At the last hearing on issues connected to the tobacco settlement, lawyers representing the Quebec class action signalled that they would be proposing steps to accelerate payments to members of that class, including providing legal cover to the firm which is managing the payout of claims.
Their proposals were circulated as a formal motion to the court earlier this week. The motion and the accompanying affidavit provides a readable summary of events to date, as well as insight into the challenges faced in implementing this historic class action suit.
A court date to address this request has not been set.
Status quo: No one gets paid until there is a decision on all cases.
If granted, this motion will have an immediate impact on the 10,710 Quebecers whose claim for compensation have been accepted, and on each successful claimant as their case is processed and approved. Eligible members would receive a cheque for 50% of the maximum compensation authorized in the settlement plan. If the request is denied, no claim will be paid out until all have been processed.
Although the settlement plan identified the maximum payments for each compensatable disease (ranging from $24k to $100k), the amount available to pay those claims is finate ($3.22 billion). As a result, claimants will receive a fraction of the maximum amount with the proportion established by dividing the amount available by the total number of eligible claims. This calculation can only be made once the number of eligible claims is known.
With money sitting in a trust account, lawyers representing these victims argue that it is unreasonable and unnecessary to deny partial payments, especially given the length of time that the victims have been waiting (eligible claims must are for diseases which were diagnosed 14 or more years ago). "Requiring Eligible Blais Class Members to wait until all remaining claims have been processed, supplemented, reviewed and adjudicated serves no substantive purpose where sufficient funds are available to make a meaningful interim distribution while preserving an appropriate reserve."
A peek behind the curtain.
More than a year has passed since the settlement was finalized and two months since the claim period for members of the Quebec class ended. (Members of the Pan Canadian class have another 10 months).
The motion describes the significant support that claimants have received in documenting their case. The Quebec class action legal team paid for a firm specializing in processing claims to help assemble documentation regarding the medical diagnosis and to successors to demonstrate their estate entitlements. This was no small effort: a "team of 150 agents, paralegals and notaries worked directly with approximately 76,000 claimants to help them assemble the strongest possible claims." Help came also from other quarters -- like Santé Québec, whose medical archivists were engaged in locating and providing proof of diagnosis.
Despite these efforts, many claims are still missing some paperwork -- about a quarter (20,000) have not yet received medical records from the Quebec health agency, and about one fifth (17,000) are still missing information clarifying inheritability or other issues.
Most class action members availed themselves of this service, but some submitted their claims without such assistance. Of the 35,000 such claims received by the firm which administers the claims (EPIQ), about 26,000 have been flagged as likely attempts at fraud, with 9,000 legitimate claims seeking eligibility. (Coincidentally, the Globe and Mail recently reported on the vulnerability of class action claims process to fraud.)
On the basis of information in this motion, it would appear there were about 111,000 claims filed before the deadline of which about 10% (10,710) have been approved by EPIC to date.
Not all of those claims will succeed. Those assisting claimants cast their professional eye on the likelihood of success in receiving compensation and estimate that about 1 in 10 cancer claims will fail, as will 30% of claims related to emphysema.
The figure below did not appear in the motion, but summarizes information and estimates provided within it. Of the 111,000 claims, 63% (70,000) are expected to succeed, with 14% (16,000) legitimate but failed claims and 23% (26,000) fraudulent attempts.
These estimates support the viability of providing 50% interim payments without surpassing available funds.
