Monsanto plaintiffs fuming over pollution settlement netting lawyers more than claimants

By Record News | Nov 12, 2018


BELLEVILLE – Lawyers who settled 11,256 pollution claims against Monsanto for about $21 million paid most of it to themselves and their experts before doling out the remainder to their clients at an average of $873.

Environmental Litigation Group of Birmingham, Ala., and local lawyer Paul Schoen laid out the division of the proceeds in a letter to clients on Nov. 7.

The letter stated the total settlement was $20,706,023.60, of which $9,874,739.24 - 47.7 percent - was allocated directly to clients.

Fees were $5,496,804.72, or 26.5 percent; expenses were $5,334,479.64, or 25.8 percent. All totaled- $10,831,284.36. Fees had been set at 40 percent, but attorneys told claimants in September they would reduce their take because blood test results were lower than expected. 

Settlement hasn’t closed the case because plaintiffs continue to pursue claims against recycler Cerro Copper.

“We believe Cerro to be the much stronger defendant due to a more direct link between dioxin and cancers and other serious health concerns," the letter says.

The Monsanto settlement has stirred protests among plaintiffs, so the lawyers strained to hit notes of justice, honesty, and unity.

“We understand that the East St. Louis community has been denied justice in past years, and this is one of the key reasons we desired to take this case in the first place," the letter says.

The lawyers implied they didn’t fully share information with clients because doing so might have worked against them.

"Transparency is one of the best tools that anyone can use to help satisfy concerns about any process," the letter says. “As attorneys we must always find a balance between transparency and giving information that may end up in the hands of the defendants and potentially be used against our clients.

“As we have said repeatedly, it is in your best interest and the best interest of all clients that communications between our clients and their attorneys remain confidential and attorney client privileged so as not to jeopardize your case going forward.”

Next they addressed disappointment with checks plaintiffs received in October, smaller than $600 checks they received in 2016.

“As we have communicated in past letters, the settlement amount was determined by blood testing of a statistically significant group," the lawyers wrote.

They wrote that testing didn’t show a significant difference between the East St. Louis community and the U.S. population.

“Since the settlement fund was based upon these results, the overall settlement value was lower than we had hoped," they wrote. “Environmental Litigation Group and Schoen Law Firm want you to know that we understand the community frustration, and we are here to respond to any other questions that you might have.”

Plaintiffs started signing agreements with Schoen in 2008, when he worked for the late Rex Carr in East St. Louis.

Clients agreed to pay a 40 percent contingency fee.

Schoen acted as local counsel for the Alabama lawyers, who had previously reached an $800 million settlement with Monsanto over pollution in Anniston, Ala.

In an interview with the Record on Nov. 9, plaintiff Vondell Burns of Belleville said a lawyer told the first plaintiffs that pollution levels were three times as much as in Anniston.

She said he told the group they could have a larger population than Anniston.

“They suckered us here with Anniston," Burns said. "They warned us not to speak to anyone outside the case but they sent us 15 pages of people and wanted us to contact them to come into this lawsuit.”

She said the list showed names without addresses or telephone numbers.

“They had us doing their work for them," she said.

Burns said clients spent their own money.

“We had to get death certificates and medical reports," she said. “Those aren’t free, and some things need a notary.”

In 2009, Schoen filed 21 suits for 1,002 plaintiffs in St. Clair County circuit court.

Defendants removed the action to U.S. district court, and District Judge Patrick Murphy remanded it to St. Clair County in 2010.

Former chief judge John Baricevic stayed the proceedings pending mediation, and years passed without action.

Mediation with Monsanto resulted in a settlement in 2014.

The Alabama lawyers told clients that all living adults would get $600, “for simply participating and signing a release.”

They wrote that plaintiffs would receive additional compensation from a formula based on blood tests and chemical exposures.

Mediation with Cerro failed, and Baricevic lifted the stay as to Cerro.

In 2016, plaintiffs received $600 checks and Schoen moved for a finding of good faith on Monsanto’s settlement.

