim whose prosecution is permitted by this Paragraph allege, purport to allege or depend on any wrongful act, error or omission, loss, or liability, whether strict, or due to fault or otherwise, by NIBCO. The Releasing Parties and NIBCO do not intend to create and do not believe that the reservation provided in this Paragraph creates any basis for a claim of indemnification, contribution, or any other claim, however denominated, by a nonparty against the Released Parties. This provision is intended solely to preserve a Releasing Party’s ability to seek relief against the nonreleased individuals or entities for liability unrelated to NIBCO as expressly specified in this Paragraph. In addition, the Releasing Parties agree that in any action brought by a Releasing Party against any third party based on a leak that is not a Qualifying Leak, should any such third party sued by a Releasing Party file a claim or cause of action against any Released Party for contribution, indemnification, or any other claim, however denominated, arising out of or related to the Tubing, Fittings, and/or Clamps, the Releasing Parties shall hold NIBCO and the Released Parties harmless, agree to a judgment in NIBCO’s and the Released Parties’ favor dismissing all claims asserted by the Releasing Party or anyone claiming by, through, or under the Releasing Party, and to the extent that the claims against NIBCO or the Released Parties are not released, then reduce or remit any judgment against such third party by the percentage, amount, or share necessary under applicable law to fully discharge and relieve NIBCO and the Released Parties of liability to such third party for claims for contribution, indemnification, or any other claim, however denominated, including attorneys’ fees and costs such Person may seek against NIBCO and the Released Parties. However, the Releasing Parties’ obligation is limited to no more than the amount of the judgment against NIBCO or the Released Parties. If any third party sued by a Releasing Party obtains a judgment against NIBCO or any Released Party for contribution, indemnification, or any other claim, however denominated, the Releasing Party agrees that the Releasing Party shall reduce or remit its judgment against such third party by the amount of such third party’s judgment against NIBCO and the Released Party not to exceed the amount of that portion of the judgment for which such third party obtains contribution, indemnification, or other relief, however denominated, so as to fully satisfy such third party’s judgment against NIBCO and the Released Party including attorneys’ fees and costs such third party may seek against NIBCO and the Released Party. In any settlement between any of the Releasing Parties and any Person arising out of or related to NIBCO’s Tubing, Fittings, and/or Clamps, the Releasing Parties shall be deemed to have obtained a release in favor of all Released Parties.

  18. Who is Class Counsel?

    In its Preliminary Approval Order, the Court appointed Shanon J. Carson, Lawrence Deutsch and Jacob M. Polakoff of Berger Montague PC (www.bergermontague.com) , and Joseph G. Sauder, Matthew D. Schelkopf and Joseph B. Kenney of Sauder Schelkopf LLC (www.sauderschelkopf.com) , as Co-Lead Class Counsel to represent Plaintiffs and the Settlement Class Members. You will not be charged for these lawyers. If you wish to be represented by your own lawyer, you may hire one at your own expense. The contact information for Co-Lead Class Counsel is set forth below:

    Shanon J. Carson
    Lawrence Deutsch
    Jacob M. Polakoff
    Berger Montague PC
    1818 Market Street, Suite 3600
    Philadelphia, PA 19103
    Telephone: (215) 875-3070
    Email: nibco@bm.net

    Joseph G. Sauder
    Matthew D. Schelkopf
    Joseph B. Kenney
    Sauder Schelkopf LLC
    555 Lancaster Avenue
    Berwyn, PA 19312
    Telephone: (888) 711-9975
    Email: jbk@sstriallawyers.com

  19. How is Class Counsel being paid?

    Within the time period established by the Court and no later than thirty (30) days prior to the Objection and Opt Out Deadline (currently February 27, 2019), Class Counsel will file a Motion for Approval of Attorneys’ Fees, Cost and Service Awards to be paid from the Gross Settlement Fund. That Motion, when filed, will be posted on this website. Class Counsel in the Litigation shall apply for the following: (a) attorneys’ fees not to exceed 29.885% of the Gross Settlement Fund; (b) reimbursement of litigation costs plus reasonable costs incurred through the Effective Date (which are currently approximately $1,095,000); and (c) service awards of $10,000 for Kimberly and Alan Cole, James Monica, Linda Boyd, Michael McMahon, Ray Sminkey, James Medders, Robert and Sarah Peperno, Kelly McCoy, Chad Meadow, John and Susan Plisko, and Kenneth McLaughlin (which shall also represent a per-household limitation), and service awards of $2,500 for Lesa Watts, Ryan Kenny, and Alexander and Andrea Davis (which shall also represent a per-household limitation), in recognition of their respective time, costs and effort in the Litigation in, for example and as applicable, producing documents and information to Class Counsel, sitting for deposition, and permitting a home inspection, among many other representative duties and services performed.

  20. How do I opt out of the Settlement?

    Settlement Class Members may submit a Request for Exclusion from (i.e., “opt-out” of) the Settlement among other reasons to preserve their own individual rights to sue or continue to sue NIBCO with respect to the Covered Products. A member of the Settlement Class who submits a Request for Exclusion cannot object to the Settlement and is not eligible to receive any Settlement Payment.

