A recent Law.com story by Amanda Bronstad, “Roundup MDL Lead Counsel Defend Fee Allocations: ‘Limited Funds Available’”, reports that lawyers doling out fees in Roundup litigation stood by their decisions on how to allocate the funds, despite objections raised by other firms.

The fee committee, which is comprised of the three lead plaintiffs firms in the Roundup multidistrict litigation, allocated 81% to themselves and the rest to four other firms, including those who helped win the only bellwether trial, which ended in an $80 million verdict in 2019.  Three of those firms objected to their share of the so-called common benefit fund, which totaled $20.23 million.

Lead counsel originally had sought an order that would have granted about $800 million in common benefit fees, enough for the firms to “each afford to buy their own island,” U.S. District Judge Vince Chhabria wrote in a 2021 order significantly trimming the scope of common benefit fees in the Roundup litigation.

Several firms had objected to the original request, which they called a “money grab,” but lead counsel insisted that Bayer, which owns Monsanto, would not have entered into settlements but for their work.  In 2020, Bayer announced it planned to settle about 125,000 Roundup claims for an estimated $10.9 billion, but thousands of cases remained unsettled.

The significant reduction in the common benefit fund appeared to influence the committee’s allocation amounts.  For instance, San Francisco’s Andrus Anderson, whose partner Lori Andrus served as co-liaison counsel in the Roundup multidistrict litigation, had wanted closer to $550,000, the amount the firm actually billed, rather than the allocated $200,000, or 1% of the common benefit fees.  The committee, in a response, acknowledged that Andrus Anderson’s request was reasonable.  “But, unfortunately, the limited funds available for distribution in this litigation do not allow this to happen,” the committee wrote.

The committee members are co-lead counsel Aimee Wagstaff, of Wagstaff Law Firm in Denver; Robin Greenwald, of New York’s Weitz & Luxenberg; and David Dickens, who took over following partner Michael Miller’s 2021 death, at the Miller Firm in Orange, Virginia.  Among the fee committee members, Wagstaff Law Firm is set to receive the most, with 30%.

‘Thousands of Hours of Common Benefit Work’

Common benefit fees are used in multidistrict litigation to compensate lead counsel for costs and fees associated with discovery, trials and settlements, while preventing “free riders,” or lawyers who collect fees on cases they generate but don’t necessarily litigate.  Lawyers with related state court cases, in past years, have challenged common benefit fees, which are funded through assessments against their settlements.

Chhabria, in the Northern District of California, called common benefit fees in multidistrict litigation “totally out of control,” sending shock waves through the mass tort bar.  In his Roundup order, he excluded a large amount of the legal work, including state court cases, from being reimbursed through common benefit fees.

Los Angeles-based Wisner Baum and its predecessor, Baum Hedlund Aristei & Goldman, focused heavily on Roundup cases in California state courts, where partner R. Brent Wisner won verdicts of $289 million, in 2018, and $2 billion, in 2019.  But the firm is set to receive 10% of the fees because “no other firm contributed more to the common benefit of the MDL,” according to the committee’s response, filed on Friday.

The allocation, the committee wrote, is based on Wisner Baum’s “good faith effort” to estimate its time.  But the firm didn’t have adequate billing records that divided up the hours tied to the multidistrict litigation versus state court cases.  The fee committee, as a result, was forced to reduce Wisner Baum’s requested amount.  “Applying such a reduction is consistent with how courts typically handle attorney fee determinations for firms that have failed to submit time records,” the committee wrote.

Jennifer Moore, of Moore Law Group, based in Louisville, Kentucky, was co-lead counsel with Wagstaff in the bellwether trial, which Monsanto appealed all the way to the U.S. Supreme Court.  Moore had argued that 6% was not enough given her work in that case or the $3.4 million her firm contributed to the common benefit fund, but the fee committee countered that the Miller Firm and Weitz & Luxenberg, both lead counsel firms, also anticipate receiving less than they paid.

