Petition for Writ of Certiorari — Joseph Sheely, et al., Petitioners v. Harold R. Feezle, et al.

Supreme Court briefFeb 2, 2026

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In the

Supreme Court of the United States

In re East Palestine Train Derailment

REV. JOSEPH SHEELY; ZSUZSA TROYAN,

TAMARA FREEZE, SHARON LYNCH, and

CARLY TUNNO,

Petitioners

HAROLD R. FEEZLE, et al., on behalf of themselves

and all others similarly situated; and

NORFOLK SOUTHERN RAILWAY COMPANY;

NORFOLK SOUTHERN CORPORATION,

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

US COURT OF APPEALS FOR THE SIXTH CIRCUIT

_______________________________________________

PETITIONERS’ APPENDIX IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

VOLUME 2 OF 3

_______________________________________________

ALLAN FALK

Counsel of Record

ALLAN FALK, P.C.

2010 CIMARRON DRIVE

OKEMOS, MI 48864-3908

(517) 381-8449

DAVID M. GRAHAM

Counsel for Petitioners

GRAHAM INSUR. LAWYERS

210 E. FORSYTH ST.

JACKSONVILLE, FL 32202

(904) 567-6529

Volume 2

Page #

Materials Essential to

Understanding the Petition

OO.

PP.

QQ.

RR.

SS.

Feezle et al. v Norfolk Southern Ry.

Co., No. 4:23-cv-00242, U.S. District

Court for the Northern District of

Ohio. Kroll Settlement Administration,

LLC’s answer in opposition to class

counsel’s motion for order to show

cause, filed November 24, 2025.

741

Kizer v. St. Jude’s Children’s Research

Hosp. (6th Cir. No. 24-5207, Nov. 18,

2024).

796

Feezle et al. v Norfolk Southern Ry.

Co., No. 4:23-cv-00242, U.S. District

Court for the Northern District of

Ohio.

Class action settlement as

approved by the court on September

27, 2024.

819

Feezle et al. v Norfolk Southern Ry.

Co., No. 4:23-cv-00242, U.S. District

Court for the Northern District of

Ohio. Transcript of September 24,

2024 Fairness Hearing.

952

Feezle et al. v Norfolk Southern Ry.

Co., No. 4:23-cv-00242, U.S. District

Court for the Northern District of

Ohio. Declaration of Stephen Petty

dated September 21, 2024.

[partial] 1058

Page ii

Appendix OO

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: EAST PALESTINE

TRAIN DERAILMENT Case No. 4:23-cv-00242BYP

Judge Benita Y. Pearson

KROLL SETTLEMENT ADMINISTRATION

LLC’S OPPOSITION TO CLASS COUNSEL’S

STEP ONE MOTION FOR ORDER TO SHOW

CAUSE

Pet. App. 741

Appendix OO

TABLE OF CONTENTS

Page

INTRODUCTION…………………………………………1

BACKGROUND…………………………………………...3

A. The Court’s orders required KSA to distribute

settlement funds using class counsel’s

formulas………………........................................3

B. The Court’s orders required KSA to calculate

a fixed amount for each personal injury

payment, unlike the pro rata amounts for

relative shares of direct payments……………..4

1. Direct payments………………………………4

2. Personal injury payments…………………...5

C. Class counsel developed the allocation plan

and, to encourage more claims, promised class

members even higher personal injury

payments…………………………………………6

D. Class counsel set a “preliminary” allocation for

all personal injury payments…………………...9

E. Class counsel’s allocation plan required KSA

to calculate fixed personal injury payments—

not a pro rata division of relative shares……12

F. When class counsel directed KSA to begin

making personal injury payments, they knew

that KSA was still evaluating claims on a

Pet. App. 742

Appendix OO

rolling basis………………………………………12

G. Class counsel approved of KSA calculating

personal injury payments usingthe $25,000

base payment formula from the plan of

distribution……………………………………….14

H. KSA discovered and told class counsel that

personal injury payments might exceed their

“preliminary” allocation for those payments...15

I. KSA learned that it was terminated, with

contempt proceedings to begin………………...15

ARGUMENT……………………………………………17

I. Class counsel must prove with clear and

convincing evidence that KSA fully understood

the meaning of a definite and specific court

order but ignored it………...17

II. KSA followed the Court’s orders……………...18

The orders required KSA to calculate

each payment by starting with $25,000

and adjusting it based only on factors

specific to each claim…………………...18

A pro rata or proportional approach

would have violated the Court’s

orders……………………………………...20

Class counsel cite no cases supporting

contempt here……………………………23

III. Inadvertent calculation errors—which KSA

discovered, disclosed, and offered to repay—do

not show that KSA chose to ignore a court

Pet. App. 743

Appendix OO

order………………………………………………24

IV. Class counsel cannot prove contempt for

any other issues ……………………………..27

A. KSA’s experience was neither the

subject of an order nor

misrepresented…………………………..27

B. KSA fully cooperated when transferring

records to Epiq, without violating any

unequivocal command from the Court.27

The motion’s requests for relief are

improper………………………………….28

A. Class counsel cannot obtain

disgorgement of all amounts KSA

received…………………………………...28

B. Class counsel cannot force KSA to

discuss this case or others every time a

litigant considers hiring KSA for class

administration work …………………...30

CONCLUSION…………………………………………..30

Pet. App. 744

Appendix OO

TABLE OF AUTHORITIES

Cases

Page(s)

Cal. Artiﬁcial Stone Paving v. Molitor,

113 U.S. 609 (1885)…………………………………..18

In re Columbia Gas Cases,

No. 1877CV01343G (Mass. Super. Ct.)……………23

Cordoza v. Pac. States Steel Corp.,

320 F.3d 989 (9th Cir. 2003) ………………………29

Davis v. Detroit Downtown Dev. Auth.,

2020 WL 3097262 (E.D. Mich.) …………………...22

De Simone v. VSL Pharms.,

36 F.4th 518 (4th Cir. 2022)………………………..26

Elec. Workers Pension Tr. Fund v. Gary’s Elec. Serv.

Co., 340 F.3d 373 (6th Cir. 2003) ……..18, 23, 30

Gascho v. Glob. Fitness Holdings,

875 F.3d 795 (6th Cir. 2017)……………17, 18, 25, 27

Int’l Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821 (1994)…………………………………..30

Liu v. SEC,

591 U.S. 71 (2020)…………………………………….28

Pet. App. 745

Appendix OO

McCormick v. Adtalem Glob. Educ.,

2018-CH-04872 (Ill. Cir. Ct.)………………………23

Osborn v. Griﬃn,

865 F.3d 417 (6th Cir. 2017) ……………………….28

PlayNation Play Sys. v. Velex,

939 F.3d 1205 (11th Cir. 2019)……………………….26

Taggart v. Lorenzen,

587 U.S. 554 (2019)………………………………….18

Pet. App. 746

Appendix OO

INTRODUCTION

Class counsel accuses Kroll Settlement

Administration (KSA) of failing to use a pro rata

proportional system to split up personal injury

payments among class members. They contend that

their Court-approved settlement agreement and plan

to distribute the settlement funds required KSA to

use that system to divide the amount they set aside

for personal injury claims.

So far, the Court has heard only class counsel’s

side of the story. But their contention contradicts the

actual requirements of the agreement and plan as

well as what they told this Court to win approval of

both. Most importantly, their contention contradicts

what they told class members to persuade them to

opt in and release their personal injury claims.

At every turn—in the agreement and the

plan’s plain language, in written and verbal

statements to this Court, and at a videotaped

meeting with class members—class counsel promised

that a formula starting with a $25,000 base case

would determine personal injury payments. They

never hinted that any sort of proportional or pro rata

comparison of class members would play any role in

reducing that base amount. They might wish now

that they had put that system into place, but they did

not, and they cannot blame KSA.

On that record, class counsel asks this Court

Pet. App. 747

Appendix OO

to hold KSA in contempt. Their motion gets just one

thing right: “To justify holding a litigant in civil

contempt, the moving party must demonstrate by

clear and convincing evidence that the non-moving

party violated a deﬁnite and speciﬁc order of the

court.” (Mot., Dkt. 1005-1, at 21-22.) But their motion

will disappoint any reader who expected it to begin

by quoting the agreement and plan provisions that

KSA supposedly violated. Incredibly, the motion

never quotes any provision. That is because the

agreement and plan require an independent

calculation for each class member’s separate personal

injury payment; they forbid the use of a pro rata

proportional allocation system.

After the Court preliminarily approved the

settlement and the claims period opened, so few class

members made personal injury claims that class

counsel worried the defendant would [*2*] withdraw

from the settlement, nullifying class counsel’s $162

million fee. To encourage more claims, and for the

beneﬁt of class members, class counsel boosted each

payment from a base of

$10,000 to a new base of $25,000. Then they held a

videotaped town hall at which they told class

members “those payments are now … going to be

$25,000 per person.” There was no mention of a pro

rata or proportional adjustment.

The plan’s text conﬁrms this. It states that

personal injury claimants have a “base” of 100 points

and are “entitled to $25,000 per person,” with

Pet. App. 748

Appendix OO

“payments increasing or decreasing from the ‘base

case’ depending on the factors presented in their

claim forms,” such as distance from the derailment,

which increase or decrease the number of points.

Every personal injury illustration in the plan showed

an independent calculation for each person’s

payment. No illustration mentioned any other class

member’s claim, as a pro rata adjustment would

require. Nor did any illustration refer to any kind of

pro rata, proportional, or relative share of a fund.

The plan set a “preliminary” allotment for

personal injury payments of $120 million. In case

that amount might not cover all claims, the plan also

included “two additional safeguards for just

compensation.” The plan allowed undistributed funds

from one type of claim to be poured over for other

types of claims, and it held back $10 million “to

reinforce any program that may need to be

recapitalized for any reason.” It added that the

“ﬁnal” total allotment for personal injury claims

would depend on the number and speciﬁcs of the

claims received.

Class counsel now complain there are too

many personal injury claims, but their motion does

not mention the safeguards that address this

situation. Nor does their motion explain how, if

personal injury payments were supposed to divide

proportionally the entire amount allocated for them,

there could ever be undistributed funds to pour over

for other types of claims.

Pet. App. 749

Appendix OO

Given the clarity of their agreement, plan, and

statements to this Court and class members, class

counsel’s claim to have been “shocked” and “stunned”

upon learning that KSA [*3*] started each

calculation at $25,000 and adjusted it with points

using the plan’s factors (Mot. at 11‑12) is the real

shock and stunner. Class counsel directed KSA to

calculate payments that way and directed KSA to

evaluate and pay claims on a rolling basis to start

the payments as

quickly as possible—without ﬁrst evaluating all

claims together to divide a total allocation into

proportional shares. KSA had to process tens of

thousands of claims, assist class members in

remedying claim deﬁciencies, and allow time for

challenges to payments. Doing all those things

simultaneously at the start would have been

impossible.

Neither class counsel nor KSA’s replacement,

Epiq, provides any reason for a contempt ﬁnding

here. Neither identiﬁes any problem with KSA’s

work other than some inadvertent calculation errors

(unrelated to pro rata proportional payments) that

KSA ﬂagged for class counsel back in May and has

oﬀered to reimburse in full.

Both sides initially worked toward resolving

the issues, but then class counsel abruptly decided to

delay payments to class members by ﬁring and

litigating against KSA. Their litigation position has

no support in the Court’s orders or in

Pet. App. 750

Appendix OO

contemporaneous evidence. In fact, discovery has

now shown that class counsel strong-armed Epiq into

parroting their position about a pro rata proportional

allocation system in affidavits submitted to the

Court.

With a full record, which the Court did not

have previously in what class counsel presented,

KSA now respectfully asks this Court to deny class

counsel’s motion, deny any finding of contempt, and

order an end to this contempt proceeding.

BACKGROUND

The Court’s orders required KSA to

distribute settlement funds using class

counsel’s formulas.

In April 2024, class counsel announced a $600

million settlement. They sent KSA near-ﬁnal drafts

of the settlement agreement, but KSA did not

participate in negotiating the settlement or the

agreement.

[*4*] The May 21, 2024, order that

preliminarily

approved

the

settlement

also

“preliminarily approves the Settlement Agreement

and the terms embodied therein.” (Preliminary

Approval Order, Dkt. 458, § 2.) The agreement states

that the $600 million settlement “shall be allocated

pursuant to the terms in Section XIII.” (Settlement

Agreement, Dkt. 452-2, § II(SS).) Section XIII, in

Pet. App. 751

Appendix OO

turn, states that after deducting items such as class

counsel’s fee—which totaled $162 million—the funds

for class members “shall be distributed …

pursuant to allocation formulas and amounts

to be determined by Class Counsel.” (Id. § XIII(C)

(emphasis added).)

The agreement gave Norfolk Southern the

right to “review and consent” to class counsel’s

formulas and amounts. (Id.) But it gave KSA, as

administrator, no such right. Instead, it required

KSA to apply class counsel’s formulas. Under the

agreement, KSA’s duties were purely administrative.

They

included

disseminating

class

notice,

maintaining the settlement website, processing claim

forms, and distributing awards. (Id. §§ II(D), V(A);

see also Preliminary Approval Order §§ 8, 10.)

The Court’s orders required KSA to

calculate a fixed amount for each

personal injury payment, unlike the pro

rata amounts for relative shares of direct

payments.

The agreement authorized three types of

payments: “direct” payments to households,

payments for business losses, and payments for

personal injury claims. (Settlement Agreement §

XIII(C).) The agreement included diﬀerent allocation

terms for each type of payment.

Pet. App. 752

Appendix OO

Direct payments

For direct payments, the agreement stated

that each household with an approved claim would

receive “a portion of the remaining Settlement Fund

after payment of all approved Business Loss

Payments, Personal Injury Payments, the Fee

Award,” and so on. (Id. § XIII(C)(1)(a) (emphases

added).) Higher payments in other categories, such as

personal injury, would reduce the amount available

for direct payments. Thus, the amount available for

direct [*5*] payments could be known only after the

amounts of all other payments were known. There

would be no direct payments until after all appeals of

the settlement. (Id. § III(A).)

To divide the residual allocated for direct

payments, a “point grading system” would use

factors, such as length of displacement, to compare

households and ﬁnd each household’s “pro rata

amount.” (Id. § XIII(C)(1)(b) (emphasis added).) The

long-form notice to class members (an exhibit to the

agreement) accordingly explained that “[i]f, after

everyone sends in Claim Forms, the compensation

claims [and expenses] total more than $600 million,

… the [direct] payments will be reduced … on a pro

rata basis.” (Id. Ex. D at 3 (emphasis added).) And

class counsel’s motion for preliminary approval

explained that each direct payment would be in a

“pro rata amount.” (Mot. for Preliminary Approval,

Dkt. 452-1, at 21 (emphasis added).) “After the

claims deadline, the Settlement Administrator will

Pet. App. 753

Appendix OO

calculate the relative shares of damages for these

Class Members and distribute awards pro rata.” (Id.

at 22 (emphases added).)

Personal injury payments

The agreement did not apply those terms to

personal injury claims. First, it required KSA to

calculate and make personal injury payments before

all other payments—even before appeals of the

settlement. (Settlement Agreement § III(B).) Norfolk

Southern funded the personal injury payments

within 14 days of this Court ﬁnally approving the

settlement. (Id. § XII(F).)

Second, the agreement required KSA to

calculate personal injury payments without regard to

the amount of other types of payments. Personal

injury payments came ﬁrst. Then any “unallocated

monies for Personal Injury Payments w[ould] be

reallocated to the Direct Payment distribution.” (Id. §

XIII(C)(3)(i).)

Third, the agreement did not authorize KSA to

change any personal injury payment based on any

other class member’s payment or situation, or based

on the total personal injury claims. The amount of

each personal injury payment would be “determined

pursuant to an allocation [*6*] formula,” and KSA

was required to follow it. (Id. §§ XIII(C)(3)(g),

(D)(1)(a).) Unlike the terms governing direct

payments, the agreement and the order preliminarily

Pet. App. 754

Appendix OO

approving it did not allow KSA to compare claimants

to divide a ﬁxed amount of settlement money pro

rata or proportionally to determine each claimant’s

share.

Accordingly, neither class counsel’s motion for

preliminary approval nor the long-form notice to

class members ever said that personal injury

payments would be based on a pro rata division, a

proportional division, or relative shares of some ﬁxed

amount. (Id. Ex. D at 4. 1) Instead, the notice

explained that “the Settlement Administrator

w[ould] use objective, Court-approved criteria like

the nature of any physical injury and resulting

medical treatment, if any, to allocate funds to each

Eligible Personal Injury Settlement Class Member.”

(Id.)

Class counsel developed the allocation

plan and, to encourage more claims,

promised class members even higher

personal injury payments.

After this Court preliminarily approved the

settlement and agreement, class counsel began

The agreement mentioned pro rata payments just once in

connection with personal injury claims. It stated that if any

class members failed to redeem their personal injury checks,

the unredeemed amount “shall be paid to Settlement Class

Members who cashed their checks in a pro-rata distribution if

economically feasible.” (Settlement Agreement § XIII(D)(6).)

That provision has nothing to do with the dispute here.

Pet. App. 755

Appendix OO

developing their plan to allocate the settlement

funds. A key consideration was the parties’ desire to

boost the number of claims—especially personal

injury claims. Norfolk Southern wanted more

releases of personal injury claims to insulate itself

from more lawsuits, with the agreement providing

that only class members who made personal injury

claims would release those claims. (Id. § II(MM)(2);

id. Ex. E at 1.) Norfolk Southern was so concerned

about a low claims rate that the parties agreed it had

the “unilateral right” to terminate the settlement if

the claims rate was too low, as speciﬁed in a side

agreement with class counsel. (Id. § XI(C).) That side

agreement is nonpublic. (Id.)

[*7*] Terminating the settlement would

deprive class counsel of $162 million, so they too were

highly motivated to boost the claims rate. They even

agreed to “encourage” eligible class members “to seek

and obtain Personal Injury Payments by submitting

Claim Forms for Personal Injury Payments and [by

submitting] Personal Injury Releases.” (Id. §

XIII(C)(3)(e).)

In the long-form notice approved by this Court,

class counsel stated that the potential personal

injury payment for claimants who lived 0–2 miles

from the derailment was approximately $10,000; for

those 2–5 miles away, approximately $5,000; and for

those 5–10 miles away, approximately $1,000. (Id.

Ex. D at 4; Preliminary Approval Order § 10.) But

those base payments did not produce enough claims.

Pet. App. 756

Appendix OO

Class members began making claims at the

end of May 2024. On July 22, with one month left in

the claims period, class counsel wrote, “The low take

rate on PI [personal injury] is putting the settlement

in jeopardy.” (Ex. 2, Angela Ferrante Decl., ¶ 36, Ex.

