FORT SMITH — Plaintiffs in one lawsuit have no standing to object to a proposed settlement in a separate class-action lawsuit, Whirlpool argued in a motion filed in U.S. District Court in Fort Smith.

FORT SMITH — Plaintiffs in one lawsuit have no standing to object to a proposed settlement in a separate class-action lawsuit, Whirlpool argued in a motion filed in U.S. District Court in Fort Smith.


A joint motion seeking settlement of the class-action complaint was filed in July. The original complaint was filed in Sebastian County Circuit Court in May 2013 and transferred to federal court the following month.


According to Whirlpool, which closed its Fort Smith plant in June 2012, a plume of trichloroethylene, or TCE, a known carcinogen, leaked into groundwater at the plant site, then later into a neighborhood to the north. TCE was used at Whirlpool as a degreasing solvent between the late 1960s and early 1980s, according to the company.


The complaint sought unspecified damages for nuisance, trespass, violations of the Arkansas Deceptive Trade Practices Act, accuses Whirlpool of fraudulent concealment and sought punitive damages.


Concerns of the contamination emerged after Whirlpool requested a ban on new wells around the site earlier in 2013.


U.S. District Court Judge P.K. Holmes III will make a preliminary finding on whether the settlement is fair. If Holmes determines it is, class members will be notified of a formal "fairness hearing," to provide an opportunity for argument and evidence to be presented in favor of and in opposition to the proposed settlement.


On Aug. 8, Holmes scheduled a hearing on the joint motion for Oct. 6 at 9 a.m.


A proposed schedule of events — assuming Holmes issues a favorable ruling — was also included in the settlement motion that details deadlines for: notification of class members, filing for attorney fees, opting out of the settlement, completion of appraisals, scheduling a fairness hearing and final approval.


Two additional lawsuits were filed May 23, 2013, in Sebastian County Circuit Court by Taylor Law Partners LLP of Fayetteville and McMath Woods P.A. of Little Rock — one on behalf of 10 homeowners, and the other, on behalf of landlords who own 36 properties in an area affected by the Whirlpool leak.


Those lawsuits were also transferred to federal court, consolidated into a single lawsuit Feb. 19 and seek damages similar to those sought in the class-action complaint.


On Sept. 12, Little Rock attorney Samuel Ledbetter filed an objection to the joint motion for settlement of the class-action complaint on behalf of the plaintiffs in the consolidated lawsuit.


Ledbetter argues the proposal is a great deal for Whirlpool and Rogers attorney Kenneth Shemin, counsel for plaintiffs in the class action, but Ledbetter’s clients as likely members of the class are losers in a deal that provides a one-time payment to property owners based on flawed valuation methodology and requires their property be encumbered in perpetuity by Whirlpool, with the likelihood it will never be cleaned up.


The class-action complaint sought damages for "the reasonable expense of necessary repairs and restoration of the property which was damaged, plus the difference in the value of the property before contamination and the value after restoration," damages for the loss of enjoyment and use of their properties, and punitive damages.


Last summer, Sebastian County Assessor Becky Yandell reduced the value of properties in and around the contaminated area 25 percent to 75 percent. The contaminated area includes a total of 55 parcels, Yandell said. Three are commercial properties, while 17 are homes in which the owners live. More than 30 are rental properties.


The proposed settlement calls for:


• Property owners inside the area bounded by Ingersoll Avenue, Brazil Avenue, Jenny Lind Road and Ferguson Street will receive compensation in an amount equal to devaluation of those properties estimated by the county assessor’s office or determined by an agree-upon independent property appraiser.


• Class members outside the bounded area whose property value was diminished by the contamination will receive $5,000, and possibly more in the future, if TCE is detected above threshold levels in groundwater beneath their property.


In return, Whirlpool wants a well-drilling ban and access agreements on the properties.


Ledbetter argues in length and detail that the proposed settlement fails the legal standard that it be "fair, adequate and reasonable" and excludes multiple categories of damages.


Ledbetter also argues the the proposed class is fatally flawed and should be rejected.


Shemin hasn’t yet filed a response and couldn’t be immediately reached for comment, but South Carolina attorney Robert Brunson, representing Whirlpool, filed a response Monday.


Brunson argues Ledbetter’s objection is untimely, because federal rules of civil procedure don’t allow him to object until the proposed class settlement is granted preliminary approval by the court, class notice is completed and the deadline for opting out of the settlement passes.


Further, Brunson argues that Ledbetter claims most if not all of his clients would opt out of the proposed settlement if it’s approved by the court. Potential members of a class action that opt out of a settlement have no standing to then challenge the court’s approval of it, Brunson tells the court.


Ledbetter’s client are seeking to opt out of the settlement and at the same time derail it so Shemin’s clients won’t benefit from it, Brunson said in his response.


If the court doesn’t dismiss Ledbetter’s objection, Brunson argues it should at least defer action on it until after the deadline to opt out passes.


Brunson also rejects Ledbetter’s argument the proposed settlement is unfair, inadequate and unreasonable.


A trial in the case for Ledbetter’s clients remains set for July 6, 2015.