Seth A. Katz

Lonnie and Dave Miller lived on East Clark Street in East Palestine, Ohio, 1,800 feet from “ground zero.” At about 8:54 on the night of February 3, 2023, a Norfolk Southern freight train derailed there. About 38 railcars left the track and 20 were damaged, several of them carrying hazardous industrial materials. Three days later, on the decision of the local incident commander, Norfolk Southern vented and burned five tank cars of vinyl chloride. “I stand in my driveway and I see a blue sky, but those fires are still there in my mind,” Lonnie Miller said in April 2024. In the months after the derailment she had crushing headaches and nosebleeds, and the couple doubted the safety of the house. They took out a mortgage on a home in Leetonia, 15 miles away, put East Clark Street on the market, lowered the price twice, and accepted an offer lower still. With that sale not yet final, they were paying insurance and electric bills on both houses; the Leetonia house needed a roof and possibly a furnace, and they had heated it through the winter with a wood stove. “We’re starting over again,” she said. “We’ve got a debt we didn’t have 15 months ago. But we’ve kept our family safe, away from the chemicals.”

That April, Norfolk Southern agreed to pay $600 million to settle the consolidated class action brought for households and businesses within 20 miles of the derailment. Miller distrusted the timing. She had testified about the derailment in late March at a hearing in Darlington, Pennsylvania, led by state Sen. Doug Mastriano. The National Transportation Safety Board had not finished its investigation; its final board meeting on the derailment was set for June 25. “I think they’re just trying to get rid of this before the final report comes out,” she said. “I think they know so much more damning information will be released.”

Seth A. Katz, a shareholder at Burg Simpson Eldredge Hersh & Jardine in Englewood, Colorado, had been one of the court-appointed co-lead counsel in the case for a year when the agreement was reached. At a Zoom news conference on April 10, the day after the settlement was announced, he answered the residents’ criticism. “We understand that perspective,” he said, and he asked them to work through the process with class counsel and learn more before deciding whether the settlement was right for them. The plaintiffs who had brought the case, he said, had been consulted and advised along the way: “they are all very happy with the outcome. They understand how we got here.”

When he and his co-counsel asked Judge Benita Y. Pearson of the Northern District of Ohio to approve the agreement, they relied on evidence the plaintiffs had gathered themselves, beginning with environmental samples taken under a protocol Katz and co-lead counsel M. Elizabeth Graham negotiated with the defendants. Over the next two years they defended the settlement at a fairness hearing and in the Sixth Circuit, had Pearson replace a settlement administrator that had miscalculated payments, and saw Direct Payment awards mailed to households on June 30, 2026.

A Suit From East Clark Street

The first lawsuit came from the Millers’ street. On Tuesday, February 7, 2023, the day after the burn, David J. and Susan E. Scheufele of East Clark Street, who had been forced from their home in the evacuation, sued Norfolk Southern in federal court together with Harold R. Feezle, the owner of Rollerena Auto Sales at 50263 State Route 14. Feezle, their complaint said, “was forced to close his business during the time of the forced evacuation.” The suit, filed by Neal Shapero of Cleveland, asked for orders preserving the crash-site property needed to find the cause and barring the railroad from getting the plaintiffs to sign releases. Two days later Burg Simpson and Grant & Eisenhofer filed a class action of their own for residents and businesses in an area that reached across the state line into Pennsylvania.

By the end of February the wreckage itself was in dispute. Norfolk Southern planned to move 11 railcars by March 1 and offered residents’ lawyers two days to inspect them; in a February 23 letter it told them that after March 1 the cars would be removed or destroyed so work at the site could continue. Adam Gomez, a lawyer for East Palestine residents, asked Pearson to keep the wreckage in place, which he called “common sense.” Within days the parties had a written arrangement. Plaintiffs’ experts would examine the railcars and collect soil and water samples, along with wipe samples from surfaces that “may have come in contact with spilled and burned chemicals”; Norfolk Southern would take samples of its own; and when the railroad pulled up Main Track 1 and Main Track 2, the plaintiffs’ experts could sample the ground beneath them. The plaintiffs named in that filing included David Anderson of Echo Valley Road in New Galilee, Pennsylvania, 8.5 miles from East Palestine, and the Valley View mobile home park on the same road, which said it had “suffered a loss of business income and goodwill.”

