In re: DOW CORNING CORPORATION, Reorganized Debtor, LOU ANNE LAVENDER PERKINS v. Dcc Litigation Facility, Inc.

The Honorable William W Schwarzer, Senior United States District Judge for the*
Northern District of California, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0431n.06
Filed: July 18, 2008
No. 07-1585
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
In re: DOW CORNING CORPORATION,
Reorganized Debtor,
LOU ANNE LAVENDER PERKINS,
Plaintiff-Appellant
v.
DCC LITIGATION FACILITY, INC.
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
OPINION
BEFORE: MOORE and MCKEAGUE, Circuit Judges; SCHWARZER, District Judge.*
WILLIAM W SCHWARZER, District Judge. Lou Anne Lavender Perkins, a member
of a class of breast implant claimants, moved to opt out of the Settlement Facility–Dow Corning
Trust after the opt-out deadline had elapsed. Under the Amended Joint Plan of Reorganization
for Dow Corning Corporation, claimants had the option to settle or to elect to opt out of the
settlement under the Settlement Facility and proceed with litigation against the Litigation
Facility. Claimants electing to pursue litigation instead of participating in the settlement program

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“must make their election by completing, signing and returning the Participation Form to the
Claims Office on or before the six (6)-month anniversary of the Effective Date (“Election
Deadline”).” (Settlement Fund and Distribution Agreement, Annex A. Art.3.02(c)(v)). The
Election Deadline was November 29, 2004.
Perkins did not submit a participation form. In her motion, she argued that she never
received a form. However, a claim form packet was mailed to Perkins’ attorney at his last known
address and when it was returned as undeliverable, another packet was sent to Perkins at her last
known address, which again was returned as undeliverable. Perkins claims that she notified the
Settlement Facility of her address, but the only communication from her prior to the November
deadline was an e-mail addressed to the Tort Claimants’ Committee. Not until February 2005
did she contact the Settlement Facility to give her new address. In September 2005, she notified
the Settlement Facility of another new address but she never filed a claim form.
The District Court had jurisdiction under the Plan of Reorganization to resolve
controversies regarding the interpretation and implementation of the Plan. The Court denied
Perkins’ motion. It held that the plain and ordinary meaning of the word “must” as set forth in
the Plan is that claimants are required to affirmatively elect to litigate and to complete and return
the participation form by the election deadline, and that the requirement is mandatory and not
discretionary. The Court further found that the failure of Perkins and her attorneys to provide the
Settlement Facility with her current address did not constitute excusable neglect. We agree with
the District Court and adopt its well-reasoned opinion and order.
For the reasons stated, we AFFIRM the judgment of the district court.

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