2-B, B. Graham email, at 1.) Within days, class

counsel dramatically increased the base amount of

personal injury payments, to $25,000. (Ferrante Decl.

¶ 37.)

KSA Chief Operating Oﬃcer Angela Ferrante

was at the in-person settlement intake center at that

time. (Id. ¶¶ 36-38.) Around July 24, she told class

counsel that the increase could be a bad idea, given

that no one knew how many claims would be ﬁled.

(Id. ¶¶ 38-39.) But class counsel told her that the

parties had thoroughly evaluated this revised

approach and “checked [it] backwards and forwards,”

so KSA should plan on base payments of $25,000. (Id.

¶ 40.)

Next, class counsel made sure class members

knew about the increase. They circulated ﬂyers titled

“Message from Court-Appointed Counsel.” (Id., Ex. 2C, Flyer.) The ﬂyers said that “a greater per person

Personal Injury Payment will be available.” (Id.)

Then, on August 1, with three weeks left in the

claims period, class counsel held a town hall to

encourage class members to make claims. A partner

from a class counsel ﬁrm explained [*8*] that $10,000

had been “intentionally conservative,” and class

Pet. App. 757

Appendix OO

counsel was “able to revisit those payments” and

“announce that those payments are now … going

to be $25,000 per person.” (Entire Class Action

Attorney Town Hall 8-1-24, at 41:20‑42:03,

YOUTUBE

(Aug.

2024),

youtube.com/watch?v=OoiAgy1TLpM

(emphasis

added).) “We’re now at the point where, again, we’re

able to revise those personal injury payments up

to the tune of $25,000 per person in East

Palestine.” (Id. at 44:37-45:51 (emphasis added).)

No one at the town hall told class members

that rather than receive a base of $25,000 per person,

claimants would receive only a pro rata or relative

share of some limited fund that class counsel set

aside. In fact, the partner continued, “As more

people participate and we get ﬁrmer data about

those numbers, these payment values could

potentially rise as well.” (Id. at 42:11-42:19

(emphases added).) If claimants were indeed going to

receive a pro rata or proportional share of a limited

fund, more claimants could never raise the payments.

All this had the desired eﬀect: The claims rate

suddenly spiked higher. Up to July 24 (one week

before the town hall), class members made around

2,500 personal injury claims. (Ferrante Decl. ¶ 36.)

Then, during the two and a half weeks from August 5

(a few days after the town hall) to the end of the

claims period on August 22, the number of known

personal injury claims spiked well over 300 percent.

(Id. ¶ 47.) Timely claims continued to be processed

Pet. App. 758

Appendix OO

after August 22 and ultimately reached over 30,000.

Class members filed claims because class counsel

promised $25,000 base payments.

The overall rate for all claims was roughly

three times higher than in a typical class action case.

(S. Fenwick Final Approval Decl., Dkt. 518-7, ¶ 17.)

At the fairness hearing, this Court stated that it was

“pleased that the class members’ reception of the

agreement has been overwhelming.” (Fairness Hr’g

Tr., Dkt. 553, at 115:8-9.)

[*9*]

Class counsel set a “preliminary”

allocation

for all

personal

injury

payments.

After the claims period ended, class counsel

ﬁnished their allocation plan. They sent it to KSA on

August 28. (Ex. 1, Scott Fenwick Decl., ¶ 19; see also

id. Ex. 1-F.) On August 29, one week after the claims

period ended, KSA submitted to class counsel and

Norfolk Southern the claims report that the

settlement agreement required. (Mot. Ex. G, Dkt.

1012-7.) The report explains the number of claims

that KSA received and states that “the ﬁnal value

assigned” to all personal injury claims “is currently

estimated not to exceed $130 million.” (Id. ¶ 2 (20 of

25).)

Class counsel’s contempt motion uses that

report to falsely accuse KSA of valuing the personal

injury claims at $130 million. (Mot. at 7.) But that

Pet. App. 759

Appendix OO

ﬁgure came from class counsel and Norfolk

Southern—not KSA. Fenwick Decl. ¶ 28; Ex. 1-H.

KSA told class counsel that the report would

include “only … the count of direct claims and PI

[personal injury] claims in our possession.” (Ferrante

Decl. ¶ 51; Fenwick Decl. Ex. 1-I at 2.) It would not

include claims that arrived later, and “[w]e hope it is

evident that we cannot have every claim reviewed

and deﬁciencies identiﬁed and cured by this date.”

(Id.) Thus, class counsel knew that KSA’s report

could not provide the total number of personal injury

claims or the size of all personal injury claims

combined.

The same day the report was due, class counsel

told KSA that “the PI [ personal injury] allocation

should be $130mm following discussion with NS

[Norfolk Southern] this morning.” (Fenwick Decl. ¶

28; see also id. Ex. 1-H at 1 (emphasis added).) The

parties decided on $130 million. KSA had nothing to

do with it.

Class counsel’s allocation plan required

KSA to calculate fixed personal injury

payments—not a pro rata division of

relative shares.

Another week later, class counsel moved this

Court to approve their “Plan of Distribution.” (Mot.

for Final Approval, Dkt. 519-1.) Their motion states

that KSA will “verify [*10*] the Class Member’s

Pet. App. 760

Appendix OO

eligibility for the [personal injury payment] and

calculate their award using the formula established

by the Plan of Distribution.” (Id. at 5.)

The motion explains that the plan “sets a

preliminary allotment of the net Settlement fund to

each of the three programs contemplated under the

Settlement.” (Id. at 7.) The plan states that the

“preliminary” allocation for all personal injury

payments was $120 million (not $130 million). (Ex. 1Z, Plan of Distribution (corrected version), at 1.) But

the “ﬁnal” allocation for all personal injury payments

would be determined by “[t]he number of points

calculated” for all those payments combined. (Id. at

7.) The total points in all claims, at $250 per point

(the $25,000 base payment divided by the base of 100

points), would determine the ﬁnal amount. The ﬁnal

amount was not a predetermined amount to be split

pro rata.

The plan explained that “preliminary

allotments are expected to pay all submitted claims

fairly,” but there were “two additional safeguards for

just compensation” in case there were too many

claims. (Mot. for Approval at 7, Dkt. 519-1.) First,

there were “various ‘pour over’ or ‘waterfall’

provisions, which allow undistributed funds from one

program to be moved into another as the need arises

until all funds are disbursed.” (Id. at 7-8.) “Second,

the Plan of Distribution establishes a Class-wide

holdback of $10,000,000, designed to reinforce any

program that may need to be re-capitalized for any

Pet. App. 761

Appendix OO

reason.” (Id. at 8.) These safeguards “retain[ed] the

ﬂexibility to ensure the entire Settlement Fund is

disbursed in accordance with any changes that might

occur as claims are continuously processed and

evaluated.” (Id. (emphasis added).)

In a critical provision, the plan directs KSA—

which played no role in developing this approach—to

calculate each personal injury payment:

All eligible class members start with a

“base” of 100 points, which is intended to

reﬂect the “average” individual living in the

Village of East Palestine at the time of the

Derailment. The “base” of 100 points is

equivalent to one $25,000 share of the

[personal injury] program. The “base

case” is therefore entitled to $25,000

per [*11*] person, with [qualiﬁed

claimants’] payments increasing or

decreasing from the “base case”

depending on the factors presented in

their claim forms.

(Plan of Distribution at 7 (emphasis added).) The

factors “are converted to multipliers that reﬂect

enhancements or detractions based on severity or

degree of impact.” (Id.)

Thus, the plan states that each qualifying

claimant is “entitled” to $25,000, adjusted only by the

factors presented in his or her own claim form. The

Pet. App. 762

Appendix OO

plan does not allow any class member’s personal

injury payment to be aﬀected in any way by the

number of claimants, the size of their claims, the

total number of points, or a pro rata or proportional

distribution.

There is more. The plan gave ﬁve illustrations

of how to calculate personal injury payments. None

mentions other claimants, the size of their claims,

the total number of points, or a pro rata or

proportional distribution. (Id. at 9-10. 2) Each

calculates a ﬁxed amount starting with $25,000 and

adjusting it up or down based on factors such as

distance from the derailment. (Id.)

At the fairness hearing, class counsel

conﬁrmed that is how the plan works: “Again, all

claimants start with a 100 base of points. That’s on

an individual basis, and it represents an individual

$25,000 share of what’s been allotted to that

After the illustrations, the plan gave two examples of

reductions to awards based on amounts that Norfolk Southern

previously paid to class members. Those examples hypothesized

a class member whose medical treatment was valued at ﬁve

points. (Plan of Distribution at 10‑11.) Footnotes cautioned that

the examples were “illustrative” because the actual “[p]oint

value” for any real class member’s medical treatment would

have “to be determined” based on the treatment(s) the class

member received. (Id. at 10, 11 nn. 9, 10.) The examples had

nothing to do with the $250 per point value that the plan

required KSA to use when calculating personal injury

payments, which is why class counsel’s contempt motion did not

mention those footnotes.

Pet. App. 763

Appendix OO

supplemental program.” (Fairness Hr’g Tr. at 77:3-6.)

A “$25,000 share” is not an as-yet-unknown pro rata

or proportional share.

This Court “approve[d] and adopt[ed] the

Plan.” (Order Approving Plan, Dkt. 555, § 13.) The

order “direct[ed] the settlement administrator,

[KSA], to implement the Plan according to [*12*]

its terms and conditions.” (Id. (emphasis added).)

The order also authorized the parties—but not KSA—

to amend or modify the plan without additional

Court approval. (Id. § 15.)

On the same day this Court approved and

adopted the plan, this Court also gave ﬁnal approval

to the settlement. (Final Approval Order, Dkt. 557, §

7.) Under that order, the settlement agreement has

“the full force of an order of the Court.” (Id. § 17.)

This Court also approved expenses and

attorneys’ fees. (Fee & Expense Order, Dkt. 556.) In

that order, the Court explained that the parties

worked with KSA, “a respected notice provider and

settlement administrator.” (Id. at 7.) The order

explained that KSA (a) sent “thousands of individual

notices by mail and thousands more by email”; (b)

augmented “this direct eﬀort with supplemental

forms of notice, including a substantial digital notice

eﬀort, which included a targeted state-of-the-art

social media outreach campaign”; (c) opened “a brickand-mortar claims center” the week of June 3, 2024,

that was “originally open ﬁve days a week—and then

Pet. App. 764

Appendix OO

extended to six days a week with expanded hours in

light of the extraordinary interest and participation

in the settlement”; (d) staﬀed the claims center with

KSA employees, who answered questions and

assisted class members; (e) opened a second claims

center on July 31, 2024; and (f ) provided a call center

that “took at least 48,031 calls.” (Id. at 8-9.)

When class counsel directed KSA to begin

making personal injury payments, they

knew that KSA was still evaluating

claims on a rolling basis.

Soon after this Court approved the settlement,

several objectors appealed. (Notice of Appeal, Dkt.

558.) With appeals pending, the settlement

agreement forbade any direct payments or payments

for business losses, but it required personal injury

payments to begin within 30 days of ﬁnal approval—

without ever requiring KSA to ﬁrst calculate the

total number of points. (Settlement Agreement §

XIII(D).) On October 2, KSA responded to class

counsel:

Our focus is on PI [personal injury]

Payments. Here is what will transpire this

month and into November …:

[*13*]

•

We will begin sending out PI payment

amount letters this month.

•

PI Claimants will have 10 days … to

Pet. App. 765

Appendix OO

challenge their calculated payment amount.

•

If no challenge, we can proceed with the

payment. Based on this process, I would

anticipate PI payments will begin to go out

in mid to late November. As we discussed,

this satisﬁes the requirements under the

Settlement, as PI payments will begin by

year end (as subject to claim validation).

•

If a Claimant challenges their payment, the

steps in the attached will be followed.

(Ex. 2-F, Oct. 2, 2024, email, at 1.)

A Court-approved supplement to the plan

explained the process for a class member to challenge

an award. (Dkt. 525.) A single challenge could

involve reconsideration by KSA, an appeal to the

special master, and an appeal to the Court. (Id. at 13.) KSA could not ﬁnish calculating a particular

claimant’s points and ﬁnal award until that process

concluded. (Id. at 1.) Under the supplement’s time

frames, it could easily take months.

With the need for KSA to process each of the

tens of thousands of claims, announce each award to

its recipient, and wait for all challenges to be

resolved, it was impossible to know the total number

of points at the outset. (Ferrante Decl. ¶¶ 48-52.)

Class counsel never directed KSA to ﬁrst calculate

the total number of points, yet the payments had to

Pet. App. 766

Appendix OO

begin. (Id. ¶ 59.) Class counsel repeatedly

emphasized to KSA that personal injury payments

had to go out as soon as possible because the

derailment occurred more than a year earlier. (Id.)

Class counsel knew that KSA was processing

personal injury claims in batches over time, not all at

once before payments began. A KSA declaration,

which class counsel ﬁled in support of ﬁnal approval,

stated that KSA “continues to process claims

received.” (S. Fenwick Final Approval Decl. ¶ 17.)

The settlement’s “claims rate [was] almost three

times what is typical in class action administrations”

(id.), so this could not help but take a long time. (It

would also take a lot of extra time because here,

unlike in most cases, most claim forms were ﬁled on

paper instead of electronically, so their data had to

be entered manually into a computer. (Ferrante

Decl. ¶ 66; Fenwick Decl. ¶ 51.)) To help class

members cure defects in their forms, KSA [*14*]

planned to email and mail deﬁciency letters, call

class members, and reopen the settlement center on

September 17—for “several months.” (S. Fenwick

Final Approval Decl. ¶ 20 (emphasis added).) Class

counsel made the same point in their motion for

approval:

“Importantly,

the

claims

process

contemplates outreach … to ensure that deﬁcient or

incomplete claims are cured and receive appropriate

consideration. That outreach has been actively

ongoing and is expected to continue well after Final

Approval.” (Mot. for Approval at 4 n.2 (emphasis

added).)

Pet. App. 767

Appendix OO

No one could know the number of valid claims

or points until all those eﬀorts—and class member

challenges to awards—were ﬁnished. Yet class

counsel insisted that payments begin in early

December 2024, when they knew that information

was unknown. (Ferrante Decl. ¶¶ 73-75, 89, 95; id.

Ex. 2-L at 1-2.) They knew KSA was processing

claims on a rolling basis, not all at once at the

beginning. (Ferrante Decl. ¶¶ 64-103; Fenwick Decl.

¶¶ 40-41.) As just one of many examples proving this,

on December 21, 2024—after the ﬁrst round of

payments—KSA sent class counsel a draft press

release to update the community. (Ex. 2-M, draft

press release.) It explained that “[t]he [KSA] team is

working as fast as possible to process Personal Injury

Claims.” (Id. at 3.) Class counsel knew that work was

not ﬁnished.

KSA’s March 2025 report stated that KSA had,

at that point, processed just 12,000 of the 31,125

personal injury claims. (Mot. Exs. J, K; Ex. 1-R at 3.)

A later email shows that class counsel knew KSA

was continuing to process personal injury claims in

April and May 2025. (Ex. 2-P, KSA emails, at 1, 3;

Ex. 1-S at 1.) Of course, they knew payments began

in December.

Class

counsel

approved

KSA

calculating personal injury payments

using the $25,000 base payment formula

from the plan of distribution.

Pet. App. 768

Appendix OO

Contrary to their made-up litigation position,

class counsel was also aware that KSA’s payment

calculations were not based on a pro rata or

proportional division. For example, on October 1,

2024, class counsel and KSA reviewed “sample calcs”

so that KSA could “conﬁrm we come to an agreement

on the correct numbers.” (Fenwick Decl. ¶ 41; Ex 1-K

at 1.) The “sample [*15*] calcs” all started with base

payments of 100 points valued at $25,000. (Id.) Class

counsel conﬁrmed these calculations in writing to

KSA. (Id. (“Yes … If you apply the correct multipliers

(which [the Judge] has approved) then you get the

numbers you noted.”).) That is only one of many

examples. (Fenwick Decl. ¶¶ 41, 43; see also, e.g., id.

Ex. 1-L, 1-N, 1-P; Ferrante Decl. ¶¶ 64-103.) In

addition, before each payment went out, class

counsel and Norfolk Southern reviewed it, and they

could see it used $25,000 base payments (and had

nothing to do with a total number of points for all

personal injury claims). (Ex. 2-H; see also Ferrante

Decl. ¶¶ 82-98.) That practice continued until midJanuary 2025, when they abandoned their reviews to

speed up the delivery of payments. (Ferrante Decl.

¶¶ 95-96.)

KSA discovered and told class counsel

that personal injury payments might

exceed their “preliminary” allocation for

those payments.

As KSA continued to process personal injury

claims, it appeared that total payments could

Pet. App. 769

Appendix OO

eventually exceed class counsel’s “preliminary”

allotment for them. Class counsel’s contempt motion

(at 10-12) tries to take credit for discovering this issue

in early May 2025, but KSA told class counsel about

it repeatedly starting in late March, soon after KSA’s

March 25 report. (Fenwick Decl. ¶¶ 44-48.) Each

time, class counsel directed KSA to the plan’s

“safeguards,” including the pour-over provisions. (Id.

¶ 46.)

But then, on May 12, class counsel asked KSA

to join a call to discuss “overpayment errors” and

requested a report of all payments made. (Ferrante

Decl. ¶ 105.) On the call, class counsel accused KSA

of disobeying the plan by not making pro rata

payments or by otherwise underpaying class

members. (Id.) Class counsel asserted that this

resulted in the personal injury fund allotment being

exceeded by $17 million, which KSA itself needed to

pay. (Id.)

KSA learned that it was terminated, with

contempt proceedings to begin.

On June 11, KSA received the Court’s order

terminating its appointment as administrator. (Dkt.

979.) The order states that class counsel requested it.

(Id. at 1.) KSA had not been aware of, [*16*] or given

the opportunity to respond to, that request. The

request does not appear on the Court’s docket. The

evidentiary support for the request was a declaration

from class counsel Seth Katz, which does not bear a

Pet. App. 770

Appendix OO

docket number (and was not given to KSA until

October 22, 2025).

After learning about the order, KSA ﬁled a

motion asking for leave to be heard on it, with KSA’s

response to the order attached as an exhibit. (Dkt.

983.) The Court denied the motion and struck the

response from the docket. (Dkt. 984.) The Court

stated that KSA would be allowed to explain its

position when responding to an anticipated motion

for contempt. (Id. at 1.)

