Case 1:18-cv-00039-JTN-SJB ECF No. 155, PageID.

2150 Filed 07/06/23 Page 1 of 5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
____________________

MICHIGAN DEPARTMENT OF Case No. 1-18-CV-39

ENVIRONMENTAL QUALITY,
Hon. Janet T. Neff
Plaintiff,

v.

WOLVERINE WORLD WIDE, INC.,

Defendant.

And

PLAINFIELD CHARTER TOWNSHIP and

ALGOMA TOWNSHIP

Intervening Plaintiffs,

v.

WOLVERINE WORLD WIDE, INC.,

Defendant, Third-Party Plaintiff,

v.

3M CORPORATION,

Third-Party Defendant.
_____________________________________/

WOLVERINE WORLD WIDE INC.’S

PRE-MOTION CONFERENCE REQUEST
Case 1:18-cv-00039-JTN-SJB ECF No. 155, PageID.2151 Filed 07/06/23 Page 2 of 5

Defendant Wolverine World Wide, Inc., intends to move for a declaration under Paragraph

1.3 of the Consent Decree (ECF No. 151 at PageID.1761), see 28 U.S.C. § 2201, that—by paying

the full costs of municipal water installation—it has satisfied its obligations to Plainfield Charter

Township under Paragraph 6.1(c) of the Consent Decree (ECF No. 151 at PageID.1774–1775),

and respectfully requests a pre-motion conference.

The Township sued Wolverine to extend municipal water.

The gravamen of the Township’s claim was that Wolverine should be compelled to pay for

installation of municipal water. (See ECF No. 99.) The Township cannot now dispute that if it

prevailed on that remedy question, it would have been entitled to injunctive relief (i.e., an order

requiring Wolverine to install municipal water) or compensatory relief (i.e., response costs actually

incurred by the Township in performing that work)—not a damages award on top.

Based on information from the Township, Wolverine believes it has already paid the

Township’s full costs to extend municipal water: approximately $42 million to connect over 1,000

homes in Plainfield and Algoma Township. The Township now seeks payment of nearly $20

million in addition to those actual costs—a result that would leave it better off than if it prevailed

on the remedy question.

The Consent Decree is a compromise of disputed claims, not an opportunity for a windfall.

Wolverine entered into the Consent Decree in compromise of disputed claims. (ECF No.

151 at PageID.1760). In that regard, Paragraph 6.1 sets out mutual obligations of the Township

and Wolverine. Paragraphs 6.1(a) and 6.1(b) require the Township to (a) extend municipal water

to listed parcels and (b) construct a granulated activated carbon filter and other improvements to

its municipal water system, respectively. In Paragraph 6.1(c), Wolverine stipulated “to fund the

costs of Plainfield’s obligations under Paragraphs 6.1(a) and 6.1(b) . . . subject to an aggregate

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cap of $69.5 million.” That aggregate cap is composed of $62 million for extending municipal

water and $7.5 million for the filter and other improvements. (See Consent Decree ¶ 6.1(c), ECF

No. 151 at PageID.1776.)

Paragraph 6.1(c) calls for twice-yearly municipal water payments through 2023, all but one

of which are for predetermined amounts. The final payment is for “whatever remains of the $62

million.”

The Township now insists that Wolverine’s final payment is not tied to the Township’s

costs to perform its obligations, but rather that Wolverine must pay a cumulative $62 million

regardless of the actual cost of extending municipal water. But the unambiguous language of the

Consent Decree controls, and under the plain language of Paragraph 6.1(c), Wolverine agreed “to

fund the costs of Plainfield’s obligations,” not to pay a predetermined damages award. And it

agreed to do so “subject to an aggregate cap.”

The Township’s other obligations under Paragraph 6.1 reinforce that plain language:

 Paragraph 6.1(c) requires the Township to “establish a segregated account for

Defendant to make payments hereunder and for Plainfield to pay contractors
performing work hereunder.”

 Paragraph 6.1(c) requires that “[a]t the end of each calendar year until all
obligations in Paragraph 6.1(a) are completed, Plainfield will provide Defendant
and MDEQ a statement verifying the activities completed that year.”

 Paragraph 6.1(c) requires the Township to return overpayments throughout the life
of Wolverine’s four-year funding obligation: “[u]ntil the end of 2023, if advanced
funds under Paragraph 6.1(a) or Paragraph 6.1(b) in any one year have not been
expended during that year, Plainfield will return the unexpended funds to the
Defendant for use in the year or years upcoming.”

 Paragraph 6.1(d) states that Wolverine’s “payment obligations under Paragraph

6.1(c) are incurred to obtain Plainfield’s performance as described above.”

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None of these provisions would make sense if Wolverine’s payment obligations were not tied to

the Township’s actual costs of “Extend[ing] Municipal Water” as the plain terms of Paragraph 6.1

require.

Wolverine has paid the Township’s full cost of extending municipal water.

Extension of municipal water in the affected area is expected to be complete this year, as

planned. Through the end of 2022, Wolverine provided funding to the Township in the cumulative

amount of $37,571,145, which Wolverine understands is the Township’s actual cost of extending

municipal water through the end of 2022.

Based on information from the Township, Wolverine also believes it has provided payment

in an amount sufficient to cover the Township’s costs of extending municipal water in 2023. On

June 7, 2023, Wolverine sent the Township a request for information asking the Township to

provide information regarding all 2023 costs, including not only bid award amounts but also (1)

certain carryover work the Township has identified from 2022 and (2) “soft” costs associated with

the Township’s expansion of municipal water—such as connection fees, administrative costs, and

engineering and legal fees. The Township provided bid award amounts ($4,081,573.50), but it has

not provided any information on any other costs for 2023.

On April 3, 2023, Wolverine gave the Township $4.7 million as required by Paragraph

6.1(c) of the Consent Decree. That payment exceeds the value of the awarded bids for 2023 by

$618,426.50. Accordingly, Wolverine believes its April 3 payment is sufficient to cover all of the

Township’s remaining costs to extend municipal water—including any 2022 carryover work and

other costs noted above. Yet the Township is demanding nearly $20 million more.

The Township and Wolverine are at an impasse, and Wolverine respectfully requests a pre-

motion conference regarding a declaration that no further payment is owed to the Township.

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Case 1:18-cv-00039-JTN-SJB ECF No. 155, PageID.2154 Filed 07/06/23 Page 5 of 5

Dated: July 6, 2023 s/ Scott M. Watson

John V. Byl (P35701)
Scott M. Watson (P70185)
Warner Norcross + Judd LLP
150 Ottawa Ave. NW, Ste. 1500
Grand Rapids, Michigan 49503-2487
616.752.2000

Attorneys for Defendant Wolverine World Wide.

Inc.

28823495