SAN FRANCISCO (Legal Newsline) - Plaintiff lawyers leading multidistrict litigation against Bayer AG over its Roundup herbicide are scheduled to face off against dissident lawyers in federal court in California tomorrow as a judge hears arguments for and against an 8.5% “common benefit” fee that opponents call an $800 million “money grab.”
The fees would come off the top of the nearly $11 billion Bayer has offered to settle thousands of lawsuits claiming Roundup causes non-Hodgkin’s lymphoma, a common cancer of the lymphatic system. Both Bayer and regulators in the U.S. and most other countries consider Roundup and its main ingredient, glyphosate, to be safe, but plaintiff lawyers in the U.S. have won several large court victories based on testimony of their own experts who maintain glyphosate causes cancer.
As is typical in multidistrict litigation, plaintiff lawyers who led the settlement negotiations – including The Miller Law Firm, Weitz & Luxenberg and Aimee Wagstaff -- have asked U.S. District Judge Vince Chhabria to set aside fees from any settlements in state or federal courts to compensate them for work they did on the case that benefited all litigants. That work includes gathering evidence and taking depositions of witnesses at Bayer unit Monsanto and other organizations, as well as preparing bellwether cases for trial.
Their motion sparked a backlash from rival lawyers including Houston attorney Mark Lanier and Bernstein Liebhard, who said the court-ordered holdback would reward them with extra fees on top of a supposed premium they extracted from Bayer in exchange for settling their own cases.
Bernstein Leibhard, in a Feb. 4 filing, said The Miller Firm was believed to have settled its inventory of 5,000 cases for $849 million, meaning it already earned a $340 million fee at the standard 40%.
“It is respectfully submitted, upon information and belief, that the Co-Leads, through their individual fee contracts with their clients, have already significantly, and more importantly, adequately, been compensated for the work they performed, and for which they now seek to be compensated again,” the rival law firm said in its filing.
The Miller firm fired back, in the process revealing how the business of mass-tort litigation is actually practiced, with numerous law firms investing millions of dollars in advertising to recruit clients that they then funnel up to the lead law firms. Bernstein Liebhard based their estimates on an inaccurate news article citing an unidentified claimant who leaked information about the settlement, Miller said.
“Objector Bernstein, as a seasoned law firm, should know that an article based on a client’s estimate of the Miller Firm’s fees are meaningless as there over 100 law firms with a fee interests in `The Miller Firm Settlement,’” the law firm said, including one of the objecting lawyers who has a piece of hundreds of those cases.
The lead attorneys also say it’s unfair to accuse them of double-dipping since they invested heavily in the Roundup litigation when other law firms took a pass because of the weak scientific evidence glyphosate causes cancer. They also noted they will be subject to the common-benefit fee assessment and pay the most into the pool.
Weitz & Luxenberg and the Miller firm raised the stakes in a filing today, notifying Judge Chhabria of a recent decision in the 3M ear plugs MDL ordering firms that object to the 9% common-benefit fee to pay a penalty 15% rate if they use any of the common benefit work product in their cases. The judge there ordered defendants to delay paying any claimants in state or federal court until the lead plaintiff lawyers have been notified of the settlement and determined whether fees need to be withheld.
Lanier joined an objection by plaintiff lawyers with state-court cases in Missouri and Texas, saying Judge Chhabria had no jurisdiction over them and couldn’t force them to comply with a common-benefit order.
“Counsel for Objectors have not represented any party in this MDL,” the dissenting lawyers said. “They have not received MDL work product.”
Lanier was forced to backpedal a bit, however, after lead lawyers told the judge he was trial counsel in two cases in Missouri state court along with a firm leading discovery efforts in the MDL. Lanier apologized for the oversight but said those cases weren’t in his inventory of 1,180 lawsuits he was already deeply into settlement talks over.
Bayer’s efforts to settle the Roundup litigation may be further complicated by objections Napoli Shkolnik recently filed to a proposed $2 billion settlement of future claims over Roundup, which will remain on the market and cannot legally bear a warning because the U.S. Environmental Protection Agency says it doesn’t cause cancer.
Napoli Shkolnik represents the 100,000-member National Black Farmers Association, which is seeking a court order prohibiting Bayer and Monsanto from continuing “to market its product in its current form — particularly in the absence of any warning about its dangers or changes designed to minimize risks and exposure.”