The order terminating KSA directed class

counsel to retain an auditor and to submit to the

Court the auditor’s report about “the nature, scope,

and ﬁnancial ramiﬁcations of any miscalculation

errors that may have been made” by KSA. (Order,

Dkt. 979, § 12.) After the report was done, class

counsel would be allowed to ﬁle a motion to show

cause. (Order, Dkt. 984, at 2.) The Court later

granted class counsel permission to move for

contempt before the auditor completed its report but

required the motion to be supported by a declaration

from Epiq “detailing its ﬁndings of the various ways

that Kroll violated the Court’s prior Order (ECF No.

555 [the order approving the plan]) in administering

the settlement.” (Order, Dkt. 1004, at 4.)

Epiq’s declaration asserts that personal injury

“[p]ayments to Class Members here require the

administrator to determine the accurate number of

points available to all eligible class members, from

Pet. App. 771

Appendix OO

which we can determine the value of a single point.

… [W]e would not begin distributing full payments”

until all payments (or their maximum total) are

known. (Mot. Ex. N ¶ 5.) The declaration never

identiﬁes any provision in any order requiring pro

rata proportional payments. The declaration ignores

the unanimous contrary statements and illustrations

in the settlement agreement and plan.

During discovery, KSA discovered that those

statements appear in Epiq’s declaration only because

class counsel put them there. Epiq’s ﬁrst draft

included examples of alleged [*17*] overpayments.

The calculations naturally included what the

declarant, Michael O’Connor, asserted were the

proper payment amounts—starting with base

payments of $25,000. (Ex. 3, EPIQ000440 O’Connor

Decl. draft, ¶¶ 50, 52-53, 56.) Upon seeing this, class

counsel told him that he “[s]hould NOT put a value

in for Epiq … b/c Epiq hasn’t computed value of a

point.” (Ex. 4, EPIQ000717 O’Connor Decl. draft,

cmt. SK7.) Every time that O’Connor stated the

proper amount of a payment, Katz reiterated, “Epiq

should NOT be assigning a value or diﬀerential.” (Id.

cmts. SK8, SK9, SK10.) In the next drafts, O’Connor

followed Katz’s instructions. (Ex. 5, EPIQ000068

O’Connor Decl. draft, cmt. MO13; Ex. 5A, at 1 (noting

addition of footnote), EPIQ0001356 O’Connor Decl.

draft).

Then, on the very same day the declaration

was signed and ﬁled, class counsel Beth Graham

Pet. App. 772

Appendix OO

texted O’Connor: “Hey Michael. Do you have a

minute for me? We want you to add a single line to

your declaration re: Kroll’s failure to calculate the

value of a point before sending checks out being a

fundamental misstep[.] Claims admin 101[.]” (Ex. 6,

EPIQ001642.) O’Connor responded: “Sure thing[.]

Call me when ready!” (Id.) O’Connor then emailed,

“Beth just called me with a material addition to

make.” (Ex. 7, EPIQ000544.)

Later that day, O’Connor emailed the signed

declaration to class counsel, explaining that he added

the statements “[a]t Beth’s request.” (Ex. 8,

EPIQ000326.) O’Connor testiﬁed that was what

happened. (Ex. 9, O’Connor Tr., at 39:20-41:18, 102:2106:7.) He admitted that when adding those

statements, he did not consider the language of the

plan, the motion for ﬁnal approval, or what class

counsel told class members at the town hall. (Id. at

106:19-107:10.)

ARGUMENT

Class counsel must prove with clear

and convincing evidence that KSA fully

understood the meaning of a definite

and specific court order but ignored it.

“Contempt is a measure of last resort, not ﬁrst

resort.” Gascho v. Glob. Fitness Holdings, 875 F.3d

795, 799 (6th Cir. 2017). To “guard against arbitrary

exercises of the [*18*] contempt power,” the “party

Pet. App. 773

Appendix OO

that seeks civil contempt sanctions must

demonstrate by clear and convincing evidence that

the opposing party knowingly violated a deﬁnite and

speciﬁc order of the court.” Id. at 800 (cleaned up).

Contempt is “reserved for those who fully understand

the meaning of a court order and yet choose to ignore

its mandate.” Id. (cleaned up). Thus, “civil contempt

‘should not be resorted to where there is [a] fair

ground of doubt as to the wrongfulness of the

defendant’s conduct.’” Taggart v. Lorenzen, 587 U.S.

554, 561 (2019) (quoting Cal. Artiﬁcial Stone Paving

v. Molitor, 113 U.S. 609, 618 (1885)).

The Sixth Circuit emphasizes that “the burden

of showing that an order is deﬁnite and speciﬁc is

heavy” and “demanding.” Gascho, 875 F.3d at 800

(cleaned up). It “should not be confused with the less

stringent, proof by a preponderance of the evidence.”

Elec. Workers Pension Tr. Fund v. Gary’s Elec. Serv.,

340 F.3d 373, 379 (6th Cir. 2003). Courts must read

any ambiguity “in favor of the party charged with

contempt” and may not “hold a party in contempt

unless that party was disobeying a clear and

unequivocal court command.” Gascho, 875 F.3d at

800; see also id. at 801 (a contempt “judgment must

set forth in speciﬁc detail an unequivocal command”

(cleaned up)).

II.

KSA followed the Court’s orders.

The orders required KSA to

calculate each payment by starting with

Pet. App. 774

Appendix OO

$25,000 and adjusting it based only on

factors specific to each claim.

Three orders address KSA’s responsibility to

make personal injury payments. All required KSA to

use class counsel’s formula, which required KSA to

calculate each payment by starting with $25,000 and

adjusting it based solely on factors speciﬁc to each

claim. No order allowed KSA to give claimants a pro

rata or proportional share of some set fund.

The ﬁrst and second orders approved and

adopted the settlement agreement (Dkts. 458, 557),

which required KSA to follow class counsel’s

formulas for payments to class members. When

explaining the distinct types of payments, the

agreement stated that each direct payment [*19*]

would be a “pro rata amount” that resulted from

dividing the total available amount. (Settlement

Agreement § XIII(C)(1).) To determine each pro rata

share, KSA would have to compare the severity of

each claim in the context of all other claims. As class

counsel’s motion for preliminary approval stated,

“the Settlement Administrator will calculate the

relative shares of damages for these [direct

payment] Class Members and distribute awards pro

rata” (Mot. for Preliminary Approval at 22

(emphases added).)

For personal injury payments, however, the

agreement said nothing of the sort. It never

authorized pro rata, proportional, or relative share

Pet. App. 775

Appendix OO

awards. As the long-form notice stated, KSA “will use

objective, Court-approved criteria like the nature of

any physical injury and resulting medical treatment,

if any, to allocate funds to each Eligible Personal

Injury Settlement Class Member.” (Settlement

Agreement Ex. D at 4.) Neither the orders nor the

agreement allowed KSA to compare claimants and

divide a fund into shares.

The third order approved class counsel’s plan

and required KSA to “implement the Plan according

to its terms and conditions.” (Order Approving Plan §

13). For personal injury payments, the plan

explained that the calculation would start with an

“average” claimant, deemed to have a “base” of 100

points worth $25,000, which would be adjusted based

solely on factors speciﬁc to each claim, such as

distance from the derailment. (Plan of Distribution

at 7.) The plan states that “100 points is equivalent

to a $25,000 share.” (Id.) Thus, each point was worth

$250. Claimants with 100 points are “therefore

entitled to $25,000 per person, with … payments

increasing or decreasing from the ‘base case’

depending on the factors presented in their claim

forms.” (Id. (emphasis added).)

The plan did not allow KSA to assign pro

rata, proportional, or relative shares in which, for

example, a class member with 100 points received

anything other than $25,000. Nor did the plan allow

KSA to compare claims when calculating payments.

It only allowed KSA to evaluate [*20*] each

Pet. App. 776

Appendix OO

claimant’s individual factors, from his or her claim

form, and adjust the payment upward or downward

from $25,000 based on the number of points. That is

what KSA did.

pro

rata

proportional

approach would have violated the

Court’s orders.

Class counsel contends that KSA violated the

plan by starting each claimant “with a ﬁxed sum of

$25,000 that would then be adjusted up or down

based on various factors without regard for any eﬀect

on other claims or the limits of the fund.” (Mot. at 11.)

They argue that KSA should have “us[ed] points to

calculate proportional shares” and used those shares

to divide whatever total for personal injury claims

that they selected. (Id.)

That approach would violate the Court’s

orders adopting and requiring KSA to follow the

settlement agreement and the plan. The orders did

not allow pro rata, proportional, or relative shares.

The orders made each personal injury claimant

“entitled” to the ﬁxed amount of $25,000, as adjusted

only by factors speciﬁc to that person’s own claim.

(Order Approving Plan § 13; Plan of Distribution at

7.) If KSA had followed the approach that class

counsel now advocates, which would have required

KSA to reduce each personal injury payment,

claimants would have accused KSA of violating the

Court’s orders.

Pet. App. 777

Appendix OO

Class counsel’s new approach would also have

made nonsense of other provisions of the agreement

and plan. Under that new approach, they would have

set aside a ﬁxed amount as a fund for all personal

injury payments, and KSA would have assigned each

claimant a proportional share. (Mot. at 11.) If KSA

had followed that approach, it would have been

impossible for any money to remain in the personal

injury fund after all personal injury payments were

made. The proportional shares would have, by

deﬁnition, totaled 100 percent. Yet the settlement

agreement and plan both state that funds left over

from personal injury claims will pour over into the

amount for direct payments. (Settlement Agreement

[*21*] § XIII(C)(3)(i); Plan of Distribution at 1.) That

could happen only if claimants received ﬁxed

payments that did not total 100 percent of the money

that class counsel preliminarily allocated.

Class counsel also knew that KSA was basing

personal injury payments on the $25,000 ﬁgure, not

on proportional or relative shares. They even told

class members, at the town hall, that “those

payments are now … going to be $25,000 per

person.” (Town Hall 8-1-24, at 41:45-42:03,

YOUTUBE

(Aug.

2024),

youtube.com/watch?v=OoiAgy1TLpM

(emphasis

added).)

As Epiq’s declaration explains, a proportional

or relative share approach would have required KSA

Pet. App. 778

Appendix OO

to determine the total number of points before

making any payments. (Epiq Decl. ¶ 5.) Yet class

counsel insisted that KSA begin making payments

before processing and validating all claims—and

before all challenges to payment determinations were

ﬁnished. (Ferrante Decl. ¶¶ 73-75, 92-93.) Payments

began in November 2024, and class counsel

frequently reviewed sample calculations and batches

of the actual payments and saw that they had

nothing to do with proportional shares or the total

number of points. (Id. ¶¶ 82-86.) A few weeks after

the ﬁrst round of payments, KSA told class counsel

that it was still “working as fast as possible to

process Personal Injury claims.” (Ex. 2-M at 3.) In

March 2025, KSA told class counsel that it had

processed 12,000 of the 31,125 personal injury

claims. (Ex. 1-R at 3.) KSA provided similar updates

in April. (E.g., Ex. 1-S at 1 (“[W]e are working on

calculations for approximately 13,000 valid class

members ….”); see also Ex. 2-O; Ex. 2-P.) It is

reprehensible for class counsel to move for contempt

against KSA on the ground that court orders

required KSA to use a proportional approach from

the start that class counsel always knew KSA was

not using.

Epiq’s declaration also provides illustrations of

personal injury payments that contradict the plan.

For example, Epiq gives this example:

[*22*]

Pet. App. 779

Appendix OO

(Epiq Decl. ¶ 38.) The footnote after “To Be

Determined” (“TBD”) says that “Epiq cannot yet

determine what this claimant’s correct payment

should have been because we do not know the value

of a point,” because Epiq has not yet processed and

veriﬁed all personal injury claims to ﬁnd the total

number of points. (Id. ¶ 38 n.5.)

The plan’s illustrations, however, calculate

each payment without any reference to other claims

or the total number of points. For example:

(Plan of Distribution at 9.) This hypothetical

claimant had 90 points, so with the ﬁxed value of

$250 per point, the payment is $22,500. This

illustration—like every personal injury illustration in

the plan—shows that the required calculation was an

adjustment from $25,000. (Id. at 9-10.) It was not a

calculation of a proportional or relative share using

the total number of points.

Discovery revealed that Epiq’s original draft

calculated and showed examples of actual payments.

Pet. App. 780

Appendix OO

(Ex. 3, EPIQ000440.) But, at class counsel’s

insistence, Epiq removed those examples and added

language to the declaration about the need to ﬁrst

calculate the total number of points. (Ex. 4, Draft

Decl., ¶ 35 and Katz Comment, Ex. 5, EPIQ000068;

Ex. 5A at EPIQ0001356, Draft Declaration at n.5.)

The only fair reading of the Court’s orders,

settlement agreement, and plan shows that KSA

followed them. But, as another court explained, even

if there were grounds for a disagreement about the

meaning of an order, it “could have easily been

addressed by asking the court itself to clarify the

issue. Escalating the disagreement into a contempt

proceeding only [*23*] draws into question [the

movant’s] own good faith and judgment.” Davis v.

Detroit Downtown Dev. Auth., 2020 WL 3097262, at

*3 (E.D. Mich.). So too here.

Class counsel cite no cases

supporting contempt here.

None of the cases that class counsel cite will

support a ﬁnding that KSA fully understood and

chose to ignore a court order. Many do not even

involve civil contempt proceedings. None involves a

class

action

administrator,

much

less

administrator that followed the court’s orders and

class counsel’s directions.

For example, class counsel’s motion relies

heavily on Electrical Workers, 340 F.3d 373. There,

Pet. App. 781

Appendix OO

an order required the defendant to pay the plaintiﬀs,

and the defendant’s oﬃcer admitted “that he knew of

the court’s order yet failed to observe it.” Id. at 382.

Rather than pay the money, he tripled his own

salary, used company money to pay for personal

luxury items, directed the company to pay all

creditors other than the plaintiﬀs, and so on. Id. at

377‑78. That case says nothing about KSA or its

conduct here.

Class counsel’s motion also relies heavily on In

re Columbia Gas Cases, No. 1877CV01343G (Mass.

Super. Ct.), a case in which KSA was the

administrator. Some class counsel here were also

class counsel there—so they know better. The order

in Columbia Gas stated that “after all lump sum

claims have been submitted and points allotted, the

$80 million fund will be divided by the total points

for all lump sum claimants and a dollar value per

point will be established.” (Ex. 1-J at 10.) That was,

indeed, a provision requiring a proportional or

relative share calculation. But the orders here say

nothing of the sort.

Finally, class counsel rely on McCormick v.

Adtalem Glob. Education, 2018-CH-04872 (Ill. Cir.

Ct.), which they call the Devry University Settlement.

That is one of the 3,000 or so class actions that KSA

has administered. There, KSA was in the process of

mailing checks when it discovered some errors. (Ex.

10, KSA Emergency Mot. for Status Conference, at

1.) [*24*] Class counsel there told KSA to let the class

Pet. App. 782

Appendix OO

members cash the erroneous checks, so KSA asked

the court for guidance. (Id. at 2-3.) Class counsel

retaliated by ﬁling a motion to suspend KSA. After a

status conference, the court directed class counsel

and KSA to work out the issues, which led to the

withdrawal of both motions, KSA paying limited costs

and fees associated with the errors, and another

administrator handling the rest of the case. (Ex. 11,

Stipulation & Order Resolving Issues; Ex. 12, Agreed

Order Withdrawing Mots.) The court did not hold

KSA in contempt, sanction KSA, ﬁnd that KSA did

anything wrong, or make any other ﬁnding of

conceivable relevance here. (Ex. 13, Stipulated Order

Dismissing KSA.)

III.

Inadvertent calculation errors—which

KSA discovered, disclosed, and offered

to repay—do not show that KSA chose

to ignore a court order.

Apart from the issue of proportional personal

injury payments, KSA discovered that it had

miscalculated the distances associated with the zip

codes of some class members, resulting in errors

when calculating their personal injury payments.

Almost all these errors resulted in overpayments to

class members, and KSA oﬀered to repay the

overpayments to preserve the settlement fund. Thus,

those errors beneﬁted some class members and could

not hurt any others.

mid-April,

when

reviewing

initial

Pet. App. 783

Appendix OO

calculations for a batch of claims, KSA found that the

calculations misapplied certain multipliers. (Fenwick

Decl. ¶ 53.) KSA held the payment letters for this

batch and ﬁxed the calculations. (Id. ¶ 54.) At the

time, KSA did not know to what extent (if at all) the

calculations in prior batches were incorrect, so it

needed to investigate. (Id. ¶ 55.) Throughout May,

class counsel and KSA discussed an incorrect

multiplier being used for claimants whose addresses

were in East Palestine but who neither resided in the

Village of East Palestine nor within two miles of the

derailment. (Id. ¶¶ 56-58; Ferrante Decl. ¶ 110.)

KSA determined that correct multipliers were

used for the ﬁrst batch of claims but some incorrect

multipliers were used for later batches of claims.

(Fenwick Decl. ¶ 58.) The change resulted from a

KSA employee misunderstanding a December 2024

conversation between the [*25*] parties, during

which counsel for Norfolk Southern asked why

payments to claimants with East Palestine addresses

were “so low.” (Id. ¶ 59.) The employee mistakenly—

but in good faith—understood the parties to be

exempting East Palestine addresses from distance

and direction multipliers. (Id. ¶ 60.) The employee

changed the multipliers without following KSA’s

review and quality-assurance protocols. (Id. ¶ 61.)

As a result of the employee’s errors and failure

to follow the protocols, KSA terminated his

employment. KSA regrets the employee’s actions,

takes responsibility for them, again apologizes, and

Pet. App. 784

Appendix OO

again oﬀers to pay for them—an oﬀer that, for

reasons known only to them, class counsel

consistently rejected and fails to acknowledge.

KSA’s full review of past payments estimates

that the incorrect multipliers related to East

Palestine led to some claimants being overpaid a

total of roughly $4.5 million. (Id. ¶ 62.) During its

review, KSA also discovered multiplier errors related

to whether a claimant was exposed to chemicals and

had symptoms. (Id. ¶ 63.) This resulted in

overpayments of $292,400. (Id. ¶ 64.) KSA oﬀers to

compensate the settlement fund for those

overpayments 3 to make the fund whole, without

clawing back overpayments from class members who

received them.

It appears that KSA and class counsel

recognized the multiplier errors at roughly the same

time. They discussed those errors in early May, and

KSA informed class counsel that it was reviewing

past payments. (Id. ¶ 65; Ferrante Decl. ¶ 110; Mot.

Ex. Q, Dkt. 1012-17, at 1.) KSA never hid problems

with the multipliers.

