ST. LOUIS (Legal Newsline) – A U.S. district judge on May 25 approved a settlement in a class action lawsuit against Monsanto over the herbicide Roundup, but one class member is challenging it by arguing the plaintiffs attorneys are selling out Californians in order to reap millions in attorneys fees.
Judge Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri approved a $21.5 million settlement that included attorneys fees of $6 million, as well as approximately $3.9 million remaining in the common fund to cover any unexpected administration and litigation costs with cy pres distributions of unclaimed class action settlement funds.
The judge also said that the court will order that 50 percent of the funds available for cy pres distribution be paid to the National Consumer Law Center and 50 percent paid to the Better Business Bureau’s National Advertising Division.
But one of the plaintiffs, James Migliaccio from California, has objected and filed an appeal with the U.S. Court of Appeals for the Eighth Circuit.
He says the settlement will only provide around $13 million to members of the class, which is $22 million less than the damages asserted by California plaintiffs.
"It appears class counsel settled for pennies on the dollar because they believed the case could not be certified on a nationwide basis," Miglaccio's objection says.
Miglaccio says there are 51,000 California plaintiffs who should not be lumped in with class members from other states.
He also says dividing the amount going to the attorneys by the hours they say they spent working on the case (1,700) results in an average billing rate of $4,169 per hour.
"Suffice it to say, any type of lodestar cross-check will expose a substantial windfall."
In his March objection to the settlement, he alleged the settlement was inadequate for California class members "who are positioned for a greater recovery than members from other states."
The class action was filed on April 5, 2017. The plaintiffs alleged that Monsanto engaged in misleading practices by overstating on several of its Roundup concentrate products’ labels about the number of gallons of spray solution the concentrates would make in violation of the Missouri Merchandising Practices Act.
The plaintiffs, who were purchasers of the products, sought damages.
Another class action alleging the same charges against Monsanto and its Roundup product was filed in the U.S. District Court for the Central District of California in 2016. On Aug. 22, 2017, in light of a tentative nationwide settlement, the parties in that case jointly requested that their lawsuit be transferred to the Missouri court, and on Aug. 23, the California district court granted the motion.
Upon transfer to this court, the California suit was provisionally consolidated with Rawa v. Monsanto Co. and on Sept. 22, 2017, an amended consolidated class action complaint was filed in the Missouri court.
"Meanwhile, according to plaintiffs’ counsel’s declaration dated Oct. 4, 2017, nine related actions were filed in other states. After the nationwide settlement agreement was reached, plaintiffs attorneys reached out to each of the plaintiffs in the nine related actions. All agreed that the nationwide settlement was strong and worth supporting. Thus, each of these plaintiffs was referred to plaintiffs’ counsel, to be added to the consolidated complaint, and their original actions were dismissed," the motion states.
As stated in the opinion, "the consolidated complaint alleges that class members would have paid from 40 percent to 50 percent less for the concentrate products had they paid the market price for the number of gallons of spray solution actually received."
The 12 representative plaintiffs are from 10 states: Missouri, California, Illinois, Kentucky, Colorado, North Carolina, Indiana, Georgia, Tennessee and Pennsylvania.