Pearson, meanwhile, had asked the lawyers on February 8 for a joint motion on consolidating the cases, and she wanted a proposed “class counsel organizational structure” by March 15. The joint filing came back over the signatures of Jayne Conroy of Simmons Hanly Conroy, Katz, Graham of Grant & Eisenhofer, and T. Michael Morgan of Morgan & Morgan. The plaintiffs in all but one of the 22 suits then pending agreed to consolidate, and so did Norfolk Southern. The lawyers told Pearson that the parties’ “good-faith efforts” had kept the cleanup moving without delays for the collection of litigation samples. Main Track 1 had been lifted and samples collected.

By April 10, 2023, more than 30 federal lawsuits over the derailment had been consolidated in Youngstown as In re East Palestine Train Derailment, No. 4:23-cv-00242, before Judge Pearson. In an order of April 5, she appointed Katz, Graham and Conroy as interim class counsel and co-lead counsel, and Morgan as a fourth co-lead counsel, writing that “the appointment of interim class counsel is critically important in a case of this nature.” The group carried Harold Feezle’s name: the Feezle Leadership Group. When Pearson preliminarily approved the settlement in May 2024, she appointed Katz, Conroy and Graham lead class counsel.

A Sampling Protocol Negotiated With the Defendants

The plaintiffs built their contamination proof themselves. Early in the case Katz and Graham negotiated a sampling protocol with the defendants, and class counsel then ran an environmental sampling and testing program at about 160 sites in and around East Palestine, some as far as 45 miles from the derailment site. Class counsel later told Pearson, with Katz’s declaration as support, that they had spent significant time and resources on the soil-sampling program and that lawyers from their firms were present for every sample collected. The plaintiffs’ experts relied on that data in determining chemical exposure. One of them, Dr. Richard J. Schuhmann, compared the soil results against background levels of dioxins and furans.

Norfolk Southern produced more than 720,000 documents in discovery, and the non-plaintiffs together produced more than 1,345,000. Class counsel took or participated in about 70 depositions and defended the depositions of all 16 proposed class representatives. They litigated discovery disputes with the National Transportation Safety Board to make sure that critical evidence from the derailment site was obtained and preserved. They retained experts in air modeling, source-term calculation, chemistry, meteorology, toxicology, epidemiology, environmental remediation, geology, hydrology, medical monitoring, industrial hygiene, pulmonology, oncology, the diminished value of real property, forensic accounting for business losses, and population modeling. Fact discovery closed on February 5, 2024. Burg Simpson, Katz’s firm, managed the class cost fund that paid for the work, and by September 2024 class counsel had recorded more than 59,000 hours on the case.

The 16 class representatives bore much of that discovery for the rest of the class. They included Susan Scheufele and Harold Feezle from the first suit and Feezle’s Rollerena Auto Sales; David Anderson and Valley View MPH LLC; Rosemary and Charles Mozuch; and the Competition & Luxury Vehicle Club of Darlington. Some testified as the designated witnesses for their businesses. They opened their homes and property to inspection, searched for and produced documents, kept in regular contact with counsel, and reviewed and approved the proposed settlement. “Their work was a critical part of securing the benefits to the Class,” Pearson wrote. Katz described them to residents at the Columbiana Theater in April 2024: “There was a group of class representatives who participated in the litigation, who sat through depositions, had their lives turned upside down and collected documents so that not everybody had to.”

Norfolk Southern’s Preemption Defense

Norfolk Southern moved to dismiss about four months after the derailment, calling the class complaint “strikingly—and fatally—threadbare.” The first car to derail did not belong to it, the railroad said, and it had not built the wheel bearing alleged to have overheated; it denied failing to preserve evidence, saying cab video had been lost to “automated deletion protocols.” It argued that federal law, including the Federal Railroad Safety Act and the Hazardous Materials Transportation Act, preempted the residents’ state-law claims of negligence, nuisance and strict liability. The railroad also filed a third-party complaint against Oxy Vinyls, GATX, General American and Trinity Industries Leasing, blaming the bearing’s failure on the car owners’ failure to move car 23 every six months; it cited the bearing manual’s instruction that a parked car “should be moved one car length every six months to distribute lubricant over the bearing surfaces.”