KSA respectfully submits that inadvertent

3 KSA also estimates there were underpayments of $11,125

because of the incorrect East Palestine multipliers and $955,600

because of the incorrect chemical/symptom multipliers. Any

underpaid class members should of course receive full

payments. But those payments were never made from the

settlement fund, so there is nothing for KSA to compensate.

Pet. App. 785

Appendix OO

multiplier errors do not justify a ﬁnding of contempt.

There is no evidence at all—much less, clear and

convincing evidence—that KSA [*26*] knowingly

chose to ignore a court order. Gascho, 875 F.3d at

800. KSA intended to follow the Court’s orders and

believed in good faith it was following those orders.

KSA itself did not beneﬁt from any error; in fact, KSA

has oﬀered to pay for the errors. And by catching the

errors and oﬀering to reimburse all overpayments,

KSA has ensured that they hurt no class member

(while providing some class members with a

windfall). Even though some class members were

overpaid, the reimbursement will prevent any

overpayment from depleting the settlement fund.

To err is human, so no administration is

perfect even though perfection is always the goal.

Epiq

estimates

its

own

substantive

and

nonsubstantive error rate when adjudicating claims

at around 1 percent. (Epiq Decl. ¶ 9. 4) Epiq admitted

that “in any given year, Epiq is making hundreds if

not thousands of manual adjudication errors.” (Ex. 9,

4 Epiq, rather than quantifying any errors by KSA or reaching

any conclusions about them, simply provided 12 examples of

alleged errors. Most of those relate to KSA’s claim denials or

KSA’s early drafts of calculations, which had not yet gone

through KSA’s ﬁnal review. (Fenwick Decl. ¶¶ 82-86.) None

resulted in any payments at all, let alone overpayments, so they

did not deplete the settlement fund. If any denials were

erroneous, the challenge process will correct them, with no

harm to class members. (Ex. 9, O’Connor Tr., at 129:8-21, 130:515.)

Pet. App. 786

Appendix OO

O’Connor Tr. at 39:9-12.) Epiq also admitted that it

has never “seen a manual adjudication settlement

where there were zero errors.” (Id. at 37:8-11.) Epiq’s

review of the claim forms here even has its own

errors (Fenwick Decl. ¶ 88), so one can only wonder

whether Epiq will be class counsel’s next contempt

target.

The multiplier errors here cost the settlement

fund roughly $4.8 million in overpayments, which is

0.8 percent of the $600 million total. KSA thus

substantially complied with the plan, despite those

inadvertent mistakes, which should also prevent any

ﬁnding of contempt. De Simone v. VSL Pharms., 36

F.4th 518, 530 (4th Cir. 2022); PlayNation Play Sys. v.

Velex, 939 F.3d 1205, 1212-13 (11th Cir. 2019).

[*27*]

IV.

Class counsel cannot prove contempt

for any other issues.

KSA’s experience was neither the

subject of an order nor

misrepresented.

KSA cannot be in contempt for anything it said

about its experience in class action administration or

its experience administering proportional settlement

systems. Contempt requires a knowing violation of

an unequivocal court order. That is impossible here

because no court order required KSA to disclose its

experience. KSA’s statements about its experience all

Pet. App. 787

Appendix OO

predate the Court’s orders, so they cannot be

contemptuous. “[A] court cannot hold a party in

contempt retroactively.” Gascho, 875 F.3d at 802.

Class counsel is urging this Court to abuse its

discretion by “relying on pre-order conduct to hold

[KSA] in contempt.” Id.

In any event, class counsel identify no

misrepresentation. Their motion simply argues that

KSA did not correctly perform its duties. It is

undisputed that KSA does have ample experience

with all types of class action settlements—and knows

the diﬀerence between orders that require

proportional payments and orders that do not. The

orders here do not.

KSA fully cooperated when transferring

records to Epiq, without violating any

unequivocal command from the Court.

The order directed KSA to do six things to

facilitate the transfer of the administration to Epiq.

They are (1) confer with Epiq; (2) put Epiq’s contact

information on the settlement website and redirect

class member inquiries to Epiq; (3) give Epic control

over the settlement website, email, and phone

number; (4) give Epiq and class counsel an inventory

of all available data and administration-related

materials and case reports; (5) transfer those items

to Epiq; and (6) transfer control over the settlement

fund to Epiq. (Order, Dkt. 979, § 11.)

Pet. App. 788

Appendix OO

Class counsel’s motion does not identify a

knowing violation of any of those requirements.

Instead, the motion points to diﬀerences in how KSA

and Epiq kept records, as well as the steps KSA took

to address data problems that Epiq reported. That

shows KSA’s [*28*] diligence, not that KSA chose to

ignore a court order. There are no pending requests

from Epiq to KSA. (Ex. 9, O’Connor Tr., at 170:20-22.)

Working together, KSA and Epiq resolved every

issue. (Ex. 1-G.) At his deposition, Epiq’s O’Connor

conﬁrmed that KSA was cooperative and responsive

in addressing Epiq’s requests for information, and

Epiq received all the information it needed. (Ex. 9,

O’Connor Tr. at 171:17-24.)

The motion’s requests for relief are

improper.

As explained above, KSA should not be held in

contempt. For that reason, this Court should not

award any remedy. In any event, the remedies that

the motion requests are improper.

Class counsel cannot obtain

disgorgement of all amounts KSA

received.

The motion asks this Court to order KSA to

disgorge $9.5 million it received from the settlement

fund. To start, KSA did not receive $9.5 million. The

payments to KSA totaled around $8.95 million (and

around $750,000 was invoiced but not paid).

Pet. App. 789

Appendix OO

(Fenwick Decl. ¶ 70; see also id. Ex. 1-V (billing and

cost analysis).) Even with the correct ﬁgure in mind,

there are three reasons the Court should deny the

motion’s request.

First, it is undisputed that KSA did not intend

to violate a court order, misappropriate settlement

funds, or receive any beneﬁt from its inadvertent

multiplier errors. (Ex. 9, O’Connor Tr. at 43:12-16,

169:13-20.) KSA oﬀered to compensate the settlement

fund for the overpayments that it made in good faith.

(Fenwick Decl. ¶¶ 61, 64, 66‑67.) If there are

additional costs from Epiq getting up to speed and

performing recalculations, class counsel should ask

KSA for compensation for the fund for those

amounts, not disgorgement of every dollar KSA

received.

Second, “courts must deduct legitimate

expenses before ordering disgorgement” to avoid

imposing a punishment for civil contempt. Liu v.

SEC, 591 U.S. 71, 91‑92 (2020). “An equitable

disgorgement award seeks to deprive the wrongdoer

of his ill-gotten proﬁts,” not legitimate expenses.

Osborn v. Griﬃn, 865 F.3d 417, 452 (6th Cir. 2017)

(emphasis added). Here, around[*29*] $1.9 million of

the $8.95 million are legitimate out-of-pocket

expenses (not even including KSA’s full-timeemployee costs) that KSA paid for the beneﬁt of the

class. (Fenwick Decl. ¶ 77.) These expenses, which

the class had to incur without regard to any issues

identiﬁed in the motion, included items such as

Pet. App. 790

Appendix OO

paying for class notice, mailings, the settlement

centers (and security at them), and operating

telephone hotlines and websites. (Id. ¶¶ 72-73; see

also id. Ex. 1-V.) Class counsel cannot win

disgorgement of those unquestioned expenses.

Third, class counsel cannot win disgorgement

because Epiq must “completely redo” KSA’s work.

The motion does not question a great deal of KSA’s

work, such as work on class notice, media outreach,

correspondence with class members, gathering claim

forms, staﬃng in-person settlement centers, and

assisting class members with ﬁlling out forms and

correcting deﬁciencies. (Id. ¶¶ 71-76; Ex. 1-V.) KSA’s

fees for that work totaled roughly $5.7 million. (Id. ¶

74; Ex. 1-V.) The only work that Epiq claims to be

redoing is recalculating claims. KSA’s fees for that

work totaled roughly $3.25 million (id. ¶ 76), which is

the absolute maximum that a payment to

compensate the fund could cover.

One of the cases that class counsel cite makes

clear that KSA should not disgorge fees for valuable,

unquestioned work. In Cordoza v. Paciﬁc States Steel,

320 F.3d 989, 993 (9th Cir. 2003), the district court

assigned a special master to oversee the cleanup and

development of contaminated land to obtain funds to

pay class members. But the court determined that

the special master also billed for legal services for

himself and overcharged for his assistant’s services.

Id. at 994. The Ninth Circuit upheld the district

court’s order requiring disgorgement of those

Pet. App. 791

Appendix OO

amounts alone. The district court concluded that,

aside from the improper amounts, the special

master’s “early eﬀorts … warranted his keeping

much of the money he already received.” Id. at 1001.

Disgorgement applies only to ill-gotten proﬁts, so

KSA should not be required to disgorge fees and

expenses for unchallenged work that beneﬁted the

class.

[*30*]

Class counsel cannot force KSA to

discuss this case or others every

time a litigant considers hiring

KSA

for

class

administration

work.

Class counsel cite no case or other authority to

support punishing KSA by having this Court order it

to discuss “all prior instances where [KSA] has been

terminated, suspended or replaced as administrator”

whenever KSA serves or is considered to serve as an

administrator. (Mot. at 27.). That is because such an

order would be unlawful.

As the motion (at 21) admits, there are only

two legitimate purposes for civil contempt: (1)

coercing compliance with an order or (2)

compensating for a violation of an order. E.g., Elec.

Workers, 340 F.3d at 385. What class counsel

proposes is neither. Their proposal is not remedial

but punitive, so it “may not be imposed on someone

who has not been aﬀorded the protections that the

Pet. App. 792

Appendix OO

Constitution requires of criminal proceedings.” Int’l

Union, United Mine Workers of Am. v. Bagwell, 512

U.S. 821, 826 (1994) (cleaned up).

If litigants want to learn more about KSA’s

experience here or in other cases, they can ask KSA

or do their own research (with news articles about

the administrations in this case and Devry readily

available). But no civil contempt order may force its

subject to take actions other than complying with a

court order or compensating the complaining party

for violating one. Thus, no matter how this Court

rules on this motion, it should deny this request for

relief.

CONCLUSION

KSA respectfully asks this Court to deny class

counsel’s motion, deny any ﬁnding of contempt, and

order an end to this proceeding against KSA.

Dated: November 24, 2025

Respectfully submitted,

WINSTON & STRAWN LLP FLANNERY GEORGALIS, LLC

/s/ Scott M. Ahmad

CHRISTOPHER J. JOYCE

STEPHEN V. D’AMORE*

Ohio Bar No. 0086576

SCOTT M. AHMAD*

1375 E. 9th St., 30th Floor

CLEVELAND, OH 44114

SCOTT P. GLAUBERMAN*

35 W. WACKER DR.

Tel: (216) 466-0416

CHICAGO, IL 60601-9703 CJoyce@ﬂannergeorgalis.com

TEL: (312) 558-5600

Pet. App. 793

Appendix OO

FAX: (312) 558-5700

SDAMORE@WINSTON.COM

SAHMAD@WINSTON.COM

SGLAUBERMAN@WINSTON.COM

RACHAEL E. THOMPSON*

800 CAPITAL ST., SUITE 2400

HOUSTON, TX 77002-2925

TEL: (713) 651-2600

FAX: (713) 651-2700

RTHOMPSON@WINSTON.COM

* Pro hac vice

Counsel for Kroll Settlement Administration LLC

Pet. App. 794

Appendix OO

CERTIFICATE OF SERVICE

I hereby certify that, on November 24, 2025, a

copy of the foregoing was served on all parties of

record via the Court’s CM/ECF system, which will

provide electronic notice to all counsel of record.

/s/ Scott M. Ahmad

Scott M. Ahmad

Pet. App. 795

Appendix PP

LYNN KIZER, Plaintiff-Appellant,

ST. JUDE CHILDREN’S RESEARCH HOSPITAL,

Defendant-Appellee.

No. 24-5207

United States Court of Appeals, Sixth Circuit

November 18, 2024

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF TENNESSEE

Before: BATCHELDER, MOORE, and BUSH,

Circuit Judges.

OPINION

KAREN NELSON MOORE, CIRCUIT JUDGE

Lynn Kizer appeals from the district court’s

decision granting summary judgment in favor of her

employer, St. Jude Children’s Research Hospital, on

Kizer’s claims that, in violation of Title VII, St. Jude

failed to provide her with a religious accommodation.

Because we hold that St. Jude presented evidence

showing that accommodating Kizer would have

caused an undue hardship for St. Jude, and because

Pet. App. 796

Appendix PP

Kizer’s evidence to the contrary cannot support a

jury verdict in her favor, we AFFIRM the district

court’s grant of summary judgment in favor of St.

Jude.

I. BACKGROUND

In 2021, Lynn Kizer was employed by St. Jude

Children’s Research Hospital as an Electronic Health

Record (“EHR”) Applications Analyst assisting with

preparations for the hospital’s two-year-long

transition to a complex new EHR system known as

“Epic.” R. 1 (Compl. ¶ 4) (Page ID #1-2). That same

year, a vaccine for COVID-19 became available.

Because St. Jude [*2*] primarily treats vulnerable

pediatric patients, the hospital implemented a

mandatory COVID vaccine policy for its employees

and established a process for considering requests for

religious and medical accommodations. R. 31-5

(Bottenfield Decl. ¶¶ 22-25) (Page ID #178-79). Kizer

submitted one such request, stating that her

sincerely held religious beliefs prevented her from

receiving the vaccine and asking for permission to

work remotely. R. 31-14 (Accommodation Req. at 5-6)

(Page ID #343-44). St. Jude gathered information

about Kizer’s position, including about the upcoming

launch (or “go live”) of the new Epic system and

determined

that

could

not

reasonably

accommodate Kizer because her job required her to

work in person in clinical areas and in contact with

clinical people. R. 31-5 (Bottenfield Decl. ¶¶ 36-43)

(Page ID #182-83). St. Jude ultimately terminated

Pet. App. 797

Appendix PP

Kizer for failing to become vaccinated. R. 1 (Compl. ¶

6) (Page ID #2). Kizer brought suit for religious

discrimination and failure to accommodate under

Title VII, id. ¶¶ 46-64 (Page ID #10-13), and now

appeals from the district court’s grant of summary

judgment in favor of St. Jude.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s grant of

summary judgment. Tepper v. Potter, 505 F.3d 508,

513 (6th Cir. 2007). Under Federal Rule of Civil

Procedure 56(a), summary judgment is proper “if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” “[B]oth the movant

and the opponent must support their factual

positions either by directing the court’s attention to

materials in the record or by showing that the cited

materials do not establish the presence or absence of

a genuine dispute or that the opposing party cannot

produce any admissible evidence to support the fact.”

10A [*3*] Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2721 (4th ed. June

2024 Update). We construe all reasonable inferences

in favor of the nonmoving party. Tepper, 505 F.3d at

513. The ultimate question is “whether the evidence

presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.”

Pet. App. 798

Appendix PP

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986).

B. Title VII

An employer violates Title VII if, as relevant

here, the employer:

(1) . . . fail[s] or refuse[s] to hire or . . .

discharge[s] any individual, or otherwise . . .

discriminate[s] against any individual with

respect to his compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex, or

national origin; or

(2) . . . limit[s], segregate[s], or classif[ies] [its]

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities or otherwise adversely affect his

status as an employee, because of such

individual’s race, color, religion, sex, or

national origin.

42 U.S.C. § 2000e-2(a).

For purposes of Title VII, “[t]he term ‘religion’

includes all aspects of religious observance and

practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably

accommodate to an employee’s or prospective

Pet. App. 799

Appendix PP

employee’s religious observance or practice without

undue hardship on the conduct of the employer’s

business.” 42 U.S.C. § 2000e(j). Here, Kizer alleges

that St. Jude violated Title VII by failing to

accommodate her sincerely held religious belief that

prevented her from complying with St. Jude’s COVID

vaccine mandate. R. 1 (Compl. at 10-13) (Page ID

#10-13).

“The analysis of any religious accommodation

case begins with the question of whether the

employee has established a prima facie case of

religious discrimination.” Tepper, 505 F.3d at [*4*]

514 (quoting Smith v. Pyro Mining Co., 827 F.2d

1081, 1085 (6th Cir. 1987)). To establish a prima

facie case, a plaintiff must show that: “(1) he holds a

sincere religious belief that conflicts with an

employment requirement; (2) he has informed the

employer about the conflicts; and (3) he was

discharged or disciplined for failing to comply with

the conflicting employment requirement.” Id.

(quoting Smith, 827 F.2d at 1085).

The district court found, and we agree, that

Kizer established her prima facie case: First,

“Defendant[] . . . assumed that all employees who

requested religious accommodations held sincere

religious beliefs. Second, Plaintiff informed St. Jude

of her beliefs by submitting an accommodation

request and stating the reason for her objection to

the vaccine. [St. Jude] received and reviewed

Plaintiff’s request. Third, St. Jude discharged

Pet. App. 800

Appendix PP

Plaintiff on September 24, 2021, when she did not

comply with its mandatory vaccine policy.” R. 42

(Order at 9) (Page ID #692) (citations omitted).

The burden then shifted to St. Jude “to show

that it could not reasonably accommodate the

employee without undue hardship.” Tepper, 505 F.3d

at 514 (quoting Virts v. Consol. Freightways Corp.,

285 F.3d 508, 516 (6th Cir. 2002)). The employer

must thus show that “the burden of granting an

accommodation would result in substantial increased

costs in relation to the conduct of its particular

business,” meaning that the statutory requirement of

“‘undue hardship’ is [met] when a burden is

substantial in the overall context of an employer’s

business.” See Groff v. DeJoy, 600 U.S. 447, 468, 470

(2023).

C. Kizer’s Legal Arguments

On appeal, Kizer first argues that she

submitted evidence to the district court showing that

St. Jude failed to engage her in an interactive

process to find an accommodation (which she [*5*]

believes was required by Title VII) and that the

district court considered improper expert testimony.

Appellant Br. at 28, 34, 38-42. Kizer also intimates

that the district court erred by not ruling on her

discovery-related sanctions motion. Id. at 36-38.

