A recent WSJ story by Sara Randazzo, “Roundup Plaintiffs’ Lawyers Spar Over $800 Million in Fees,” reports that plaintiffs’ firms that led the legal campaign against Bayer AG are fighting over $800 million in fees from the Roundup weedkiller litigation, arguing that they deserve a bigger slice of one of the largest-ever corporate settlements than firms that joined later.

The high-stakes dispute is coming to the fore eight months after Roundup’s maker, Bayer, announced that it would pay up to $9.6 billion to resolve 125,000 cancer claims brought by dozens of law firms.  The fee fight underscores increasing tension between law firms that do the in-court work necessary to win cases and those that advertise to sign up scores of clients.

The Roundup deal isn’t a single, all-encompassing pact that needs signoff from a court but instead a series of confidential settlements between Bayer and the many law firms with eligible clients.  Some of those firms spearheaded the litigation, but most signed up clients later in the process, building on work already started.

Six law firms appointed by a federal court as leaders in the litigation are asking a judge to set aside 8.25% of the Bayer settlements into a fund to be distributed among those firms and others that handled the brunt of the work.  Under their proposal, those firms would get a share of the fund and reap whatever fees they agreed upon with their clients.  Plaintiffs' lawyers often take a cut of more than 30% from such settlements.

The leadership firms, led by Andrus Wagstaff PC, Weitz & Luxenberg PC and the Miller Firm, argue that they invested at least $20 million and years of time to build a case linking Roundup to cancer.  They described the common-benefit fund as a sort of “tax” on law firms that waited until the litigation was successful before getting involved.

Several law firms have objected, saying the court doesn’t have the power to create the common fund—estimated at $800 million.  They say the leadership team is trying to double-dip, speculating that their confidential deals with Bayer are already more lucrative than those that other firms received.  “They’ve already been adequately compensated multiple times over,” Melissa Ephron, a Texas lawyer objecting to the extra fees, said at a virtual court hearing on the matter.

The confidential nature of Bayer’s settlements means the public is unlikely to know each law firm’s take and how much money the affected plaintiffs who blame their cancer on Roundup use will personally receive.  Bayer hasn’t conceded that its weedkiller can cause non-Hodgkin lymphoma and will continue to sell the product without a cancer-warning label.  U.S. District Judge Vince Chhabria in San Francisco, who oversees around 4,000 Roundup cases filed in federal court, raised doubts that he has the authority to require every law firm striking a deal to give up 8.25%.

“They all got their settlements because you achieved such a good result.  There’s no question about that,” he said during the hearing, but added that he wasn’t convinced it was appropriate for the leadership to get a windfall.  The fight highlights a dynamic playing out more in recent years in large cases alleging harms from drugs or everyday products.  A sophisticated ecosystem of advertisers and marketers sign up plaintiffs in bulk and pass them off to lawyers who file claims in court, often with little vetting on the strength of the cases. The rising number of plaintiffs can help pressure companies to settle.

The lead lawyers for Roundup plaintiffs pointed to this dynamic to bolster their argument for why they deserve more money than the more than 500 other law firms with Roundup clients.  After the lead firms had some key early success in the litigation, “a tsunami of advertising resulted in thousands of new lawsuits filed by law firms that had hedged their bets,” the leadership team wrote in a January filing.

A recent Law 360 story by Lauren Berg, “$650M Facebook Privacy Deal OK’d, $110M Atty Fees Trimmed,” reports that a California federal judge praised a $650 million settlement resolving claims that Facebook's facial recognition technology violated Illinois users' biometric privacy rights, calling it a "landmark result," but he trimmed the $110 million requested attorney fees to $97.5 million.  U.S. District Judge James Donato gave his final stamp of approval to the multimillion-dollar deal resolving claims under the "new and untested" Illinois Biometric Information Privacy Act, calling it a major win for consumers in the "hotly contested" area of digital privacy.

The settlement will put at least $345 each into the hands of 1.6 million class members who filed claims, according to the order, and Facebook has agreed to set its "face recognition" default setting to "off" for all global users and delete all existing and stored face templates for the class members.