The class complaint carried the plaintiffs’ own account of car 23. It alleged that the car, owned by General American or GATX, had sat motionless for 565 days ending in August 2018 and again for 206 days ending in May 2019, and it alleged that the railroad’s “flagrant disregard for safety and the resulting consequences” coincided with its 2019 adoption of “Precision Scheduled Railroading.” It pleaded 17 claims against Norfolk Southern for proposed classes of “upwards of 500,000 Class Members” in three states within 30 miles of the wreck. Melanie Bailey, a Burg Simpson shareholder working with Katz, co-chaired the plaintiffs’ law and briefing committee, and the firm opposed the motions to dismiss.

Pearson ruled on March 13, 2024. Where the residents’ claims sought to enforce duties that federal regulations set, she held, “they are not preempted under either the FRSA or the HMTA,” and their negligence, gross negligence, nuisance and trespass claims went forward against the railroad. In her fee order six months later she counted federal preemption among the case’s “several novel legal issues.”

The parties mediated before retired U.S. District Judge Layn R. Phillips in October 2023 and again on February 19, 2024, in three full-day, in-person sessions, and they held numerous settlement discussions by telephone on their own. On April 6 they accepted his recommendation for settlement, before the experts’ reports were finalized and due to be exchanged. The parties wrote into the agreement that “Depositions and discovery confirm the ‘impact zone’ that is reflected in the Settlement Agreement.” Norfolk Southern admitted no liability or wrongdoing. Announcing the deal on April 9, class counsel said, “This resolution comes shortly after the one-year anniversary of the disaster,” and called it “a fair, reasonable and adequate result for the community.”

Points, Miles and a Release

The settlement paid by distance and by household. Its class reached people who lived, worked, owned property or ran a business within 20 miles of the derailment. Direct Payments were calculated in points: each household started at 100, and multipliers raised or lowered the total for location, displacement, household composition, acreage and other factors. Businesses could claim their losses separately. A third program offered optional payments to class members within 10 miles of the derailment who voluntarily agreed to release any personal-injury claims they might have in connection with it. No proof of injury was required to take part, and those payments were to be allocated by court-approved criteria such as the nature of any physical injury and any resulting medical treatment.

On April 15, 2024, Katz took the plan to residents at the Columbiana Theater, where he told the audience that the next step was a motion to convince the federal court in Youngstown that the $600 million settlement was “fair, reasonable and adequate.” “There has been misreporting that you just take the $600 million and divide it by the number of people that live in the 20-mile radius and that couldn’t be further from the truth,” he said. He explained that people who lived and worked closer to the derailment site would be awarded more than someone at the twentieth mile. About the personal-injury payments he was plain: “If you get an award in the settlement that falls into this bucket, you can use the money for whatever you want, but the claims that are being asserted against Norfolk Southern are being released. That means they are going to pay this money and that’s it.” Claimants would not have to prove what a lawsuit demands, which he listed as “the liability, damages, causation.” “The level of proof is well, well, well below what you would need to prove in a lawsuit,” he said. “We don’t have to do that here and you will not have to do that as well as part of the claim form.”

Mikal Watts of East Palestine Justice, who shared the stage with Katz, described the litigation risk to the same audience. “The liability evidence is really strong,” Watts said. “One of the strongest liability cases we’ve ever seen. The damages evidence with respect to personal injury for most of you is not strong. It makes the best recovery achievable for property damage, a loss of value of your real estate, the cost to clean-up versus recovering a bunch of money for a potential cancer that may or may not come.”

What the NTSB Found in June 2024

On June 25, 2024, at a public meeting in East Palestine, the NTSB announced its findings. A defective wheel bearing on a hopper car had failed and overheated. The crew received no hot-bearing warning until the train passed a detector in East Palestine, when the bearing was about to cause its axle to fail. An earlier detector near Salem, Ohio, had read the bearing on car 23 at 103 degrees, and the Norfolk Southern analyst who received that alarm treated it as noncritical, because the railroad’s policy called for stopping a train to inspect at 115 degrees. The detector near East Palestine registered 253 degrees, and the crew began braking at 42 mph. At about 9 p.m. the incident commander called Norfolk Southern’s Atlanta center to ask about the hazardous materials aboard; the person who answered said they would check and never called back. About 2,000 residents were told to shelter in place and then, around 11 p.m., to evacuate.

The board found that the vent and burn “was not necessary to prevent a tank car failure,” and that the incident commander’s decision to conduct it rested on “incomplete and misleading information provided by Norfolk Southern officials and contractors.” Norfolk Southern had rejected three other ways of removing the vinyl chloride and had begun planning a vent and burn shortly after the derailment. NTSB Chair Jennifer Homendy apologized to the town on the agency’s behalf and said that “the absence of a fatality or injury doesn’t mean the presence of safety.”