1. Interactive Process

Pet. App. 801

Appendix PP

;Kizer argues that the district court erred in

granting St. Jude’s motion for summary judgment

because she presented evidence below that St. Jude

did not consult her or her direct supervisor

personally in the course of considering her

accommodation request and thus failed to engage in

a “[g]ood [f]aith [i]nteractive [p]rocess.” Appellant Br.

at 28-34. Though Kizer frames this assertion as a

factual dispute, she has pointed to no legal authority

that would require employers considering Title VII

accommodations (rather than accommodations under

the Americans with Disabilities Act (ADA)) to engage

in such a process, much less any legal authority

holding that Title VII required St. Jude to consult

specifically with Kizer or her direct supervisor,

Chrystina Carter, rather than Kizer’s ultimate

supervisor, Colette Hendricks.[1]

Neither the ADA nor Title VII contains a

statutory reference to a required interactive process,

but the regulations implementing the ADA state that

“[t]o

determine

the

appropriate

reasonable

[disability] accommodation it may be necessary for

the [employer] to initiate an informal, interactive

process with the individual with a disability in need

of the accommodation. This process should identify

the precise limitations resulting from the disability

and potential reasonable accommodations that could

overcome those limitations.” 29 C.F.R. § 1630.2(o)(3).

[*6*]

Title VII’s regulations contain no similar

Pet. App. 802

Appendix PP

reference to an interactive process. Kizer does not

ask us to determine whether the ADA’s regulatory

interactive-process requirement applies to religious

accommodation claims under Title VII. But even if

we assume that such a requirement applied, St. Jude

would satisfy it, particularly as defined by regulatory

guidance specific to Title VII.

The

Equal

Employment

Opportunity

Commission (EEOC) publishes a nonbinding

compliance guide for employers covered by Title VII

which provides that, “[a]lthough an employer is not

required by Title VII to conduct a discussion with an

employee before making a determination on an

accommodation request, as a practical matter it can

be important to do so.” U.S. Equal Emp. Opportunity

Comm’n, EEOC-CVG-2021-3, Compliance Manual on

Religious

Discrimination

§12-IV(A)(2)

(2021)

(hereinafter “EEOC Compliance Manual”). The

manual continues, “[o]nce the employer becomes

aware of the employee’s religious conflict, the

employer should obtain promptly whatever

additional information is needed to determine

whether a reasonable accommodation is available

without posing an undue hardship on the operation

of the employer’s business.” Id. Importantly, the

EEOC concludes that “[f]ailure to confer with the

employee is not an independent violation of Title VII.

But as a practical matter, such failure can have

adverse legal consequences.” Id.

As an example, the manual cites our decision in

Pet. App. 803

Appendix PP

EEOC. v. Arlington Transit Mix, Inc., 957 F.2d 219,

222 (6th Cir. 1991), noting that “where an employer

has made no effort to act on an accommodation

request, courts have found that the employer lacked

the evidence needed to meet its burden of proof to

establish that the plaintiff’s proposed accommodation

would actually have posed an undue hardship.”

EEOC Compliance Manual §12-IV(A)(2). In Arlington

Transit Mix, we held that the defendant-employer

had violated the plaintiff-employee’s Title VII rights

because [*7*] there was no evidence that the

employer “made any effort to find a way to avoid the

collision” between a new scheduling system and the

employee’s religious beliefs. 957 F.2d at 222.

The same is not true here. St. Jude submitted

undisputed evidence that it developed and

implemented a systematic process for considering

requests for religious accommodation, including by

“obtain[ing]

promptly

whatever

additional

information [was] needed to determine whether a

reasonable accommodation [was] available.” EEOC

Compliance Manual § 12-IV(A)(2); see R. 31-5

(Bottenfield Decl. ¶¶ 30-31, 33-35) (Page ID #180-81);

R. 31-8 (Bottenfield Dep. at 38:1341:9) (Page ID

#386-89). Kizer’s request provided ample information

about her religious beliefs regarding the vaccine. R.

31-14 (Accommodation Req. at 5-6) (Page ID #34344). St. Jude presented evidence that it obtained and

developed information about the risk of COVID

exposure in the context of its mission of treating

vulnerable juvenile patients, R. 31-5 (Bottenfield

Pet. App. 804

Appendix PP

Decl. ¶ 6, 25) (Page ID #175, 179); R. 31-20 (Hijano

Decl. ¶ 9) (Page ID #419), as well as evidence that St.

Jude obtained information about Kizer’s essential

duties and whether her job could be performed

remotely, R. 31-19 (Hendricks Decl. ¶ 7) (Page ID

#414); R. 31-5 (Bottenfield Decl. ¶ 41) (Page ID

#183); R. 31-16 (Bottenfield Notes at 1) (Page ID

#347); R. 31-18 (Bottenfield Dep. at 39:2040:15,

51:10-20, 53:1-12) (Page ID #387-88, 394-95).

Even under the ADA, an employer’s failure to

engage in an interactive process “is actionable only if

it prevents identification of an appropriate

accommodation for a qualified individual.” EEOC v.

Ford Motor Co., 782 F.3d 753, 766 (6th Cir. 2015) (en

banc) (quoting Basden v. Pro. Transp., Inc., 714 F.3d

1034, 1039 (7th Cir. 2013)) (emphasis in Ford). “In

other words, if the employee fails to create a genuine

dispute of material fact that a reasonable

accommodation would have allowed her to perform

the essential functions of her job, she cannot [*8*]

survive summary judgment on an interactive-process

claim.” Williams v. AT&T Mobility Servs. LLC, 847

F.3d 384, 395 (6th Cir. 2017). As we hold below,

Kizer has not “present[ed] evidence sufficient to

reach the jury on the question of whether she was

able to perform the essential functions of her job with

an accommodation.” Ford Motor Co., 782 F.3d at 766

(quoting Basden, 714 F.3d at 1039).

;Kizer argues that St. Jude should be required

to present evidence that it considered various

Pet. App. 805

Appendix PP

alternative accommodations proposed by Kizer after

the fact, and she asserts that St. Jude failed to

engage in a good-faith interactive process because

“[t]he only accommodation it ever considered . . . was

that all the job duties of the [religious objector] had

to be able to be performed off campus.” Appellant Br.

at 28. But even under the ADA’s explicit interactiveprocess requirement, “. . . [an] employer has the

burden of showing how [a proposed] accommodation

would cause an undue hardship, but the employer is

not required to propose a counter accommodation in

order to participate in the interactive process in good

faith.” Jakubowski v. Christ Hosp., Inc., 627 F.3d

195, 202-03 (6th Cir. 2010). And we have held in

other Title VII contexts that “[i]n deciding whether

an employer reasonably relied on the particularized

facts then before it, we do not require that the

decisional process used by the employer be optimal or

that it left no stone unturned. Rather, the key

inquiry is whether the employer made a reasonably

informed and considered decision before taking an

adverse employment action.” Smith v. Chrysler

Corp., 155 F.3d 799, 807 (6th Cir. 1998).

Ultimately, St. Jude presented evidence that,

because unvaccinated people posed a safety risk to

its vulnerable and unable-to-be-vaccinated juvenile

patient population, the presence of any unvaccinated

staff on campus would be an undue hardship in the

context of St. Jude’s core business [*9*] and mission.

See R. 31-5 (Bottenfield Decl. ¶ 6, 25) (Page ID #175,

179); R. 31-20 (Hijano Decl. ¶ 9) (Page ID #419).

Pet. App. 806

Appendix PP

Kizer has submitted no contrary evidence showing

that it would be safe for unvaccinated people to be on

campus. In fact, she expressly disclaims any

“challenge[] [to] the legitimacy of St. Jude to

implement a mandatory COVID-19 vaccine policy.”

Appellant Br. at 12.

We thus cannot say that, as a matter of law, St.

Jude violated an implicit interactive-process duty

under Title VII (as yet unrecognized in this circuit).

St. Jude has presented evidence of a thorough

information-gathering process with input from Kizer

herself. And the EEOC is clear that Title VII

contains no such hard and fast requirement of an

interactive process. As discussed below, Kizer has not

provided legal authority to support a contrary

conclusion or sufficient factual evidence to allow a

reasonable jury to find that St. Jude could have

accommodated Kizer without undue hardship.

We first dispense with two (arguably) legal

issues before reaching the meat of the issue on

appeal-whether there is a dispute of material fact

about whether St. Jude could have accommodated

Kizer without undue hardship.

2. Expert Evidence

;Kizer argues that, because “[s]he did not

challenge the mandate nor ask for an accommodation

that in any way could be construed as asking to be

present among a vulnerable population or her coPet. App. 807

Appendix PP

workers,” it was reversible error for the district court

to consider what Kizer considers to be expert

evidence and testimony from Dr. Diego Hijano

regarding the effects of COVID-19 and efficacy of the

vaccine.[2] Appellant Br. at 38-42. [*10*]

Although we are inclined to agree with the

district court that Dr. Hijano’s testimony was proper

lay testimony about St. Jude’s rationale for its

business judgment to implement a vaccine mandate,

see R. 42 (Order at 4 n.3) (Page ID #687), we note

that the district court only briefly cited Dr. Hijano’s

declaration in its background section to describe St.

Jude’s reasoning in implementing its response to

COVID-19, id. at 3-4 (Page ID #686-87).

Even if Dr. Hijano’s testimony were improper

expert evidence, Kizer does not explain what

relevance it can have on appeal given that she

expressly disclaims any argument about the

legitimacy of the COVID vaccine mandate and

attacks only St. Jude’s failure to accommodate her.

Because these arguments do not turn on the

characteristics of COVID or the vaccine, we decline

to address Kizer’s objection to Dr. Hijano’s testimony.

3. Sanctions

On appeal, Kizer alleges that “St. Jude

intentionally attempted to obstruct and prevent

[Kizer] from interviewing the immediate supervisor,

Christyna Carter, and as such [Kizer] submitted a

Pet. App. 808

Appendix PP

Motion for Sanctions, which was never addressed by

the District Court.” Appellant Br. at 36-37. Kizer

argues that St. Jude withheld information about

Carter because Carter had superior knowledge of

Kizer’s responsibilities and would testify that “ ;Kizer

could have ‘easily’ been accommodated in a number

of ways.” Id. at 33, 36-37. But Kizer does not explain

how or why the district court’s failure to rule on her

sanctions motion should constitute reversible error.

Nor does Kizer explain how the alleged nondisclosure

of contact information regarding Carter [*11*]

prejudiced Kizer given that she ultimately submitted

a declaration from Carter attached to her opposition

to summary judgment. See R. 32-3 (Carter Decl.)

(Page ID #503-05).

Instead, Kizer appears to complain that this

alleged nondisclosure is a reason to send the case to a

jury. Appellant Br. at 37 (“Ms. Kizer was looking

forward to trial, then, where she could cross-examine

[St. Jude’s witness] in front of a jury, as well as

present testimony from her witness, Ms. Carter, so

they could determine who actually had the

knowledge critical to determining whether or not Ms.

Kizer’s employment had to be terminated or whether

an accommodation could have been made.”). Because

we hold below that the district court did not weigh

witnesses’ credibility and because, even after

considering Carter’s declaration, the district court

correctly found that no dispute of material fact

existed, we need not address Kizer’s unelaborated

sanctions argument on appeal.

Pet. App. 809

Appendix PP

D. Kizer’s Factual Arguments

Kizer further argues that the declaration

authored by Carter, Kizer’s direct supervisor, created

a dispute of material fact as to whether St. Jude

could have accommodated Kizer by allowing her to

work remotely 100% of the time (potentially

assigning her in-person duties to vaccinated

employees), transferring her to another job that could

have been completed 100% remotely, or simply

delaying

the

issue

with

“temporary

accommodation.” See id. at 12-13, 25, 27.

Accordingly, Kizer argues that the district court

erred by resolving factual disputes and credibility

issues that should have been left to the jury. Id. at

13.

1. St. Jude’s Evidence

St. Jude presented evidence that to allow

unvaccinated individuals to work on campus would

pose a safety risk to the hospital’s vulnerable

juvenile patients (who were largely [*12*]

immunocompromised and unable to be vaccinated),

thereby creating an undue hardship for St. Jude. See

R. 31-5 (Bottenfield Decl. ¶ 6, 25) (Page ID #175,

179); R. 31-20 (Hijano Decl. ¶ 9) (Page ID #419). St.

Jude’s evidence also showed that retaining its prevaccine COVID control measures for unvaccinated

employees, including extensive testing and contacttracing protocols, would be costly in both time and

Pet. App. 810

Appendix PP

money. See R. 31-5 (Bottenfield Decl. ¶¶ 26-27) (Page

ID #179); R. 31-18 (Bottenfield Dep. at 14:10-15:4,

59:1-4) (Page ID #375-76, 399); see generally id. at

58:13-61:12 (Page ID #398-401).

Critically, St. Jude presented evidence that, in

the course of considering Kizer’s request for an

accommodation, it learned that Kizer could not

perform her essential job functions remotely; in

particular, in August and September 2021, Kizer’s

team was halfway through the two-year process of

designing, building, and implementing a new

electronic-health-record system known as Epic, and,

as part of that process in the run up to the system’s

“go live” date, “it was anticipated that Ms. Kizer

would

shadow

clinicians,

nurses,

research

coordinators,

clinical

laboratory

personnel,

pharmacists and others involved in clinical research,

often in yellow-zoned clinical areas, to better

understand decision-making and workflow for the

build of the new system.” R. 31-19 (Hendricks Decl.

¶¶ 3, 7) (Page ID #413-14). Colette Hendricks, the

leader of St. Jude’s Epic-transition team and Kizer’s

ultimate

supervisor,

told

the

vaccineaccommodations team that, “[a]s the project got

closer to ‘go live,’ [Kizer’s] job would increasingly

involve this ‘at the elbow’ support [and that] [a]fter

‘go live’ the person in Ms. Kizer’s position would still

be required to meet regularly in person with clinical

research team members to trouble-shoot, refine and

add new research protocols to the system.” Id.; see

also R. 31-5 (Bottenfield Decl. ¶ 41) (Page ID #183);

Pet. App. 811

Appendix PP

R. 31-16 (Bottenfield Notes at 1) (Page ID #347); R.

31-18 (Bottenfield Dep. at 39:20-40:15, 51:10-20,

[*13*] 53:1-12) (Page ID #387-88, 394-95). This

evidence indicates that, contrary to Kizer’s

suggestion, it would be less than a full year before

her in-person duties kicked in. See Appellant Br. at

25-26. St. Jude thus presented evidence that inperson, “at the elbow” shadowing was an essential

function of Kizer’s job not easily “swapped” with

another employee. See Reply Br. at 12-13. And

because Kizer could not be safely on campus while

unvaccinated, she could not be accommodated

without undue hardship.

St. Jude’s evidence also revealed that Kizer’s

other proposed accommodations would create a

substantial burden in the overall context of its

business, and thus an undue hardship. St. Jude

submitted evidence that it maintained no 100%

remote positions; even Kizer’s out-of-state colleagues

were required to come to campus on a regular basis.

R. 31-5 (Bottenfield Decl. ¶ 46) (Page ID #184); R. 3119 (Hendricks Decl. ¶ 3) (Page ID #413-14). Because

transferring Kizer to an alternate position that could

be performed 100% remotely would require St. Jude

first to identify a new position for which Kizer was

qualified and then to determine anew whether that

position could be modified to accommodate her, such

a transfer would not alleviate the undue hardship. R.

31-5 (Bottenfield Decl. ¶ 46) (Page ID #184). And St.

Jude submitted evidence that it developed a

thorough and systematic process for considering

Pet. App. 812

Appendix PP

requests for accommodations, see id. ¶¶ 30-31, 33-35

(Page ID #180-81), that several dozen employees had

requested religious accommodations, and that, unlike

Kizer, the small number who were ultimately

accommodated already occupied positions that could

be modified to be 100% remote, id. ¶¶ 44-46 (Page ID

#183-84). The district court thus correctly found that

St. Jude’s evidence demonstrated that it would be “a

substantial burden in the overall context of St. Jude’s

business,” to identify and modify new positions for

religious objectors, “especially considering the

number of people seeking [*14*] accommodation.” R.

42 (Order at 34) (Page ID #717); see Groff, 600 U.S.

at 468. As addressed below, Kizer submitted no

evidence to the contrary that would sustain a jury

verdict in her favor.

2. The Carter Declaration

In support of her argument that a dispute of

material fact precludes summary judgment, Kizer

relies primarily on a declaration wherein Carter,

Kizer’s former direct supervisor, asserts that “; Kizer

could have easily been accommodated by working at

home and attending meetings remotely without any

effort whatsoever on the part of Saint Jude.” R. 32-3

(Carter Decl. ¶ 10) (Page ID #504). The district court

correctly found that this declaration was conclusory

and amounted to a collection of “unsupported

contention[s]” that did “not create a question of fact.”

R. 42 (Order at 17) (Page ID #700) (quoting Wright v.

Murray Guard, Inc., 455 F.3d 702, 709 (6th Cir.

Pet. App. 813

Appendix PP

2006)).

Carter’s declaration does not explain the factual

basis for her assertions. Carter begins by declaring,

“I know what all of [the ambulatory, beacon and

research teams] did and I totally understand the way

Epic was to be implemented.” R. 32-3 (Carter Decl. ¶

3) (Page ID #503). But Carter does not explain how

she acquired this knowledge (except that she was “in

charge” of those teams). Id. Nor does Carter explain

what those teams actually did or precisely how Epic

was to be implemented in order to support her

contention that she “was the most knowledgeable to

speak about [Kizer]’s job duties and responsibilities.”

Id. ¶ 6 (Page ID #503). Carter also does not explain

the factual underpinnings for her assertions that

“Kizer did not even need to be in the office. Her job

could be done completely from home. She never went

to contact end-users or patients at all,” and that “she

would not have ever worked anywhere near

patients.” Id. ¶¶ 9, 11 (Page ID #504). Carter made

the further blanket assertion that “[w]hen the ‘go

live’ would occur [*15*] a year after [Kizer] was fired,

St Jude could not have known she would be at the

elbow of clinical people. That was never going to

happen.” Id. ¶ 13 (Page ID #504).

Carter’s declaration reads almost like an

applied recitation of each legal argument that Kizer

posed to the district court in her opposition to

summary judgment. Kizer is correct that Carter’s

credibility and trustworthiness are not relevant at

this stage. See Appellant Br. at 34. Instead, Carter

Pet. App. 814

Appendix PP

must provide a factual basis to support her bare

assertions that, based on her personal knowledge,

Kizer could have been accommodated. Such a factual

basis is required if a declaration or affidavit is to

defeat summary judgment. See Fed.R.Civ.P. 56(c)(4)

(“An affidavit or declaration used to support or

oppose a motion must be made on personal

knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is

competent to testify on the matters stated.”

