EAST PALESTINE — The audit and review of the now-removed settlement administrator Kroll which mishandled the distribution of funds from last year’s class action derailment settlement is taking longer than expected — so is the restarting of payments that were initially promised within 30 days over a year ago.

As residents still awaiting compensation of up to $25,000 per person from the personal injury fund (also known as Voluntary Exposure Payment) set aside from the $600 million settlement are left in the dark as to when they can expect a check, the latest documents filed by class counsel offer more details on what went wrong to delay payments in the first place.

The document was filed last week to amend the court’s prior orders and restructure the process for a show cause order against Kroll and requests that civil contempt action against Kroll Settlement Administration be pursued in two phases.

Initially, class counsel accused Kroll of overpaying some class members. That proved to be the catalyst in Kroll’s removal, but it’s more complicated than that, according to class counsel’s latest filing.

“Kroll’s errors and failures to follow the court’s order go far beyond mathematical errors – by way of example they run as deep as improper denial of claims, errors in Kroll’s underlying data, and applying multipliers that are not contained in the court’s order requiring Kroll to follow the Plan of Distribution,” the filing said. “Unfortunately, because the review process continues to uncover additional errors by Kroll and multiple failures to follow the court’s order, the process of reviewing Kroll’s work is taking longer than anticipated and longer than the parties want. However, it is critical that the review and audit be done correctly even if this results in the process taking longer.”

The Plan of Distribution called for an allocated point system to be used in determining individual awards. That point-system took in a long list of weighted factors, including distance from the derailment site, age of claimant and severity of symptoms reported.

The same week that Kroll was removed, many class members – including first responders who battled the chemical blaze – received notification that claims for personal injury were denied.

Meanwhile, other class members reported missing paperwork and in some cases Kroll having no record they filed at all.

Co-counsel requested that federal judge Benita Pearson remove Kroll and name Epiq as the new settlement administrator in June. Pearson did just that and by doing so, pressed pause on the payments. Pearson’s ruling ordered Kroll to transfer all available data, administration-related materials and case reports to Epiq as well as access to the settlement fund established by Kroll at Huntington Bank. She also ordered a third-party audit of Kroll’s performance and conduct. That audit was expected to take 60 days and to be submitted to the court when completed.

Payments will not resume until that process is complete, and it now seems the 60-day timeframe was another overpromise to the residents who were told payout would be quick and that the deal meant “fair compensation now” when opting in to the settlement.

The latest filing by class counsel recognizes the residents’ frustration and the two-phase request is an attempt to expedite an already prolonged process.

The first phase permits class counsel to file a motion to compel Kroll to show cause why it should not be held in contempt prior to the audit being completed and provided to the court. The second phase is a motion for sanctions after the audit is submitted.

“Class Counsel understands that those class members who submitted Voluntary Exposure Payment claim forms are waiting for information related to the reason that the claims process is being delayed,” last week’s filing stated. “Class counsel respectfully submits that proceeding in this two-step fashion will provide the community with valuable information about what is being done by Epiq and Class Counsel to make sure everyone, including the court, can rely on the accuracy of the claims process.”

The sanctions are likely to recover any fees paid to Kroll and an additional dollar amount that reflects “Kroll’s failure to follow the court’s order has resulted in harm to the class.” Kroll had billed $2,361,940.74 for administrative expenses and estimated that it would bill $14.6 million more to complete administration of the settlement in August 2024.

Class counsel also asked that Kroll be compelled to provide to the court with claim forms it processed and paid.

“In order to provide the court with the requisite details about Kroll’s failures to follow the court’s order it is required that examples be provided, examples of actual claims submitted and reviewed by Kroll, to the court,” class counsel wrote.