Homendy had said much of this in public a month before the settlement. Questioned by Ohio Sen. J.D. Vance before the Senate Commerce Committee on March 6, 2024, she testified that the temperature in the car had “stabilized well, well before the vent and burn. Many hours before.” The polymerization Norfolk Southern and its contractor cited, she said, would have required “rapidly increasing temperatures and some sort of infusion of oxygen, neither of which occurred.” Oxy Vinyls representatives at the scene, she said, “were left out of the room.” “The incident commander didn’t even know they existed.”

Katz addressed the concern about the settlement’s timing on August 1, 2024, at a Zoom town hall for class members led by Village Manager Chad Edwards, where Katz, Graham and attorneys Adam Gomez and Michelle Kranz spoke. Katz called the NTSB’s findings “not news to us,” and said the board had relied on some of the information obtained through the class action’s discovery in reaching its June conclusions. He also explained that the NTSB’s report could not be used as evidence because it was “not admissible” in court. “This is the largest settlement involving a railroad of any sort in this country,” he said. “But we want to remind you that if you have not opted out, you must fill out a claim to receive any compensation.” The deadline to file was August 22.

The Fairness Hearing Before Judge Pearson

Residents filed more than 54,000 claims. About 28.1 percent of the households within 20 miles filed, and about 80 percent of the homes within two miles of the site. Only 370 households and 47 businesses opted out.

Eighty-four class members filed timely objections. They argued that class counsel had not gathered enough evidence before settling, that payments went to households rather than individuals, that class members could not learn their exact awards before the opt-out deadline, that awards were reduced by money Norfolk Southern had already paid, that the personal-injury payments were too low and too binding, that the settlement did too little for emotional injury and medical monitoring, that the release reached too many parties, and that the fees were too high. At the fairness hearing on September 25, 2024, Graham answered the first of those objections. “So I can tell the Court, as you may recall, we had a sampling protocol that Mr. Katz and I negotiated early on with the Defendants, and we adhered to it,” she said. “We didn’t rely on EPA data. We went out and we did our own testing. We did split samples. We eliminated background levels. We did everything that we were supposed to do.”

On September 27, 2024, Pearson overruled every objection and found the settlement “fair, reasonable, and adequate.” She found that it “was vigorously negotiated, conducted at arm’s length, entered in good faith, and is free of fraud or collusion,” and wrote that “Class Counsel has engaged in extensive discovery, robust litigation, and negotiated this Settlement over the course of several months.” Class members, she found, overwhelmingly supported the settlement. The same day she awarded class counsel $162 million in fees, 27 percent of the fund, and $18 million in litigation expenses, and awarded $15,000 to each class representative.

An $850,000 Bond and a Motion Filed One Day Late

Five class members appealed to the Sixth Circuit. Their appeals held up the Direct Payments and the business-loss payments, though not the personal-injury payments. On January 16, 2025, Pearson ordered the objectors to post an $850,000 appeal bond, $170,000 apiece, by January 30: $825,000 for the settlement-administration costs their delay would cause and $25,000 in taxable costs. They did not pay. Their motion for more time to appeal the bond order came one day after the deadline for such a motion had passed, and Pearson denied it. Katz and his co-class counsel, who led the response to the appeals, moved to dismiss the objectors’ settlement appeals for failure to pay the bond.

On November 5, 2025, a Sixth Circuit panel of Judges Thapar, Readler and Hermandorfer dismissed the appeals. “A set of objectors to a class-action settlement are over eight months late in paying an $850,000 appeal bond,” Judge Thapar wrote for the panel. “Because they’re a day late, we can’t hear their reasons for being $850,000 short.” The deadline was jurisdictional: “It doesn’t matter whether the motion to extend was one day, one hour, or one minute late.” On the settlement appeals, the panel weighed the harm of delay, the objectors’ excuse and their chance of success. The appeals had delayed payment to about 55,000 claimants, and the panel found that the delay posed “overwhelming prejudice by endangering residents’ health and the community’s financial stability.” The objectors had no valid justification for failing to pay the bond, and they were unlikely to succeed on the merits.