(emphasis added)); see also Alexander v. Kellogg

USA, Inc., 674 Fed.Appx. 496, 499 (6th Cir. 2017) (“It

is the burden of the party submitting the [declaration

or] affidavit to show circumstances indicating the

[affiant or declarant] has based the statement on

personal knowledge.” (quoting Gaskey v. Fulton

Bellows, LLC, No. 3:05-cv-540, 2007 WL 869621, at

*3 (E.D. Tenn. Mar. 20, 2007)); Gill v. Fed. Kemper

Life Assurance Co., No. 85-3670, 1986 WL 17518, at

*4 (6th Cir. Aug. 1, 1986) (“To contravene the

defendant’s proof” and defeat summary judgment,

“plaintiff’s affidavit [or declaration] on proof must

indicate on its face that the information it contains is

given upon personal knowledge.”).

Carter’s declaration cannot support a jury

finding that, contrary to St. Jude’s extensive

evidence, Kizer could have been accommodated

without undue hardship. It is “merely conclusory,

restating the requirements of the law . . . .” Doren v.

Battle Creek Health Sys., 187 F.3d 595, 59899 (6th

Cir. 1999) (holding no dispute of material fact

Pet. App. 815

Appendix PP

created by physician’s conclusory [*16*] affirmation

that ADA plaintiff met the legal requirements for

disability); see Quoc Viet v. Victor Le, 951 F.3d 818,

823 (6th Cir. 2020) (“Just as a plaintiff may not rely

on conclusory allegations to proceed past the

pleading stage, so too a plaintiff may not rely on

conclusory evidence to proceed past the summaryjudgment stage.” (citations omitted)).

Kizer’s deposition testimony contradicts her

own arguments and parts of the Carter declaration.

Kizer herself admitted in her deposition that at the

Epic system’s “go live,” she would expect all

personnel to be on campus, R. 31-2 (Kizer Dep.

Excerpt at 139:9-14) (Page ID #149), though her

counsel now argues the opposite, Appellant Br. at 3334 (“. . . it was never anticipated that Ms. Kizer

would have worked ‘at the elbow’ at ‘go live’ because

it did not make sense for her to” (citing R. 32-3

(Carter Decl. ¶ 12) (Page ID #504))). Kizer also

admitted that, although some of her coworkers

worked remotely some of the time, they were

required to and did come to campus regularly. R. 333 (Kizer Dep. Excerpt at 129:1-131:10) (Page ID

#555-57). And Kizer testified that as part of the Epic

team she did in fact work on campus. Id. at 32:23-25

(Page ID #553).

When faced with St. Jude’s evidence that the

presence of unvaccinated staff on campus was a

safety risk for St. Jude’s vulnerable juvenile patients,

that Kizer’s job could not be performed remotely, that

Pet. App. 816

Appendix PP

transferring Kizer to a position that could be

performed remotely would require St. Jude first to

identify and then to modify a position, and that

Kizer’s in-person duties were essential to her

position, Carter’s bare declaration would not allow a

reasonable jury to rule in Kizer’s favor. The

declaration contains no facts supporting Carter’s

assertion that Kizer could do her job remotely,

whether temporarily or permanently, or that certain

tasks could be allocated to other employees. And the

declaration contains no facts showing that another

remote position existed into which Kizer could be

transferred, with or without further accommodation.

The declaration [*17*] contains only unsupported

conclusions and does not “present[] specific evidence

allowing a rational jury to conclude that” St. Jude

violated Title VII. See Quoc Viet, 951 F.3d at 823.

Nor does Kizer rely on any further factual evidence

that would support a jury verdict in her favor.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the

district court’s grant of St. Jude’s motion for

summary judgment.

--------Notes:

The authority Kizer cites in support of her

contention that Title VII requires an interactive or

[1]

Pet. App. 817

Appendix PP

cooperative process refers to an employee’s duty to

cooperate with the employer, rather than the inverse.

See Appellant Br. at 28 (citing Smith, 827 F.2d at

1085); Smith, 827 F.2d at 1085 (“Although the

burden is on the employer to accommodate the

employee’s religious needs, the employee must make

some effort to cooperate with an employer’s attempt

at accommodation,” a duty which the employee

“‘cannot shirk’“ (quoting Chrysler Corp. v. Mann, 561

F.2d 1282, 1285 (8th Cir. 1977)).

Dr. Hijano was a corporate witness for St. Jude

under Rule 30(b)(6). See R. 31-4 (St. Jude Statement

of Undisputed Material Facts ¶ 13) (Page ID #164).

As medical director of St. Jude’s occupational health

program and member of committees overseeing the

hospital’s COVID response, vaccine mandate, and

accommodation processes, Dr. Hijano was competent

to and did testify about St. Jude’s rationale for

implementing the vaccine mandate. See R. 31-20

(Hijano Decl. ¶¶ 1-5, 10) (Page ID #418-20).

[2]

Pet. App. 818

Appendix QQ

EXHIBIT A

Pet. App. 819

Appendix QQ

IN RE: EAST PALESTINE TRAIN DERAILMENT

CLASS ACTION SETTLEMENT AGREEMENT

(SUBJECT TO COURT APPROVAL)

TABLE OF CONTENTS

Recitals

II.

Definitions

III.

Court Approval Contingency

IV.

Preliminary Approval.

Settlement Administrator

VI.

Notice

VII.

Objections to Settlement

VIII.

Exclusions from Settlement

IX.

Claims

Final Approval

XI.

Termination

XII.

Settlement Fund

Distribution of Settlement Fund

Attorneys’ Fees and Costs

XIII.

Service Award to Plaintiffs

XIV.

Release

XV.

No Admission of Liability

XVI.

Miscellaneous Provisions

Pet. App. 820

Appendix QQ

Exhibit A:

Individual Claim Form

Exhibit B:

Business Loss Claim Form

Exhibit C:

Notice (Short Form)

Exhibit D:

Notice (Long Form)

Exhibit E:

Personal Injury Release

Pet. App. 821

Appendix QQ

This SETTLEMENT AGREEMENT, dated as

of April 26, 2024 (the “Settlement Date”), is made

and entered into by and among Defendants Norfolk

Southern Railway Company and Norfolk Southern

Corporation (collectively, “Norfolk Southern”), and

the Plaintiffs and Class Representatives, individually

and on behalf of the Settlement Class, intending that

this Action shall be fully and finally compromised,

settled, released, and dismissed with prejudice, as to

all Parties to this Settlement Agreement and the

Released Parties under the terms and conditions set

forth herein.

Capitalized terms have the meanings provided

in Section II unless a section or subsection of this

Settlement Agreement provides otherwise.

RECITALS

This Action arises out of the February 3,

2023 derailment of a Norfolk Southern train in East

Palestine, Ohio. Following the derailment, numerous

individual and putative class action lawsuits were

filed against Norfolk Southern in the United States

District Court for the Northern District of Ohio. On

April 5, 2023, the Court (Pearson, J.) consolidated

those pending lawsuits into a single putative class

action lawsuit, In re: East Palestine Train

Derailment, No. 4:23-CV-00242; subsequent to the

Court’s consolidation order, additional lawsuits were

filed, and those were also consolidated into In re:

East Palestine Train Derailment.

Pet. App. 822

Appendix QQ

Also on April 5, 2023, the Court entered

an order appointing interim class counsel, co-lead

counsel, a Plaintiffs’ executive committee, a

Plaintiffs’

steering

committee,

Plaintiffs’

subcommittees, and community liaison counsel. Dkt.

No. 28.

Plaintiffs

Steven

McKay,

Susan

Scheufele, Neely Jack, Dawn Baughman, David

Anderson, James Ross, Jon Luke Affeltranger,

Rosemary Mozuch, Charles Mozuch, Lance Beck,

Clarissa Cohan, Rollerena Auto Sales LLC, Harold

Feezle, DalQan Holdings, LLC, Valley View MPH

LLC, Competition & Luxury Vehicle Club of

Darlington, LLC (together, “Plaintiffs”) filed a

Master Consolidated Class Action Complaint on May

4, 2023. Dkt. No. 31. (Kayla Baker and Gregory

Swan also were originally named Plaintiffs, but the

Court granted their motion to withdraw, as both

Plaintiffs and proposed class representatives, on

March 13, 2024.) Plaintiffs filed their First Amended

Master Consolidated Class Action Complaint on

August 14, 2023, to include claims against new

Defendants OxyVinyls LP, GATX Corporation,

General American Marks Company, and Trinity

Industries Leasing Company. Dkt. No. 138.

Plaintiffs allege harm to individuals,

businesses, and property in the surrounding

communities arising out of or relating to the

Incident. Plaintiffs assert claims for negligence,

negligence per se, gross negligence/willful and

Pet. App. 823

Appendix QQ

wanton conduct, strict liability, nuisance, trespasses,

spoliation, injury to property, and medical

monitoring. Plaintiffs seek compensatory, punitive,

and exemplary damages. Alleged property damages

(real and personal) include contamination/damage to

real property, loss of use and enjoyment of property,

diminution in property value, and loss of inventory.

Alleged economic losses include lost wages, lost

business income, out of pocket expenses, and

permanent

relocation

expenses.

Additionally,

Plaintiffs [*2*] ]seek medical monitoring for alleged

exposure to released chemicals; relief for alleged

contamination of workplace; and relief for alleged

aggravation and upset.

Norfolk Southern denies the merits of

Plaintiffs’ claims and denies that they are entitled to

any relief.

On June 2, 2023, Norfolk Southern filed

a motion to dismiss and to strike the complaint, Dkt.

No. 76, which Plaintiffs opposed on June 30, 2023,

Dkt. No. 103. On March 13, 2024, the Court granted

in part and denied in part the motion to dismiss.

Dkt. No. 428.

The Parties engaged in extensive fact

discovery, which concluded on February 5, 2024,

subject to certain additional depositions taking place

by Party agreement outside the fact discovery period.

The Parties have also engaged in extensive expert

development.

Pet. App. 824

Appendix QQ

The Parties participated in three fullday, in-person mediations before U.S. District Judge

Layn R. Phillips (ret.) (the “Mediator” or “Judge

Phillips”), and further engaged in numerous

telephonic settlement discussions independently and

with the aid of Judge Phillips and his team.

On April 9, 2024, with the assistance of

Judge Phillips, Plaintiffs and Norfolk Southern

announced that they had reached an agreement in

principle to resolve the Action in order to avoid the

expense, burden, and risk of further litigation and

fully and finally resolve the Action and all claims

that were or could have been asserted in the

Complaint.

Upon careful review and analysis of the

extensive record, Class Representatives and Class

Counsel have concluded that it is in the best

interests of the Class Representatives and the

Settlement Class to settle all Released Claims

against the Released Parties for consideration

reflected in the terms and benefits of this Settlement

Agreement. After arm’s length negotiations with

Norfolk Southern’s Counsel, including through the

efforts of Judge Phillips, Class Counsel and Class

Representatives have considered, among other

things: (1) the complexity, expense, and likely

duration of the litigation, through trial and any

appeals that might be taken; (2) the stage of the

litigation and amount of fact gathering and expert

development completed; (3) the potential for Norfolk

Pet. App. 825

Appendix QQ

Southern to prevail in opposing class certification or

on the merits; and (4) the range of possible recovery,

and have determined that this Settlement

Agreement is fair, reasonable, adequate, and in the

best interests of the Class Representatives and the

Settlement Class. Specifically:

Class Counsel strongly believe that this

Settlement Agreement and the Settlement Class

definition are appropriate given the vast fact

discovery and expert development that have now

been undertaken. Depositions and discovery confirm

the “impact zone” that is reflected in the Settlement

Agreement. Upon review and analysis of the vast

record, including extensive environmental data, any

impact of the Incident extends no further than a 20mile radius from the Derailment Site, and any claims

for relief arising out of, or relating to, the Incident

beyond a 20-mile radius are without merit. As

reflected in this Settlement, using a geographic

radius of 20 miles for all claims [*4*] (excepting only

Personal Injury Claims, limited to a 10-mile radius) fairly

and adequately compensates those in East Palestine and

the surrounding affected communities for the Incident.

Moreover, the allocation formula, which, as described

further below, is based on a weighted point system that

heavily considers proximity to the Incident and expert

opinions as to the ensuing spread of toxins, both

prioritizes those Households most impacted and protects

the outlying Households from the risk of an adverse

ruling or verdict.

Eligible

Settlement

Class

Members’

Pet. App. 826

Appendix QQ

ability to voluntarily elect to participate in and

receive a Personal Injury Payment if present within a

10-mile radius of the Incident is designed to

compensate those individuals who have suffered, or

may suffer, a physical injury arising from the

Incident. Because, in Class Counsel’s view, class

actions for Personal Injury Claims are not legally

viable, this Settlement seeks to nevertheless address

all compensable personal injuries on a broad scale.

Those Settlement Class Members who participate

will be compensated for past, present, and future

personal injuries from the Incident. The Settlement

avoids risks of a complete non-recovery for any

person within the 10-mile radius and provides

compensation for personal injuries now and in the

years to come. Class and Co-Lead Counsel—

including counsel who represent individuals with

such injuries—are confident that the 10-mile radius

participation definition is more than expansive

enough to ensure that all of those Settlement Class

Members with Personal Injury Claims are eligible for

additional relief in the form of Personal Injury Payments.

Simply stated, the likelihood of success on the merits for

Personal Injury Claims outside the 10-mile radius is

extremely remote given the science, fact record, and

expert analysis.

Upon careful review and analysis of the

extensive record, Norfolk Southern has concluded in

light of the costs, risks, and burden of litigation, that

this Settlement Agreement in this complex putative

class action litigation is appropriate. Norfolk

Southern and Norfolk Southern’s Counsel agree with

Pet. App. 827

Appendix QQ

the Class Representatives and Class Counsel that

this Settlement Agreement is a fair, reasonable, and

adequate resolution. Norfolk Southern reached this

conclusion after considering, among other things, (1)

the factual and legal issues relating to the litigation,

(2) the substantial benefits of this Settlement

Agreement, (3) the expense that would be necessary

to defend claims through trial and any appeals that

might be taken, and (4) the benefits of resolving

protracted and complex litigation.

The

Parties

desire

compromise, and resolve fully the Action.

settle,

The Parties will seek Court review and

approval of the Settlement Agreement, and, upon

preliminary approval by the Court, the Parties will

seek a Final Judgment from the Court dismissing the

Action with prejudice.

This Settlement Agreement will not be

construed as evidence, nor as an admission by

Norfolk Southern, of any liability or wrongdoing

whatsoever or as an admission by the Class

Representatives, or Settlement Class Members, of

any lack of merit in their claims.

[*5*] NOW, THEREFORE, in consideration of

the agreements, promises, and covenants set forth in

this Settlement Agreement, including the Release,

this Action shall be settled and compromised under

the following terms and conditions.

Pet. App. 828

Appendix QQ

II.

DEFINITIONS

For the purposes of this Settlement

Agreement, the following terms (designated by initial

capitalization throughout this Agreement) will have

the meanings set forth in this Section II.

“Action” means the consolidated case

In re: East Palestine Train Derailment, No. 4:23CV-00242 (N.D. Ohio). It includes all putative class

actions and individual actions composing this

consolidated case (i.e., all individual or putative class

action complaints filed in this Court that have been,

or are in the future, consolidated into this Action),

including but not limited to:

Class Actions

1. Feezle et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00242 (N.D. Ohio Feb. 7, 2023)

2. Eisley et al. v. Norfolk Southern Ry. Co., 4:23CV-00250 (N.D. Ohio Feb. 8, 2023)

3. Hall et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00257 (N.D. Ohio Feb. 9, 2023)

4. Erdos et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00268 (N.D. Ohio Feb. 9, 2023)

5. Kinder et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00292 (N.D. Ohio Feb. 15, 2023)

6. Canterbury et al. v. Norfolk Southern Corp. et

Pet. App. 829

Appendix QQ

al., 4:23-CV-00298 (N.D. Ohio Feb. 15, 2023)

7. Battaglia et al. v. Norfolk Southern Ry. Co. et

al., 4:23-CV-00303 (N.D. Ohio Feb. 16, 2023)

8. Davis et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00308 (N.D. Ohio Feb. 16, 2023)

9. Ibel et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00315 (N.D. Ohio Feb. 17, 2023)

10. Baker et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00324 (N.D. Ohio Feb. 20, 2023)

11. Snyder et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00344 (N.D. Ohio Feb. 22, 2023)

12. Dettmer et al. v. Norfolk Southern Ry. Co. et

al., 4:23-CV-00345 (N.D. Ohio Feb. 22, 2023)

[*6*]

13. Fisher et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00350 (N.D. Ohio Feb. 23, 2023)

14. Atkinson et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00363 (N.D. Ohio Feb. 23, 2023)

15. Bodnar et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00380 (N.D. Ohio Feb. 24, 2023)

16. Mozuch et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00415 (N.D. Ohio Mar. 1, 2023)

17. Smith et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00429 (N.D. Ohio Mar. 2, 2023)

18. Affeltranger et al. v. Norfolk Southern Corp. et

al., 4:23-CV-00440 (N.D. Ohio Mar. 3, 2023)

Pet. App. 830

Appendix QQ

19. Irizarry et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00479 (N.D. Ohio Mar. 9, 2023)

20. Policaro et al. v. Norfolk Southern Corp. et al.,

4:23-CV-00495 (N.D. Ohio Mar. 11, 2023)

21. Barnhouse v. Norfolk Southern Corp. et al.,

4:23-CV-00510 (N.D. Ohio Mar. 13, 2023)

22. Kurtz, Jr. et al. v. Norfolk Southern Corp. et

al., 4:23-CV-00529 (N.D. Ohio, Mar. 15, 2023)

23. Bunts et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00586 (N.D. Ohio Mar. 21, 2023)

24. Loyd et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00634 (N.D. Ohio Mar. 24, 2023)

Individual Actions

1. Ceramfab, Inc. et al. v. Norfolk Southern Corp. et

al., 4:23-CV-00509 (N.D. Ohio Mar. 13, 2023)

2. Culixte v. Norfolk Southern Ry. Co. et al., 4:23CV-0600 (N.D. Ohio Mar. 21, 2023)

3. Gurney et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00601 (N.D. Ohio Mar. 21, 2023)

4. Hamilton et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00602 (N. D. Ohio Mar. 21, 2023)

5. Hammond v. Norfolk Southern Ry. Co. et al., 4:23CV-00603 (N.D. Ohio Mar. 21, 2023)

[*7*]

6. McAller et al. v. Norfolk Southern Ry. Co. et al.,

4:23-CV-00604 (N. D. Ohio Mar. 21, 2023)

Pet. App. 831

Appendix QQ

7. Mann et al. v. Norfolk Southern Corp. et al., 4:23CV-00672 (N.D. Ohio Mar. 30, 2023)

8. Turner v. Norfolk Southern Train Co. et al., 4:23CV-00870 (N.D. Ohio Apr. 13, 2023)

9. Ceramfab, Inc. et al. v. Norfolk Southern Corp. et

al., 4:23-CV-2206 (N.D. Ohio Nov. 14, 2023)

10. Almasy et al. v. Norfolk Southern Corp. et al.,

4:24-CV-00452 (N.D. Ohio Mar. 8, 2024)

“Administrative Deposit” means a

payment of five million dollars ($5,000,000.00) into

the Escrow Account paid within fourteen (14) days

after the grant of Preliminary Approval by the

Court.