“Moore Law contributed to the advancement of this MDL.  There is no question about that,” the committee wrote.  “But Moore Law also greatly benefitted from the thousands of hours of common benefit work that was done before it had any involvement in this MDL.”

Another objection came from David Diamond, of Diamond Law in Tucson, Arizona, who insisted he did not rely on lead counsel’s work in his Roundup cases.  He was joined by David Bricker, of Thornton Law Firm in Beverly Hills, California.  Diamond suggested returning the money to lawyers, like them, who took their own risks.

But the committee disputed his characterization.  “Diamond Law was able to resolve 300 MDL cases without having to draft and issue general discovery, brief and argue preemption and other general dispositive motions, depose a single Monsanto employee, or retain general experts in epidemiology, toxicology, pathology, and regulatory affairs,” the committee wrote.  “With this backdrop, it is difficult to comprehend how Diamond Law can boldly declare that it received no assistance from MDL leadership.”

A recent Law 360 story by Bonnie Eslinger, “’Superb’ Juul MDL Attys Get $76.5M, But Diversity Issue Noted”, reports that a California federal judge approved an attorney fee award of $76.5 million in multidistrict litigation alleging Juul marketed its nicotine products to adolescents, saying the plaintiffs' lawyers did a "superb job," while also expressing concern about the lack of Black and Latino attorneys involved.

During a hearing in San Francisco held over Zoom, U.S. District Judge William Orrick was full of praise for the work done by co-counsel for the plaintiffs, which he said obtained an "excellent" result.  Ruling from the bench, he awarded the lawyers 30% of the $255 million settlement, $76.5 million.

Before issuing that ruling, however, Judge Orrick said he wished there had been more Black and Latino lawyers working on the MDL.  Pointing at a report put together by the plaintiffs about the demographics of their lawyers, the judge applauded the gender diversity, in particular with the four co-lead counsel he selected in 2019, which includes three women.

During the hearing, the court heard from one objector to the requested fee amount and a second against the proposed allocation of the fees.  The latter was filed by the Law Offices of Esfand Nafisi, who said lawyers who worked for the common benefit of all plaintiffs in the litigation were getting shortchanged.  "This was an extraordinary result that required a lot of hard work and a lot of hard lawyering," Nafisi said.  "We think that the fruits of those results and hard work ought to be proportionally distributed."

Judge Orrick overruled the objection, noting that Nafisi's was the lone objection to the work of the fee committee, which was assisted by a court-appointed special master.  "I agree ... I think the work that was done really was excellent, and the result obtained was also excellent," the judge said. 

The other objector, Juul purchaser Reilly Stephens, told the court that a nearly one-third cut of the settlement was too high.  His lawyer, Neville Hedley of the Hamilton Lincoln Law Institute, called the 30 percent proposed a "windfall."

Judge Orrick rejected the assertion.  "I think this was an excellent result for the class; the legal risks were significant and it took good and creative lawyering to get there," Judge Orrick said.

The fee committee noted in a Dec. 13 memo to the court that the settlement followed a little more than three years after the MDL was formed in October 2019.  "A little more than three years later, defendant Juul Labs Inc. agreed to four global settlement programs: personal injury, government entity, tribal entity, and class.  While the amounts and terms of the non-class settlements are confidential, the aim of the settlements is to resolve virtually all cases pending in either the MDL or [Judicial Council Coordination Proceedings] and to fund solutions to the youth vaping epidemic," the memo adds.

The settlements include all claims pending against Juul Labs Inc., its officers and directors, as well as its suppliers and retailers.  "These remarkable results happened at remarkable speed, particularly in the context of a global pandemic that could have, but did not, grind this litigation to a halt," the fee committee states.

In September, Judge Orrick signed off on the Juul deal, but held off on the attorney fees and expense request to consider the determinations made by the fee committee.  The approval came nearly a year after Juul announced it struck an agreement with the plaintiffs, which include adolescents, school districts and municipalities —  just as the litigation was heading to bellwether trials led by California schools.  Juul and the class later unveiled details of the proposed settlement, which Judge Orrick preliminarily approved in late January.