But Judge Donato also cut back the $110 million in attorney fees that class counsel at Edelson PC, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP asked for, saying the $650 million size of the settlement fund is not a typical case that warrants the use of a 25% contingency fee as a benchmark.  The judge said in this case it would be more appropriate for him to adjust the benchmark percentage or employ the lodestar method instead to avoid "windfall profits" for class counsel.

"To be clear, the court recognizes the skill, dedication and hard work class counsel brought to this case and their clients," Judge Donato said.  "The fact that the court cannot in good conscience award fees on the presumption of a 25% contingency cut should not be read as detracting from that in any way."

"It is simply a matter of fairness and proportion," the judge said.  He said a 25% presumption is just too big to be applied to a settlement fund as large as this one.  The class counsel spent more than 30,103 hours on the case, according to the order — including 9,577 hours by Robbins Geller, 8,103 hours by Labaton Sucharow and 12,423 hours by Edelson.

The judge adjusted the percentage rate from 16.9% of the settlement fund to 15%, giving the class counsel $97.5 million in attorney fees, according to the order.  The judge said he also cross-checked that number with a lodestar calculation and found the award to be more reasonable than the one requested.  But the judge said 15% of the attorney fee award will be held back pending further order.  He granted the class counsel's request for $915,000 in expense reimbursement, finding sufficient documentation, according to the order.

The judge also reduced the incentive awards for the three class representatives — Nimesh Patel, Adam Pezen and Carlo Licata — from the requested $7,500 each to $5,000 each, saying that even though the requested amount would be a "minuscule proportion" of the settlement, it's still too high in comparison to the amount other class members will receive.

Judge Donato praised the parties' "proposed array of innovative ways to reach class members" and notify them of the settlement, including by direct email, Facebook's newsfeed notifications, publication in Illinois newspapers, a settlement website and an internet ad campaign.  "These were robust measures, and they paid off in spades," the judge said.

A recent Law.com story by Amanda Bronstad, “Lead Counsel in Roundup MDL Defend $800M Fee Request,” reports that lawyers defending as much as $800 million in proposed common benefit fees from settlements with Monsanto insisted that the law firms objecting to their request had painted “an incomplete and inaccurate picture” of the Roundup litigation.  More than a dozen law firms had objected to the fee request, with one of them calling the request a “money grab” by lead counsel in the multidistrict litigation.  In a response, lead counsel insisted that the award was justified.

They said Bayer, which owns Monsanto, would not have entered into settlements last year but for their work, which included obtaining three Roundup verdicts.  “The pleadings and affidavits submitted by the objectors present an incomplete and inaccurate picture of the Roundup litigation,” they wrote.  “The simple fact remains that all Roundup attorneys and plaintiffs have benefitted from MDL leadership’s efforts—irrespective of whether or where their cases are filed or unfiled and whether their individually retained attorneys have cases pending in the MDL, have formally availed themselves of MDL work product, or have entered into a formal participation agreement.”  Lead counsel are 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.

Bayer announced in June that it planned to settle about 125,000 Roundup claims for an estimated $10.9 billion, which included a class action settlement that lawyers later withdrew.  The settlements were not part of a global agreement, however.  Lawyers, including lead counsel, conducted their own negotiations, which have been confidential, and many cases remain unsettled.

In a Jan. 11 motion, lead counsel sought an 8.25% assessment on Roundup settlements to pay for fees and expenses spent on the “common benefit” of all lawyers.  U.S. District Judge Vince Chhabria of the Northern District of California, overseeing the Roundup multidistrict litigation, filed a Jan. 26 order asking lawyers to address four questions about the holdback request, including whether it is even necessary and, if so, how much, and whether it should be lower than the proposed 8% in fees and 0.25% in expenses.  He also asked 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.”

Several firms criticized the request, particularly on top of an estimated $2 billion in attorney fees they claimed that lead counsel made from contingency fee contracts associated with their own cases, which settled last year for greater amounts than Monsanto is now offering.