“Administrative Expenses” means the

costs incurred in administering this Settlement,

including the costs of Notice.

“Administrator”

“Settlement

Administrator”

means

Kroll

Settlement

Administration, LLC, subject to approval of the

Court, which will perform services associated with

the administration of the Settlement Agreement

including but not limited to providing the Notice;

creating and maintaining the Settlement Website;

establishing the qualified settlement fund and

complying with its tax filing, paying and reporting

obligations; receiving and processing Claim Forms;

providing information and reports to Class Counsel

and Norfolk Southern’s Counsel upon request or as

Pet. App. 832

Appendix QQ

otherwise required by this Settlement Agreement;

sending payments under the terms of the

Settlement; being responsible for any tax reporting;

and

performing

such

other

settlement

administration

matters

set

forth

herein,

contemplated by the Settlement, and/or ordered by

the Court.

“Agreement,” “Settlement Agreement,”

or “Settlement” means this Settlement Agreement

and all accompanying exhibits, including any

subsequent amendments thereto and any exhibits to

such amendments.

“Business” means any corporation,

company, foundation, association, labor organization,

firm, partnership, society, joint stock company, or

group of organizations, as well as any unincorporated

or other business or trading name that lacks

independent legal form or status and under which

any individual trades or conducts business.

“Claim” means a request to participate

in the Settlement Fund submitted by a Settlement

Class Member to the Settlement Administrator in

accordance with the terms of the Settlement

Agreement.

[*8*]

“Claim Deadline” means the date ninety

(90) days after the Notice Date, which is the date by

which Settlement Class Members must respond to

Pet. App. 833

Appendix QQ

the Notice of this Settlement by submitting a Claim

Form.

“Claim for Extraordinary Loss or

Damage” or “Claim for Extraordinary Injury” means

any Claims for documented loss, damage, or injury

that are so different in kind or degree from those

experienced by the majority of Settlement Class

Members that they may not be adequately addressed

by the general plan of allocation and, in the

discretion of the Settlement Administrator, may

entitle a Settlement Class Member to an additional

award or payment from the Settlement Fund,

pursuant to Sections XIII.C.1 and XIII.C.3.

“Claim Form” means a document

making a Claim—for Direct Payment, Business

Loss, or Personal Injury—in substantially the forms

attached here as Exhibit A (Individual Claim Form)

and Exhibit B (Business Loss Claim Form).

“Class Counsel” means the courtappointed interim class action counsel who are so

designated and who are signatories to this

Settlement Agreement, namely, Seth A. Katz of Burg

Simpson Eldredge Hersh & Jardine, P.C., M.

Elizabeth Graham of Grant & Eisenhofer P.A., and

Jayne Conroy of Simmons Hanly Conroy LLC.

“Class

Representatives”

means

Plaintiffs Steven McKay, Susan Scheufele, Brenda

Williams, Dawn Baughman, David Anderson, James

Ross, Jon Luke Affeltranger, Rosemary Mozuch,

Pet. App. 834

Appendix QQ

Charles Mozuch, Lance Beck, Clarissa Cohan,

Rollerena Auto Sales LLC, Harold Feezle, DalQan

Holdings, LLC, Valley View MPH LLC, and

Competition & Luxury Vehicle Club of Darlington,

LLC, or such other or different persons as may be

appointed by the Court as the representatives of the

Settlement Class.

“Co-Lead Counsel” means the courtappointed co-lead counsel who are so designated,

namely, Seth A. Katz of Burg Simpson Eldredge

Hersh & Jardine, P.C., M. Elizabeth Graham of

Grant & Eisenhofer P.A., Jayne Conroy of Simmons

Hanly Conroy LLC, and T. Michael Morgan of

Morgan & Morgan, P.A.

“Complaint” means, unless specified

otherwise, the First Amended Master Consolidated

Class Action Complaint filed in the Action on August

14, 2023, and any subsequent or amended complaint

filed in the Action.

“Court” means the United States

District Court for the Northern District of Ohio.

“Defendants” or “Norfolk Southern”

means Norfolk Southern Railway Company and

Norfolk Southern Corporation.

“Defense

Counsel”

“Norfolk

Southern’s Counsel” means Wilmer Cutler Pickering

Hale and Dorr LLP and Dickie, McCamey & Chilcote,

P.C.

Pet. App. 835

Appendix QQ

“Derailment Site” means the site of the

derailment of Norfolk Southern Train 32N on

February 3, 2023, in East Palestine, Ohio (Latitude:

40.8360395°N, Longitude:-80.5222838°W).

[*9*]

“Effective Date” means one business day

following the later of: (1) the date upon which the

time expires for filing or noticing any appeal of the

Final Judgment; (2) if there is an appeal or appeals,

the date of completion, in a manner that finally

affirms and leaves in place the Final Judgment

without any material modification, of all proceedings

arising out of the appeal(s) (including but not limited

to the expiration of all deadlines for motions for

reconsideration or petitions for review and/or

certiorari, all proceedings ordered on remand, and all

proceedings arising out of any subsequent appeal(s)

following decisions on remand); or (3) the date of

final dismissal of any appeal or the final dismissal of

any proceeding on certiorari with respect to the Final

Judgment.

“Eligible Personal Injury Settlement

Class Member” means a Settlement Class Member

Person who (1) was physically located within 10

miles of the Derailment Site at any time between the

date of the Incident and the Settlement Date, and (2)

affirms his/her/their presence within those 10 miles

during that time, pursuant to Section XIII.C.3.

“Escrow Account” means the separate,

Pet. App. 836

Appendix QQ

interest-bearing escrow account to be established by

the

Settlement

Administrator

under

terms

acceptable to Class Counsel and Defense Counsel at

a depository institution insured by the Federal

Deposit Insurance Corporation that will constitute a

court-approved “qualified settlement fund” for

federal tax purposes pursuant to 26 C.F.R. § 1.468B1.

“Fee Award” means the amount of

attorneys’ fees and reimbursement of costs to Class

Counsel approved by the Court to be paid out of the

Settlement Fund.

“Final Approval Hearing” means the

hearing before the Court where Plaintiffs will

request that the Court grant Final Approval of the

Settlement and enter the Final Judgment, thereby

finally approving the Settlement as fair, reasonable,

and adequate, and determining the Fee Award and

the Service Awards to the Class Representatives.

“Final Approval” means the Court’s

order finally approving the Settlement.

“Final Judgment” means the final order

and judgment to be entered by the Court confirming

certification of the Settlement Class for purposes of

Settlement, approving the Settlement of the Action in

accordance with this Settlement Agreement after the

Final Approval Hearing, and dismissing the Action

with prejudice.

Pet. App. 837

Appendix QQ

“Household”

means

occupying a single housing unit.

all

Persons

AA. “Incident” means the February 3, 2023

derailment of Norfolk Southern train 32N in East

Palestine, Ohio, including without limitation the

February 6, 2023 controlled release (also referred to

as the vent and burn) of hazardous materials

contained in certain derailed railcars and the

chemical release, fire, emergency response, clean-up,

remediation, shelter-in-place and evacuation in and

around East Palestine, Ohio following the February

3, 2023 train derailment and February 6, 2023

controlled release.

[*8*]

BB. “Minor Approval Process” means the

process whereby Class Counsel shall take all

necessary steps to secure valid and legally

enforceable releases, including Personal Injury

Releases, for minor Settlement Class Members (i.e.,

Settlement Class Members who have not, as of the

Claim Deadline, reached the age of majority under

applicable law).

CC. “Non-Settling

Railcar

Defendants”

means the new defendants named in Plaintiffs’ First

Amended Master Consolidated Class Action

Complaint, filed on August 14, 2023: OxyVinyls LP,

GATX Corporation, General American Marks

Company, and Trinity Industries Leasing Company.

Pet. App. 838

Appendix QQ

DD. “Notice” or “Settlement Notice” means

the notice of this proposed Settlement and Final

Approval Hearing, which, subject to Court approval,

is to be disseminated to the Settlement Class

substantially in the manner set forth in this

Settlement Agreement, and which fulfills the

requirements of Due Process and Federal Rule of

Civil Procedure 23, and is substantially in the form

of Exhibit C (short-form Notice) and Exhibit D (longform Notice).

EE.

“Notice Date” means the date by which

the Notice is disseminated to the Settlement Class,

which shall be a date no later than twenty-eight (28)

days after entry of Preliminary Approval.

FF.

“Parties” means Norfolk Southern and

Class Representatives, individually and on behalf of

the Settlement Class (both of which may be referred

to individually as a “Party”).

GG. “Person” means any individual natural

person or any agent or beneficiary thereof.

HH. “Personal Injury Claim” means a

personal and/or bodily injury claim as defined in

Paragraph 5 of Exhibit E (Personal Injury Release).

For avoidance of doubt, claims for medical

monitoring, or mental or emotional injury or harm,

are not Personal Injury Claims and instead are

included in the definition of Released Claims, below.

II.

“Personal

Injury

Settlement

Fund”

Pet. App. 839

Appendix QQ

means that portion of the Settlement Fund allocated

to satisfy Claims for Personal Injury Payment, as

determined by the Settlement Administrator in

consultation with Class Counsel, pursuant to Section

XIII.D.

JJ.

“Plaintiffs” or “Named Plaintiffs” means

Steven McKay, Susan Scheufele, Brenda Williams,

Dawn Baughman, David Anderson, James Ross, Jon

Luke Affeltranger, Rosemary Mozuch, Charles

Mozuch, Lance Beck, Clarissa Cohan, Rollerena Auto

Sales LLC, Harold Feezle, DalQan Holdings, LLC,

Valley View MPH LLC, and Competition & Luxury

Vehicle Club of Darlington, LLC.

KK. “Preliminary Approval” means the

Court’s

Order

preliminarily

approving

the

Agreement, appointing Class Counsel, certifying

and/or finding the Settlement Class is likely to be

certified for purposes of entering the Final

Judgment, and approving the form and manner of

the Notice.

LL.

“Release” means the entirety of Section

XVI, including any defined terms in this Section II.

[*10*]

MM. “Released Claims” means any and all

past, present, or future claims or causes of action,

whether known or unknown, including “Unknown

Claims” as defined below, whether in law or in

equity, under contract, tort or any other subject area,

Pet. App. 840

Appendix QQ

or under any statute, rule, regulation, order, or law,

whether federal, state, or local, on any grounds

whatsoever, that were alleged or could have been

alleged in the Action relating to the Incident,

including without limitation, negligence, gross

negligence, strict liability, public nuisance, private

nuisance, trespass, trespass to chattels, medical

monitoring, mental or emotional injury or harm,

spoliation, statutory violations, including but not

limited to claims under Ohio R.C. §§ 901.51, 959.02,

42 Pa. C.S.A. § 8313, W.Va. Code § 61-3-41, loss of

employment or earning capacity, diminution of

property value, property damage (real or personal),

loss of use or enjoyment of property, evacuationrelated losses, punitive damages, compensatory

damages, pain and suffering, injunctive relief, strict

liability, willful misconduct, and all other theories,

whether existing now or arising in the future, arising

out of, due to, resulting from, or relating in any way

to, directly or indirectly, the Incident, with the sole

exception of Personal Injury Claims as set forth

below.

Personal Injury Claims—and only

Personal Injury Claims—are excepted from the

definition of Released Claims.

Personal Injury Claims will be released

only if an Eligible Personal Injury Settlement Class

Member elects to receive a Personal Injury Payment

and executes a separate Personal Injury Release.

Pet. App. 841

Appendix QQ

NN.

“Released Parties” means:

Norfolk Southern and any of its past or

present parents, subsidiaries, affiliated companies,

and corporations, and any of their past or present

officers, directors, managers, employees, general

partners, limited partners, principals, insurers,

reinsurers,

shareholders,

attorneys,

advisors,

representatives, agents, consultants, contractors,

service providers, successors, or assigns;

OxyVinyls LP, GATX Corporation,

General American Marks Company, Trinity

Industries Leasing Company (collectively defined

above as the “Non-Settling Railcar Defendants”);

any other manufacturers, owners,

lessors, lessees, shippers, and consignees of the rail

cars and products involved in the Incident;

the manufacturers, installers, and

designers of the rail track or other railroad

equipment associated with the Incident, including

without limitation Progress Rail;

Louis;

the Association of American Railroads;

the Terminal Railroad Association of St.

any persons, business entities, and

agencies that assisted in or supported the emergency

response,

remediation,

air

monitoring,

soil

Pet. App. 842

Appendix QQ

monitoring, water monitoring, [*12*] and clean-up

activities associated with the Incident—including for

avoidance of doubt and without limitation, Arcadis U.S.,

Inc.; Braskem America Inc.; Center for Toxicology and

Environmental Health (CTEH); EnviroScience, Inc.;

Explosive Service International; Specialized Professional

Services Inc. (SPSI); Midland Manufacturing; Specialized

Response

Solutions

(SRS);

Hazardous

Products

Abatement

Company

(HEPACO);

EnviroServe;

Engineering Systems Inc. (Esi); Cranemasters; Hulcher

Services, Inc.; R.J. Corman Railroad Group; and Timken

Company—including the activities of private, public, and

governmental agencies, entities, and authorities, whether

federal, state, county, or local, their employees, officers,

agents, members, and volunteers; and

any owners, lessors, and lessees of any

other real property located at the site of the Incident.

For the avoidance of doubt, any of the

“Released Parties” includes, for any of the foregoing

entities, any past or present parents, subsidiaries,

affiliated companies, and corporations, and any past

or present officers, directors, managers, employees,

general partners, limited partners, principals,

insurers,

reinsurers,

shareholders,

attorneys,

advisors, representatives, agents, consultants,

contractors, service providers, successors, or assigns.

OO. “Response Deadline” means the date

thirty (30) days after the Notice Date, which is the

date by which Settlement Class Members must

respond to the Notice of this Settlement by

Pet. App. 843

Appendix QQ

(1) submitting a written objection to the

Settlement Agreement with the Settlement

Administrator; or (2) submitting a request for

exclusion to the Settlement Administrator. The

Response Deadline will be set forth in the Notice and

on the Settlement Website.

PP.

“Service Award” means such award as

the Court may authorize to be paid to the Class

Representatives from the Settlement Fund for their

service to the Class in bringing and prosecuting this

case.

QQ. “Settlement Class” means all Persons

and Businesses residing, owning or otherwise having

a legal interest in property, working, or owning or

operating a business within a 20-mile radius of the

Derailment Site, from February 3, 2023 to the

Settlement Date. Excluded from the Settlement

Class are: Norfolk Southern, and any of its parents,

subsidiaries, or affiliates; all duly elected and

approved officers of Norfolk Southern, and all

directors of Norfolk Southern; Norfolk Southern

employees, and contractors of Norfolk Southern and

their employees, who were specifically sent by

Norfolk Southern to the area in and around the

Derailment Site to respond to the Incident and do not

otherwise fall within the definition of Settlement

Class; Norfolk Southern’s Counsel; Class Counsel; a

government, political subdivision, public entity, or

public agency; and the judge presiding over this

Action and the judge’s staff.

Pet. App. 844

Appendix QQ

[*13*]

RR. “Settlement Class Member” or “Class

Member” means a Person or Business who falls

within the definition of the Settlement Class and

who does not submit a valid request for exclusion

from the Settlement Class.

SS.

“Settlement Fund” means the nonreversionary cash settlement amount of six-hundredmillion dollars ($600,000,000.00), plus all income

earned thereon. Payments to Class Members from

the Settlement Amount shall be allocated pursuant

to the terms in Section XIII. The Settlement Fund

shall satisfy all monetary obligations of Norfolk

Southern under this Settlement Agreement. In no

event shall Norfolk Southern be required to pay more

than the amount of six-hundred-million dollars

($600,000,000.00).

TT.

“Settlement Website” means the website

to be created, launched, and maintained by the

Administrator, which among other things will

provide access to relevant settlement administration

documents, including the Notice, relevant case

documents, and other relevant material.

UU. “Unknown Claims” means claims that

could have been but were not raised in the Action,

including but not limited to claims that Plaintiffs or

any member of the Settlement Class do not know or

suspect to exist, which, if known by him, her, them,

or it, might affect his, her, their, or its agreement to

Pet. App. 845

Appendix QQ

release the Released Claims or might affect his, her,

theirs, or its decision to agree, to object, or not to

object to the Settlement.

III.

COURT APPROVAL CONTINGENCY

All terms of this Agreement, except as

provided in Section III.B, are contingent upon (1)

Preliminary Approval of the Settlement by the Court;

(2) Final Approval of the Settlement by the Court

dismissing the Action with prejudice, including any

necessary approvals under the Minor Approval

Process; (3) certification by the Court of the

Settlement Class for settlement purposes only; and

(4) the exhaustion of any appeals.

Notwithstanding the exhaustion of any

appeals under Section III.A, the Personal Injury

Settlement Fund shall be distributed in accordance

with Section XIII.D, and executed Personal Injury

Releases shall become effective upon Final Approval,

or upon any necessary approvals under the Minor

Approval Process, and shall remain effective

regardless of any appeals or court decisions relating

in any way to this Agreement.

IV.

PRELIMINARY APPROVAL

The Parties and their counsel agree

that, within fourteen (14) days of the Settlement

Date, Plaintiffs will file a motion for Preliminary

Approval of Class Action Settlement with the Court

seeking Preliminary Approval of this proposed

Pet. App. 846

Appendix QQ

Settlement. The motion for Preliminary Approval

shall request that the Court (1) preliminarily approve

the terms and conditions of the Settlement

Agreement; (2) approve the Notice to the Settlement

Class and the Claim Forms and authorize the notice

program distributing them; (3) certify the Settlement

Class [*14*] for settlement purposes only and appoint

Class Counsel as counsel to the Settlement Class for

purposes of this Settlement; and (4) schedule a Final

Approval Hearing, not earlier than one-hundred-fifty

(150) days after Preliminary Approval. The motion for

Preliminary Approval of Class Action Settlement shall be

accompanied by a Proposed Order Granting Preliminary

Approval of Class Action Settlement in a form to be

agreed upon by the Parties.