    To validly request exclusion from the Settlement Class, a Settlement Class Member must submit a written Request for Exclusion to the Settlement Administrator so that it is postmarked by February 27, 2019 stating that “I wish to exclude myself from the Settlement Class in the NIBCO Litigation Class Action Settlement” (or substantially similar clear and unambiguous language). That written request shall contain the Settlement Class Member’s printed name, address, telephone number, email address, and date of birth. The Request for Exclusion must contain the actual written signature of the Settlement Class Member seeking to exclude himself or herself from the Settlement Class. Requests for Exclusion cannot be made on a group or class basis, except that joint owners of the same residence or structure may opt out by using the same form so long as it is individually signed by each joint owner.

    All Requests for Exclusion must be sent to the Settlement Administrator at the following address: Class Action Opt-Outs, Attn: NIBCO Class Action Settlement PO Box 58086, 1500 JFK Boulevard, Suite C31, Philadelphia, PA 19102 .

    Those Persons falling within the definition of the Settlement Class as “Persons who have standing and are entitled to assert a claim on behalf of any such Occupant Persons” need not file a separate Request for Exclusion for each residential and/or commercial structure for which they meet this definition so long as they identify each such structure for which they are opting out in their Request for Exclusion; provided, however, that any such Persons cannot opt out for purposes of some structures but remain in the Settlement Class for others.

    Any Settlement Class Member who does not submit a valid and timely written Request for Exclusion shall be bound by all subsequent proceedings, orders and judgments in this Litigation, including, but not limited to, the Release, the Final Approval Order, and the Final Judgment, even if such Settlement Class Member has litigation pending, or subsequently initiates litigation, against NIBCO or any Released Party relating to the Released Claims.

  21. How do I object to the Settlement?

    Any Settlement Class Member who does not submit a written Request for Exclusion may present a written objection to the Settlement explaining why he or she believes that the Settlement Agreement should not be approved by the Court. A Settlement Class Member who wishes to submit an objection must deliver to the Settlement Administrator so that it is postmarked by February 27, 2019 , a detailed written statement of the objection(s) and the aspect(s) of the Settlement being challenged, as well as the specific reasons, if any, for each such objection, including any evidence and legal authority that the Settlement Class Member wishes to bring to the Court’s attention.

    That written statement must contain (a) the Settlement Class Member’s printed name, address, telephone number, and date of birth; (b) evidence showing that the objector is a Settlement Class Member, including the address of the residence or structure that contains or contained a Covered Product and proof that the residence or structure contains or contained a Covered Product (photographs, contemporaneous installation records, etc.); (c) any other supporting papers, materials, or briefs that the Settlement Class Member wishes the Court to consider when reviewing the objection; (d) the actual written signature of the Settlement Class Member making the objection; and (e) a statement whether the objecting Settlement Class Member and/or his or her counsel intend to appear at the Final Approval Hearing. If a Settlement Class Member or counsel for the Settlement Class Member who submits an objection to this Settlement has objected to a class action settlement on any prior occasion, the objection shall also disclose all cases in which they have filed an objection by caption, court and case number, and for each case, the disposition of the objection.

    A Settlement Class Member may object on his or her own behalf or through an attorney (hired at their own expense); however, even if represented, the Settlement Class Member must individually sign the objection and all attorneys who are involved in any way asserting objections on behalf of the Settlement Class Member must be listed on the objection papers. Counsel for the Parties may take the deposition of any objector prior to the Final Approval Hearing in a location convenient for the objector.

    Any objector who files and serves a timely written objection as described above may appear at the Final Approval Hearing, either in person at their own expense or through personal counsel hired at the objector’s expense, to object to the fairness, reasonableness, or adequacy of any aspect of the Settlement on the basis set forth in his or her objection. As noted above, objectors or their attorneys who intend to make an appearance at the Final Approval Hearing must state their intention to appear in the objection delivered to the Settlement Administrator.

    All written Objections must be sent to the Settlement Administrator at the following address: Class Action Objections, Attn: NIBCO Class Action Settlement, PO Box 58086, 1500 JFK Boulevard, Suite C31, Philadelphia, PA 19102 .

  22. When and where is the Final Approval Hearing?

    The Court will hold a Final Approval Hearing on April 8, 2019 at 10:00 a.m., at the United States District Court for the District of New Jersey at 402 East State Street, Trenton, NJ 08608, in Courtroom 5-E, before Judge Freda L. Wolfson, to consider whether the Settlement is fair, adequate, and reasonable, and whether it should be finally approved. If there are objections, the Court will consider them at that time. The Court will also consider at this time Class Counsel’s Motion for Attorneys’ Fees, Costs and Service Awards.

    Important: The date and time of the Final Approval Hearing is subject to modification by the Court so please check back here periodically for updates.

    Please note that Class Counsel is working on your behalf and will answer any questions that the Court may have about the Settlement. You are welcome to attend the Final Approval Hearing but your appearance is not necessary to receive any benefits available under the Settlement.