In their response, lead counsel noted that the proposed holdback includes an assessment on their own cases, and would compensate about 20 firms not in leadership.  They also said that the assessment pertained only to about 400 law firms that had done one of the following: had at least one case pending in the multidistrict litigation, signed a participation agreement, used “work product” in the multidistrict litigation, or sought help from Kenneth Feinberg, the special master, in settlement negotiations.

“The circumstances of this litigation warrant an expansion of the current scope of the holdback to encompass the entire universe of settlements, because all Roundup plaintiffs have undoubtedly benefited from the efforts and expenditures of common benefit attorneys,” they wrote.  “Indeed, the extensive work that this court has conducted in issuing opinions and managing the litigation have had a direct effect on each and every Roundup case or claim, irrespective of whether or where an attorney might have filed his or her cases.”  Many of the objecting firms had insisted they did not use discovery in the multidistrict litigation and that lead counsel purposely kept the experts to themselves.  Lead counsel countered that they had made work product available on a firm website and provided a “trial package” and experts.

Addressing the objections of specific firms, lead counsel said that Beasley Allen had a pending case in federal court that is part of the trial pool and had coordinated with Weitz & Luxenberg, one of the lead counsel firms, to obtain experts in its state court cases.  Beasley Allen also had asked for an 8% holdback in the multidistrict litigation against Johnson & Johnson over talcum powder, they wrote.  They also attacked the objections of The Lanier Law Firm as “untrue and baffling” given that the firm reached out to lead counsel to retain their experts for upcoming Roundup trials in Missouri state courts.  The Lanier Law Firm also had sought a 10% holdback in multidistrict litigation over DePuy Orthopaedics’ Pinnacle hip implants.

In an email, W. Mark Lanier called the comparison “apples and oranges,” given the amount of work done in the hip implant cases, and disputed claims that he used experts from the multidistrict litigation.  “I find the pleading and allegations a bit baffling as well,” he wrote. “I personally had been told most every expert was being pulled by MDL leadership, and non-MDL cases would have to find their own experts.”  Chhabria has scheduled a March 3 hearing on the fee dispute.

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.

A recent Law 360 story by Ryan Boysen, “Ex-NFLers Blast Seeger Weiss for Concussion Holdback Fees,” reports that retired NFL players and law firms active in the historic concussion settlement are raising alarms over Seeger Weiss LLP's request to levy a 5% fee on injured players' payouts to fund its future work on the case, calling it a cynical cash grab that's unsupported by facts.  Seeger Weiss has already faced years of attacks accusing the firm of burning through the lion's share of a $112 million attorney fee fund with hardly any oversight.  A series of opposition briefs filed reiterated concerns over an alleged lack of transparency in Seeger Weiss' billing practices and argued the stakes of the latest request are even higher than the previous ones.

The $112 million fund was paid for by the NFL, but the money Seeger Weiss is now requesting would come from the injured players themselves, as well as their lawyers, in the form of a 5% haircut levied on the awards of all players who successfully get paid from the uncapped settlement program.  That haircut has already been applied to the roughly 1,150 players who've had $788 million worth of claims approved thus far, resulting in $37 million sitting in an account and awaiting a decision by U.S. District Judge Anita B. Brody.  If she grants Seeger Weiss' request, that money would be released and the haircut would also be applied to all players who get paid in the future.  Seeger Weiss said it anticipates it will need between $2 million and $2.5 million per year to cover the costs of its settlement-related work.

The lawyers behind the filings said that, if granted, the 5% haircut would essentially reward Seeger Weiss for spending the NFL's money as quickly as possible by allowing the firm to collect millions of dollars from the concussion settlement annually for the rest of the program's lifespan, 61 years, even as the work required to oversee the case declines precipitously going forward.

The objecting firms are Locks Law Firm, Langfitt Garner PLLC, Girardi Keese, Lubel Voyles LLP and Goldberg Persky & White PC, as well as a handful of retired players who are not represented by counsel and are led by Mary Andrie-Brooks.  An outspoken critic of the settlement, Brooks is the daughter of famed defensive end George Andrie, a member of the Dallas Cowboys' legendary Doomsday Defense who died in 2018.