One of the objectors’ merits challenges went to the evidence Katz and Graham had built. “The gist of their argument is that the district court and class counsel failed to review, credit, and disseminate expert declarations and soil-sampling data,” the panel wrote. Its answer was that “the class members’ expert reviewed the environmental data and reached an informed conclusion about the levels of toxicity in the soil.” “The existence of contradictory evidence from the objectors’ private report does little to undermine the conclusions of the parties’ expert.” Settling had been “particularly sensible,” the panel said, because more litigation would have delayed residents’ resettlement payments with no certainty of a larger award. The panel described the settlement’s origin in one sentence: “After months of exhaustive discovery, motions, and mediation, the railroad agreed to pay $600 million to the class.” On March 2, 2026, the Supreme Court denied the objectors’ petition.

From the Bronx to the Pradaxa Settlement Program

Katz came to the case from pharmaceutical and medical-device litigation, and he had helped administer a settlement before. Born in New York City, he graduated from the University of Michigan in 1990 and, cum laude, from Boston University School of Law in 1993. As an assistant district attorney in Bronx County he prosecuted cases that ran from drunk driving and robbery to drug dealing and gang killings. He practiced at Loeb & Loeb in New York, became a partner at Seeger Weiss, and joined Burg Simpson in September 2005; he heads the firm’s mass tort and class action practice group. In the federal multidistrict litigation over Pradaxa, where he was co-lead counsel, he was one of the primary negotiators of a $650 million settlement program announced in May 2014 for about 4,000 claimants after 21 months of litigation, and he took an active part in administering it, including the resolution of private and government medical liens. He was also one of a small team of lawyers who negotiated a $143 million class settlement in the Columbia Gas explosion cases in Massachusetts.

Replacing Kroll

The personal-injury payments went forward during the appeals, and Kroll Settlement Administration, the administrator Pearson had appointed in May 2024, began disbursing them. Class counsel received complaints about the timing of payments and found errors in the calculations. Katz signed a declaration on June 10, 2025, and the next day Pearson suspended and terminated Kroll and appointed Epiq Class Action & Claims Solutions as substitute administrator. She found sufficient reason to believe that Kroll had failed to calculate the actual dollar value of each point in the Voluntary Exposure program before disbursing payments, had not adhered to the distinction between the Village of East Palestine and the larger area of the 44413 ZIP code, and had overpaid some class members’ claims “to the detriment of other participating Class Members and the Qualified Settlement Fund.” She directed class counsel to engage an auditor. “We are devastated that our hard work to achieve a $600M settlement remains unfulfilled,” Conroy, Graham and Katz said in a joint statement. “As a result, we believe we have no choice but to audit these calculations.”

In October 2025, Graham, Katz and Conroy asked Pearson to order Kroll to show cause why it should not be held in contempt. “Kroll inexplicably ignored the concept of points entirely,” they wrote. Their motion counted at least $17,249,717.45 in overpayments, almost 1,000 claims wrongly rejected as outside the eligible area, and almost 2,500 claims carrying scores that could not exist under the Plan of Distribution. After a hearing on December 5, class counsel and Kroll resolved the dispute. Kroll agreed to pay $17.25 million to the settlement class, to be deposited in a qualified settlement fund for the personal-injury program; Pearson approved the agreement and ordered the payment by December 26, and the show-cause proceedings were dismissed with prejudice.

$643.47 a Point, Mailed June 30, 2026

After the Sixth Circuit ruled, Pearson scheduled a telephone conference for November 13, 2025, to discuss distributing the money. In the last days of December, Epiq mailed partial personal-injury awards to class members with valid, timely claims who had not been paid before, and it expected to pay the rest of the approved personal-injury claims by March 31, 2026.

With the Supreme Court’s denial, the Direct Payments could go out. On June 30, 2026, Epiq mailed the Direct Payment awards at a final value of $643.47 per point, less some or all of any payments the household had received from Norfolk Southern, as the Plan of Distribution required. In Epiq’s worked examples, a family of four living beside the tracks that relocated permanently came to $71,335.08: two adults and two children who owned their place on 0.55 acres and moved 12 miles away, with multipliers of 1.10 for the trackside location and 1.15 for the permanent move. A family of two in the Village displaced for three days, one adult and one child renting an apartment, came to $24,040.84; a family of four 4.1 miles away that was not displaced, $6,384.83; and a family of six 13.8 miles away, $292.01. Business-loss awards were expected to be mailed later in 2026. Personal-injury payments to minors, to deceased or incapacitated claimants, and through powers of attorney had not been mailed while Epiq sought the necessary approvals.