The Parties agree to take all

commercially reasonable actions necessary to obtain

Preliminary and Final Approval of the Settlement

and entry of a Final Judgment dismissing all

Released Claims against all Released Parties with

prejudice. The Parties agree to offer mutual support

to the proposed Settlement in all court proceedings

and public communications.

Norfolk

Southern

stipulates,

for

settlement purposes only, to the certification of the

Settlement Class but does not waive, and instead

expressly reserves, its right to challenge the

propriety of conditional or class certification for any

other purpose, as if this Agreement had not been

entered into by the Parties, in the event that the

Court does not grant Preliminary Approval or Final

Pet. App. 847

Appendix QQ

Approval to the Settlement or the Effective Date does

not occur. The Parties agree that, if approved,

certification of the Settlement Class is in no way an

admission by Norfolk Southern that class

certification is proper in the Action, or any other

litigation against Norfolk Southern. The Parties

further agree that, other than to effectuate the

Settlement of this Action in this jurisdiction, the

certification of the Settlement Class for settlement

purposes only and all documents related thereto,

including this Agreement and all accompanying

exhibits and all orders entered by the Court in

connection with this Agreement, shall not be

construed or asserted as an acknowledgement of

liability, and shall not be admissible in any judicial,

arbitral, administrative, investigative, or other court,

tribunal, forum, or other proceeding, against any of

the Released Parties, with the only admissibility

exception being on behalf of Norfolk Southern, in its

discretion, with respect to the enforcement of any of

its rights of contribution, subrogation, or indemnity

under any law.

The form of class certification order set

forth in the Preliminary Approval Order, Final

Approval Order, and Judgment or otherwise, shall

expressly state that the Parties agree that

certification of the Settlement Class is a conditional

certification for settlement purposes only.

SETTLEMENT ADMINISTRATOR

Pet. App. 848

Appendix QQ

Class Counsel shall retain Kroll

Settlement Administration, LLC to serve as

Settlement Administrator and perform services

associated with the administration of the Settlement

including, without limitation, disseminating Notice

to Settlement Class Members, disseminating the

notices required by the Class Action Fairness Act

(CAFA), 28 U.S.C. § 1715, maintaining the

Settlement Website, receiving and processing Claim

Forms, distributing awards from the Settlement

Fund to Settlement Class Members, and complying

with the qualified settlement fund’s tax obligations.

The Settlement Administrator shall also

provide any necessary information to the Court

concerning the administration and processing of

Claims, including providing reports on request to

Class Counsel or Norfolk Southern’s Counsel

concerning Claims, objections, and [*15*] exclusions,

and shall respond to inquiries from Class Counsel, Norfolk

Southern’s Counsel, the Court, and Settlement Class

Members.

The Settlement Administrator shall, no

later than thirty (30) days after the Response

Deadline, provide a final report to Class Counsel and

Norfolk Southern’s Counsel that identifies the

number of requests for exclusion and objections

received.

The Settlement Administrator shall, no

later than seven (7) days after the Claim Deadline,

provide a final report (the “Claims Report”) to Class

Pet. App. 849

Appendix QQ

Counsel and Norfolk Southern’s Counsel that

identifies the number and types of Claims received,

including the number of Claims for Personal Injury

Payment and Personal Injury Releases, and other

pertinent information, including any executed

Personal Injury Releases, as well as any submitted

Claims Forms.

The costs of administering the

Settlement, including the fees and costs paid to the

Settlement Administrator, shall be paid from the

Settlement Fund.

VI.

NOTICE

The Parties agree to the following

procedures regarding notice:

Within twenty-one (21) days after the

Court grants Preliminary Approval of the proposed

Settlement, the Settlement Administrator shall

establish the Settlement Website, which will inform

Settlement Class Members of the terms of this

Settlement, their rights, dates and deadlines, and

related information. The Settlement Website shall

also make the Claim Forms available for download

and provide Settlement Class Members with the

ability to complete and submit the Claim Forms

electronically. The Parties shall confer and agree on

information posted on the Settlement Website.

Within twenty-eight (28) days after the

Court grants Preliminary Approval of the proposed

Pet. App. 850

Appendix QQ

Settlement (the “Notice Date”), the Settlement

Administrator shall send the Settlement Notice

approved by the Court to all Settlement Class

Members, via First Class regular U.S. mail, using

the most current mailing addresses presently

available to Class Counsel.

No later than five (5) days after the

Notice Date, the Settlement Administrator shall

provide Notice by publication as set forth in the

Notice plan.

Pursuant to 28 U.S.C. § 1715, not later

than ten (10) days after the Settlement Agreement is

filed with the Court, the Settlement Administrator

shall cause to be served notice of the proposed

Settlement as required by law upon the Attorneys

General of each U.S. State in which Settlement Class

members reside (Ohio, Pennsylvania, and West

Virginia), the Attorney General of the United States,

and any other required government officials.

VII.

OBJECTIONS TO SETTLEMENT

The Notice shall provide Settlement

Class Members who wish to object to the Settlement,

including the Fee Award or Service Award, with

instructions that they must serve [*16*] any objection

on the Settlement Administrator with a written statement

objecting to the Settlement.

For an objection to be considered by the

Court, the objection must be submitted by the

Pet. App. 851

Appendix QQ

Response Deadline.

In addition, for an objection to be

considered by the Court, the objection must set forth:

a statement that the objection is to the

proposed

East

Palestine

Train

Derailment

Settlement (the formal name of the Action is not

required);

the objector’s full name, mailing

address, email address, telephone number, address

at which the objector lived, or, if a Business,

operated, on February 3, 2023, and if, on behalf of a

Business, the Business name and address;

all

grounds

for

the

objection,

accompanied by any legal support for the objection

known to the objector or his or her counsel;

the identity of all counsel who represent

the objector, if any;

a statement whether the objector

intends to personally appear and/or testify at the

Final Approval Hearing;

the objector’s signature (an attorney’s

signature alone is not sufficient);

and

identification

any

class

action

Pet. App. 852

Appendix QQ

settlements objected to by the objector

years.

and/or objector’s counsel in the last three

Such

written

objection

and

all

supporting briefs or other materials must be served

on the Settlement Administrator no later than the

Response Deadline. Class Counsel shall file all such

written objections with the Court at least twenty (20)

days prior to the Final Approval Hearing. No Person

or Business shall be entitled to be heard at the Final

Approval Hearing (whether individually or through

separate counsel) or to object to the Settlement, and

no written objections or briefs submitted by any

person shall be received or considered by the Court

at the Final Approval Hearing, unless such written

statement of objections and supporting materials are

timely served upon the Settlement Administrator as

set forth herein. Persons or Businesses who wish to

speak at the Final Approval Hearing to object to the

Settlement must so state in their written objection,

as described above. Persons or Businesses failing to

file and serve timely written objections in the

manner specified above shall be deemed to have

waived any objections and shall be foreclosed from

making any objection (whether by appeal or

otherwise) to the Settlement. Persons or Businesses

that are not Settlement Class Members may not

object to the Settlement.

In the exercise of their due diligence,

Pet. App. 853

Appendix QQ

Class Counsel and/or Defense Counsel may seek

expedited discovery from an objecting Settlement

Class Member regarding the basis for the [*17*]

objection, to allow them to appropriately respond to the

objection. Failure by the objecting Settlement Class

Member to comply with expedited discovery requests may

result in the Court striking the Settlement Class

Member’s objection and otherwise denying that

Settlement Class Member the opportunity to make an

objection or be further heard.

To the extent any Settlement Class

Member objects to the Settlement, and such objection

is overruled in whole or in part, such Settlement

Class Member will be forever bound by the Final

Approval Order and Judgment of the Court.

VIII. EXCLUSIONS FROM SETTLEMENT

Any Person or Business in the

Settlement Class may submit a request for exclusion

from the Settlement on or before the Response

Deadline.

A request for exclusion from the

Settlement by any Person, excluding minor Persons,

constitutes a request for exclusion from the

Settlement by that Person’s entire Household. If a

Person requesting exclusion withdraws his or her

request for exclusion, that Person’s entire Household

will be deemed to have withdrawn the request for

exclusion as well.

Pet. App. 854

Appendix QQ

To be valid, any request for exclusion

must (1) be in writing; (2) identify the case name (In

re: East Palestine Train Derailment, No. 4:23-CV00242 (N.D. Ohio)); (3) state the full name, current

address, and address of the Person or Business in the

Settlement Class seeking exclusion; (4) be signed by

the Person or Business seeking exclusion; and (5) be

postmarked or received by the Settlement

Administrator on or before the Response Deadline.

Each request for exclusion must also contain a

statement to the effect that “I hereby request to be

excluded from the proposed Settlement Class in In

re: East Palestine Train Derailment, No. 4:23-CV00242 (N.D. Ohio).”

A request for exclusion that does not

include all of the foregoing information, that is sent

to an address or email address other than that

designated in the Notice, or that is not postmarked

or delivered to the Settlement Administrator within

the time specified, shall be invalid and the Persons or

Businesses serving such a request shall be deemed to

remain Settlement Class Members and shall be

bound as Settlement Class Members by this

Settlement Agreement, if approved. No Person or

Business may request to be excluded from the

Settlement Class through “mass” or “class” opt-outs

meaning that, with the exception of the treatment of

Households under Section VIII.B, each Person or

Business who seeks to be excluded must send an

individual, separate, request to the Settlement

Administrator that complies with all requirements of

Pet. App. 855

Appendix QQ

this Section VIII.

Any Person or Business who requests

exclusion from the Settlement Class shall not (1) be

bound by any orders or Final Judgment entered in

the Action; (2) receive a payment under this

Settlement Agreement; (3) gain any rights by virtue

of this Settlement Agreement; or (4) be entitled to

object to any aspect of this Settlement Agreement or Final

Judgment.

[*18*]

Copies of all requests for exclusion from

the Settlement Class received by the Administrator

(or other person designated to receive exclusion

requests) shall be provided to Defense Counsel and

Class Counsel no later than fourteen (14) days after

the Response Deadline.

IX.

CLAIMS

All Settlement Class Members will be

entitled to submit a Claim against the Settlement

Fund.

Claim Forms will be submitted

electronically, by mail, or in person at a claims

assistance center and will be administered by the

Settlement

Administrator.

Settlement

Class

Members will need to submit the information and/or

documentation identified in the Claim Form. Sample

Claim Forms are attached as part of the Class

Pet. App. 856

Appendix QQ

Notice, Exhibits C and D.

Claims must be submitted by the Claim

Deadline (i.e. the date that is ninety (90) days after

the Notice Date), although Norfolk Southern and

Plaintiffs may agree to have considered Claims

received after that date in their discretion and after

consultation with the Settlement Administrator.

FINAL APPROVAL

After Notice to the Settlement Class is

given, within fourteen (14) days after the Settlement

Administrator provides the Claims Report, Class

Counsel shall move the Court for entry of Final

Approval and a Final Judgment, which shall include,

among other provisions, a request that the Court:

find that it has personal jurisdiction

over all Settlement Class Members and subject

matter jurisdiction to approve this Settlement

Agreement, including all attached Exhibits;

approve the Settlement as fair,

reasonable, and adequate as to, and in the best

interests of, the Settlement Class Members;

direct the Parties and their counsel to

implement and consummate the Settlement

according to its terms and conditions;

find that the Notice implemented

pursuant to the Settlement Agreement (a) constitutes

Pet. App. 857

Appendix QQ

the best practicable notice under the circumstances; (b)

constitutes notice that is reasonably calculated, under the

circumstances, to apprise the Settlement Class of the

pendency of the Action and their rights to object to or

exclude themselves from this Settlement Agreement and

to appear at the Final Approval Hearing; (c) is reasonable

and constitutes due, adequate, and sufficient notice to all

Persons and Businesses entitled to receive notice; and (d)

fulfills the requirements of the Federal Rules of Civil

Procedure, the Due Process Clause of the United States

Constitution, and the rules of the Court;

finally certify or confirm certification of

the Settlement Class under Federal Rule of Civil

Procedure 23, including finding that the Class

Representatives and Class Counsel adequately

represented the Settlement Class for purposes of

entering into and implementing the Settlement

Agreement;

dismiss the Action on the merits and

with prejudice, without fees or costs to any Party

except as provided in this Settlement Agreement;

incorporate the Release, make the

Release effective as of the Effective Date, and forever

discharge the Released Parties as set forth herein;

state that the Court’s final order shall

constitute a binding judicial declaration effectuating

a judicial compromise of any minor claim and, as

appropriate, any necessary approval under the Minor

Approval Process;

Pet. App. 858

Appendix QQ

authorize the Parties, without further

approval from the Court, to agree to and adopt such

amendments, modifications, and expansions of the

Settlement and its implementing documents

(including all Exhibits to this Settlement Agreement)

that

(a) shall be consistent in all material respects

with the Final Judgment; and (b) do not limit the

rights of Settlement Class Members; and

10.

without affecting the finality of the

Final Judgment for purposes of appeal, retain

jurisdiction as to all matters relating to

administration, consummation, enforcement and

interpretation of the Settlement Agreement and the

Final Judgment, and for any other necessary

purpose.

The Parties shall, in good faith,

cooperate, assist, and undertake all reasonable

actions and steps in order to accomplish these

required events on the schedule set by the Court,

subject to the terms of this Settlement Agreement.

The Final Approval Order shall provide

that the Action shall be dismissed with prejudice and

without costs, with the Court retaining jurisdiction

over the case for purposes of ensuring compliance

with the terms of this Settlement Agreement and any

order of the Court issued in connection therewith.

XI.

TERMINATION

Pet. App. 859

Appendix QQ

Plaintiffs and Norfolk Southern shall

each have the right to terminate the Settlement and

this Agreement, by providing written notice of their

election to do so (“Termination Notice”) to the other

Parties to this Agreement within thirty (30) days of

the Court’s final refusal to enter the Preliminary

Approval Order in any material respect; the Court’s

final refusal to approve the Settlement or any

material part thereof; the Court’s final refusal to

enter Final Approval in any material respect as to

the Settlement, including any final refusal under the

Minor Approval Process; or the date upon which the

Court’s Final Approval Order is modified or reversed

in any material respect by a final order of any

appellate court.

[*20*]

Any decision or proceeding, whether in

this Court or any appellate court, with respect to an

application for attorneys’ fees or reimbursement of

litigation expenses or with respect to any plan of

allocation shall not be considered material to the

Settlement, shall not affect the finality of any Final

Approval Order or Final Judgment, and shall not be

grounds for termination of the Settlement.

In addition to the grounds set forth

above, Norfolk Southern shall have the unilateral

right to terminate the Settlement under the

conditions set forth in Norfolk Southern’s

supplemental agreement with Plaintiffs (the

Pet. App. 860

Appendix QQ

“Supplemental Termination Agreement”), by serving

upon Class Counsel a notice of termination within

seven (7) days of its receipt from the Settlement

Administrator of the Claims Report specified in

Section V.D hereof, if the Settlement Class Members’

participation rates trigger the numerical thresholds

specified

the

Supplemental

Termination

Agreement.

The

Supplemental

Termination

Agreement, which is being executed concurrently

herewith, shall not be filed with the Court and its

terms shall not be disclosed in any other manner

(other than the statements herein and in the Notice,

to the extent necessary, or as otherwise provided in

the Supplemental Termination Agreement) unless

and until the Court otherwise directs or a dispute

arises between Plaintiffs and Norfolk Southern

concerning its interpretation or application, in which

event the Parties shall submit the Supplemental

Termination Agreement to the Court in camera and

request that the Court afford it confidential

treatment.

If (1) Norfolk Southern exercises its

right to terminate the Settlement as provided in this

Agreement, including the Supplemental Termination

Agreement referenced above; (2) Plaintiffs exercise

their right to terminate the Settlement as provided

in this Agreement; (3) the Court refuses to grant

Preliminary Approval or Final Approval of the

Settlement; or (4) the Effective Date as to the

Agreement otherwise fails to occur, then, except as

provided in Section III.B, the Settlement and the

Pet. App. 861

Appendix QQ

relevant portions of this Agreement shall be canceled

and terminated, Plaintiffs and Norfolk Southern

shall revert to their respective positions in the Action

as of April 26, 2024, and the terms and provisions of

this Agreement shall have no further force and effect

with respect to the Parties and shall not be used in

the Action or in any other proceeding for any

purpose, and any judgment or order entered by the

Court in accordance with the terms of this

Settlement, except for any order staying the Action,

shall be treated as vacated, nunc pro tunc.

XII.

SETTLEMENT FUND

In consideration of the settlement of the

Released Claims by the Settlement Class against

Norfolk Southern, Norfolk Southern shall pay the

amount of the Settlement Fund ($600,000,000.00).

The Settlement Fund is inclusive of Class Counsel’s

Fee Award, Administrative Deposit, Administrative

Expenses, and Service Awards, if any. The

Settlement Fund shall satisfy all monetary

obligations of Norfolk Southern under the Settlement

Agreement. In no event shall Norfolk Southern be

required to pay more than the amount of sixhundred-million dollars ($600,000,000.00).

[*21*]

Upon payment, the Settlement Fund

shall become a “qualified settlement fund,” as defined

in 26 C.F.R. § 1.468B-1. Class Counsel and/or the

Settlement Administrator shall establish an incomePet. App. 862

Appendix QQ

bearing account designated as a “qualified settlement

fund,” as defined in 26 C.F.R. § 1.468B-1, pursuant to

the Internal Revenue Code (the “Escrow Account”).

Neither the Parties nor the Settlement

Administrator shall take any position in any filing or

before any tax authority that is inconsistent with

treating the Settlement Fund as a “qualified

settlement fund,” as defined in 26 C.F.R. § 1.468B-1.

Norfolk Southern shall be the “transferor” and the

Settlement

Administrator

shall

the

“administrator” of the Settlement Fund within the

meaning of 26 C.F.R. §§ 1.468B-1(d)(1) and 1.468B2(k)(3), respectively. As a result, the Settlement

Administrator will be responsible for all tax paying,

filing, withholding and reporting obligations of the

“qualified settlement fund,” including without

limitation those arising from any payments made

from the Settlement Fund, including any reporting

required on IRS Form 1099, if any, for distributions

made from the Settlement Fund. The Parties agree

to take all necessary and reasonable actions to

qualify the Settlement Fund pursuant to the United

States Treasury Regulations.

Norfolk Southern shall have no

responsibility

liability

relating

the

administration, investment, or distribution of the

Settlement Fund, which shall be the sole

responsibility of Class Counsel and the Settlement

Administrator.

Pet. App. 863

Appendix QQ

Norfolk Southern shall pay the

Administrative Deposit of five million dollars

($5,000,000.00) into the Escrow Account within

fourteen (14) days after the grant of Preliminary

Approval by the Court.

Norfolk Souther

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