He moved to seal the settlement and the releases the plaintiffs signed. He also moved to discharge any liability of Monsanto to Cerro and bar any contribution claims against Monsanto.

Circuit judges Andrew Gleeson and Vincent Lopinot set a good faith hearing, and Cerro moved to continue it.

Monsanto counsel Bruce Cook and Bob Sprague objected to a delay.

Cook wrote that Cerro participated in negotiations and was well aware of the settlement concept.

He wrote that each plaintiff “received money consideration from the settling defendants and therefore the agreement is presumed to be in good faith.”

Cerro counsel Thomas Ysursa responded that a settlement that deprives other defendants of a right to a setoff violates state contribution law.

“The proposed settlement agreement not only fails to allocate proceeds among the different plaintiffs and their respective claims, but it also fails to provide a total settlement amount," Ysursa wrote. “Without knowing how much money goes to each plaintiff and each plaintiff’s claims, neither the court nor Cerro can evaluate whether the settlements with the plaintiffs are fair and in good faith, as opposed to contrived or manipulated in a fashion that would unfairly prejudice Cerro.”

At a hearing, Cook told Gleeson and Lopinot that, “Where money has changed hands, there is a presumption that the settlement is valid.”

Gleeson said a substantial amount of money was extended.

“It seems to this court that it’s consistent with the Contribution Act," Gleeson said. “Judge Lopinot and I believe that this settlement is in good faith.”

As Ysursa continued arguing for a record on appeal, Cook said it was possible that the total amount of consideration had already been paid.

No one had told plaintiffs about that possibility, but they figured it out.

Last year, their lawyers advised them to ignore “a great deal of misinformation” going around East St. Louis.

Frustration bubbled over this April, when Fifth District judges reversed Gleeson and Lopinot on good faith.

Justice Judy Cates wrote that the lack of information cast a shadow on the legal validity of the settlement.

“The settling parties did not offer even an estimated amount of the final settlement or any basis for the settlement," Cates wrote.

She called for particular scrutiny of legal fees.

When reaction to the decision caused plaintiff Jacqueline Everson to circulate a petition, her lawyers sent a sizzling letter to those who signed it.

"If Mr. Everson is now your legal representative, please send us a document in writing and we will withdraw from your case immediately," they wrote.

They wrote that Everson and articles in the Record "misconstrued" the status of the case, “to mislead you in hopes of causing discouragement.”

"This is causing our team of lawyers to seriously evaluate if we should continue with your case or withdraw from representing those of you who have signed this petition," they wrote.

They wrote that statements in the Record were an intentional strategy of Cerro Copper to misstate and confuse the meaning of a good faith finding in Illinois.

On June 28, they announced a meeting at Ainad Temple on July 11.

They offered to talk with petition signers individually.

According to original plaintiff Burns, plaintiffs by the thousands lined up around the block for the meeting.

“I stood in line an hour and 15 minutes, and it was hot," Burns said.

She said plaintiffs passed through a metal detector and had bags searched.

She said those things didn’t happen at previous meetings in the temple.

She said a lawyer told plaintiffs in the temple that they’re misinformed and should stop following Everson.

A second round of checks followed in October.

The lawyers explained that the second checks were smaller than the first ones because they hadn’t deducted fees and expenses from the first ones.

“The information that was sent with checks that were distributed recently represented the net amount, or the amount that each client received after fees were paid an expenses were reimbursed," they wrote.

Plaintiff Michael Foxworth, at his home in East St. Louis on Nov. 6, held a stub for a check worth $268.87, and it cost him $8.87 to cash it.

Foxworth said the lawyers got greedy.

“They think people see a few hundred dollars and think, I’ll spend it on drugs or I’ll spend it on liquor," he said. “They think, they’re not going to come up against us.

"There’s always somebody somewhere that’s not going to put up with it.”

Burns said, “Let them think we’re fighting over dollars...We’re fighting over thousands of dollars. What we got was dollars.”

Lopinot, ready to retire, no longer shares the litigation with Gleeson.

In October, Gleeson directed the parties to confer on a trial date.

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