                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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,                         )
                                                   )   ON APPEAL FROM THE UNITED
LOU ANNE LAVENDER PERKINS,                         )   STATES DISTRICT COURT FOR THE
                                                   )   EASTERN DISTRICT OF MICHIGAN
       Plaintiff-Appellant                         )
                                                   )   OPINION
v.                                                 )
                                                   )
DCC LITIGATION FACILITY, INC.                      )

       Defendant-Appellee.




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




       *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
“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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