Gene Locks of Locks Law Firm served alongside Seeger Weiss' Chris Seeger as co-lead class counsel in the case until last year, when Judge Brody abruptly terminated Locks and all of the other lawyers in that role except for Seeger.  In an interview, Locks said Seeger's latest request makes no sense.  "Chris Seeger has submitted no budget for this whatsoever," Locks said.  "It's an open-ended annuity for his firm for the next 61 years."  "Ninety-eight percent of the work in this case is done," Locks added. "It's outrageous to continue to bill for whatever's left at the rates he's seeking, while providing no details whatsoever as to why it's actually necessary."

Seeger has vehemently denied all the allegations in previous attacks on his fee requests, saying his detractors fail to appreciate the immense amount of work it takes to oversee the complicated and contentious settlement.  Touting the nearly $800 million paid out by the program thus far, Seeger said in a statement that the haircut is "appropriate as it will ensure work performed by any firm over the settlement's 65-year life is compensated fairly."

Any money generated by the haircut would almost certainly be available only to class counsel, however.  That means only Seeger Weiss would have access to the money because it is the only remaining class counsel firm, although Seeger Weiss said in its request that it may hand off that role to another firm at some point.  The settlement was approved in 2015 and put to rest claims that the NFL knew for decades about the long-term dangers of repeated concussions, but did nothing to warn its players.

The uncapped program covers a class of about 20,000 retired NFL players, all of whom are potentially eligible for payments ranging from a few thousand dollars to $5 million, depending on their age and the severity of their football-related brain injuries.  The $112 million common benefit fund was set up to pay attorneys for work that broadly benefits the class as a whole, as opposed to work that involves shepherding a single player's claim through the Byzantine program.

After the settlement was finalized, mass tort fee expert William B. Rubenstein of Harvard Law School said the $112 million fund should be enough to cover class counsel fees for the program's 65-year lifespan, which began counting down in 2017.  But just three years into that timeline, only $13 million remains in the fund.  That number will be further reduced to $6 million if Seeger Weiss' pending fee requests for about $7 million are granted.

Seeger Weiss has already taken home roughly $66 million from the fund, while about 20 other firms split approximately $33 million for their work on bringing the deal to fruition.  The 5% haircut fee was conceived of as a Plan B, something that could be tapped into if class counsel costs exceeded Rubenstein's predictions.

In his request, Seeger said Rubenstein's predictions were unrealistic and estimated that he will continue to spend between $2 million and $2.5 million per year on concussion settlement-related work for the foreseeable future.  The 5% haircut, he said, is the only way to make sure he's paid for that work.

The firms that filed opposition briefs, however, said Seeger has presented no evidence whatsoever to back up that assertion.  Seeger's request runs 51 pages, but nearly all of that space is spent rehashing the work he's already done on the settlement.  The firms opposing the 5% haircut said that's highly misleading because the number of new claims being submitted by players has slowed "to a trickle," and all of the major issues that initially sparked major battles between players' attorneys and the NFL have now been settled, for better or for worse.

"Seeger continues to bill hours upon hours for work that seems to be making no impact on the greater good," Locks Law wrote.  The attorneys that oppose Seeger also said an analysis of his previous fee requests seems to indicate he's dramatically marking up the hourly rates charged by his attorneys.  Langfitt Garner said Seeger appears to be charging $260 an hour for paralegals and about $485 an hour for associates, roughly 10 times the going rate for both roles in Manhattan, one of the nation's priciest legal markets.

"These numbers suggest mark-ups that are no longer reasonable in light of the fact that class counsel has already received fees in excess of $63 million, and the fact that class counsel now demands that pro se players and counsel to players pay its fees and expenses," Langfitt Garner wrote in its opposition.

Langfitt Garner said Seeger Weiss should only receive 20% of the $37 million that's currently been collected from the 5% haircut, and the rest should be returned to players.  Going forward, Seeger Weiss should only receive a 1% haircut rather than 5%, Langfitt Garner said, and even that should only be done as a last resort.  The firm added that Seeger Weiss should be required to submit a detailed budget plan if it wants to access any of that money, a request echoed by other firms that filed opposition briefs.