A recent Law.com story by ‘Money Grab’: Objections Fly Over $800M in Fees for Lead Counsel in Roundup MDL”, reports that lawyers are pushing back against a request in the multidistrict litigation over Monsanto’s Roundup pesticide to turn over portions of their settlement amounts to provide lead counsel with what some estimate to be $800 million in attorney fees. More than a dozen firms with thousands of lawsuits across the country, including Beasley Allen, The Lanier Law Firm and Gibbs Law Group, filed objections to a Jan. 11 motion that lead counsel filed asking for an 8.25% assessment on their Roundup settlements to pay for fees and expenses spent on the “common benefit” of all lawyers.
Many said the holdback for so-called common benefit fees equates to $800 million for lead counsel—what one attorney called a “colossal amount.” “This court should not condone what is essentially nothing more than a money grab,” said Karen Barth Menzies, of Gibbs Law Group in Oakland, California, who filed an objection on behalf of her firm and two others. Menzies insisted that the $800 million is on top of an estimated $2 billion in attorney fees that lead counsel made from contingency fee contracts associated with their own cases, which they settled last year for greater amounts than Monsanto is now offering.
In June, Bayer, which now owns Monsanto, announced it planned to settle about 125,000 Roundup claims for an estimated $10.9 billion. The agreements were not part of a global settlement, however. Lawyers have conducted their own negotiations, which have been confidential, and many cases remain unsettled. Many lawyers objecting to the common benefit fee assessment argue that lead counsel settled their own cases for much more than everyone else.
“Now you have a defendant who’s offering people $45,000 for a cancer case,” said Hunter Shkolnik, of Napoli Shkolnik. His New York firm filed an objection with appellate attorney Thomas Goldstein, of Goldstein & Russell in Washington, D.C. “And there was no common benefit tax associated with those initial billions of dollars in cases that were settled,” Shkolnik said. “They intentionally did not tax their own cases and put them into the fund. You now have the next series of cases settling at much smaller amounts, and they’re seeking 8% common benefit.”
Lead counsel—Robin Greenwald, of Weitz & Luxenberg in New York; Michael Miller, of The Miller Firm in Orange, Virginia; and Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado —declined to comment about the objections. They are due to respond Feb. 18. In their request, lead counsel noted that the proposed holdback, of 8% in fees and 0.25% in expenses, includes an assessment on their own cases.
Meanwhile, U.S. District Judge Vince Chhabria of the Northern District of California, overseeing the Roundup multidistrict litigation, has his own questions—including whether a holdback is even necessary and, if so, how much it should be. On Jan. 26, he asked lawyers to address four questions he had about the lead counsel’s request, including whether he could issue a holdback “without understanding how much of a premium co-lead counsel has already received on their settlements compared to the typical settlement.” He also asked, “If a hold-back is truly warranted, why shouldn’t it be much lower than the 8% requested by co-lead counsel?”
The objections are the latest dispute among plaintiffs lawyers over common benefit fees, used to reimburse lead counsel in multidistrict litigation for costs and fees associated with discovery, trials and settlement. Much of that work ends up benefiting lawyers not in leadership positions in the event they want to pursue trials or settlements of their own cases.
In their fee motion, however, lead counsel emphasized that six firms, including their own, did most of the work in the Roundup litigation, including in state courts. Other firms, they noted, did not want to take the risks early on in the litigation. “The world was watching this litigation; there can be no doubt that it was high risk for contingency fee lawyers, which explains why all the heavy lifting and lion’s share of litigation costs and risks were left to the MDL leadership,” they wrote.
A “tsunami of advertising” following their big wins, such as the Roundup verdicts in 2018 and 2019, led to thousands more cases filed by “law firms that hedged their bets and previously sat on the sidelines,” they wrote. “That argument doesn’t at all describe us,” said Rhon Jones, of Beasley Allen in Montgomery, Alabama, who filed an objection to the holdback. “We very much want to try our own cases and work our own cases, so I don’t see where any of that applies to Beasley Allen.”
Many of the objectors, like Beasley Allen, have cases in state courts that they say are not subject to multidistrict litigation—a response to one of Chhabria’s questions asking whether the holdback should apply to state court cases. Jones estimated that as much as 90% of the cases over Roundup are in state courts. His own firm, he said, has only six cases in the multidistrict litigation, but 2,000 in state courts, mostly in Missouri.
Many firms argued that Chhabria, as a federal judge, did not have jurisdiction over state court cases, particularly where plaintiffs firms that did not sign any participation agreements with lead counsel. “We’re not saying they didn’t do good work—there is going to be a common benefit order in the Roundup case,” said Shkolnik, who said he has 100 Roundup cases in the multidistrict litigation but several thousand lawsuits in state courts in Missouri. “I just question whether or not the court has jurisdiction to apply to purely state court cases.”
Not only did some law firms claim they did not use discovery obtained in the multidistrict litigation, but they insisted that lead counsel purposely kept the experts to themselves and attempted to get other lawyers to refer cases to them. Several firms submitted declarations, including Mikal Watts, of Watts Guerra in San Antonio, and W. Mark Lanier, of The Lanier Law Firm in Houston, stating they not request help from lead counsel in the multidistrict litigation. Watts and Lanier both noted, however, that leadership also did not offer them “a trial packet, discovery documents, transcripts, or any other MDL work product,” according to their declarations.
In his objection, filed on behalf of her own firm and seven others, Arati Furness, of Dallas-based Fears Nachawati, wrote that lead counsel “refused to help any of the Roundup victims they do not represent,” and some even solicited referrals from other firms “to enhance their own settlements.” “In some instances,” she wrote, lead counsel “attempted to push firms into settlements with threats that they were going to be left out in the cold with no experts, no depositions, and no trial package.” Chhabria has scheduled a March 3 hearing on the fee dispute.