SAN FRANCISCO (Legal Newsline) – Plaintiffs lawyers who made such a bold fees demand that it caused a federal judge to openly plead for clearer rules are now asking an appeals court to OK their request anyway.
The firms Weitz & Luxenberg and The Miller Firm want 8.25% of every settlement in litigation over the weedkiller Roundup, which is alleged to cause non-Hodgkin’s lymphoma despite major agencies – like the federal government – declaring that it does not.
Still, Roundup-maker Monsanto and parent company Bayer are trying to figure out how to resolve more than 100,000 claims in a multibillion-dollar deal. Complicating matters is the conflict between lead counsel in the Roundup multidistrict litigation (the Weitz and Miller firms) and the other lawyers who signed up clients to sue in various state courts.
“Lead counsel’s motion does not merely seek to tax the recoveries of plaintiffs in this MDL; it also seeks to tax the recoveries of state court plaintiffs, and the recoveries of people who settled with Monsanto before filing any lawsuit at all,” wrote Judge Vince Chhabria, who is overseeing the MDL in San Francisco federal court.
“The fact that counsel is even requesting such a far-reaching order – a request that has some support from past MDL practice – suggests that courts and attorneys need clearer guidance regarding attorney compensation in mass litigation, at least outside the class action context.
“The Civil Rules Advisory Committee should consider crafting a rule that brings some semblance of order and predictability to an MDL attorney compensation system that seems to have gotten totally out of control.”
Ultimately, Chhabria ruled lead counsel should be paid 8% of every MDL plaintiff’s recovery, to be taken from the attorneys fees portion. He ruled against a holdback for recoveries in state courts outside of the MDL, and lead counsel on July 21 announced an appeal of his order to the U.S. Court of Appeals for the Ninth Circuit.
“Even if the Court had the power to order holdbacks from the recoveries of all other people who would be affected by lead counsel’s motion, it would not do so,” Chhabria wrote.
“(I)t’s likely that the lawyers who did common benefit work in the MDL have already been handsomely compensated, such that if a redistribution is warranted at all, it can likely be accomplished with a fund created from the recoveries of MDL plaintiffs.”
Chhabria wrote that two massive state court verdicts – reached outside of the MDL – helped push Bayer’s desire to offer about $11 billion to settle most of the existing cases.
The active ingredient in Roundup, glyphosate, is one of the most commonly used industrial chemicals and non-Hodgkin's lymphoma is a common cancer that occurs more frequently as people age, so the number of claims can only be expected to increase unless Monsanto can break the evidentiary chain between Roundup and cancer.
The U.S. Environmental Protection Agency says glyphosate is safe, as do most other national regulators, and Monsanto is prohibited by law from placing a cancer warning on the product.
This didn’t stop lawyers from suing Monsanto for not placing a warning. Rather than fight, the company has offered a settlement of up to $45 million that would pay lawyers some $11 million.
Plaintiff experts rely mostly on a 2015 finding by the World Health Organization’s International Agency for Research on Cancer that glyphosate is a probable carcinogen. Chris Portier, now a plaintiff expert himself, was non-voting chairman of the committee that made the finding despite strong epidemiological evidence involving tens of thousands of agricultural workers that glyphosate doesn’t cause abnormal rates of cancer.