Legitimacy of ‘good faith’ settlement questioned

By The Madison County Record | Nov 28, 2018

When two parties in litigation agree to a “good faith” settlement, that’s good, right? It brings the dispute to an end sooner, ensures that the outcome is acceptable to both sides, and eliminates the risk of a decision less favorable to one side or the other.

Of course, the good faith settlement reached by opposing counsel should serve the best interests of their clients and not unduly disadvantage any third parties involved.

The settlement reached with Monsanto by the Environmental Litigation Group of Birmingham, Ala., and local lawyer Paul Schoen on behalf of their East St. Louis clients has left many of those clients questioning its legitimacy.

Over half of the proposed $20 million settlement would go to lawyers’ fees and expenses, the rest being split among 11,256 plaintiffs, many receiving checks for less than $900.

A second defendant, Cerro Copper, also opposes the settlement, from which it was excluded.

St. Clair County Circuit Court Judges Andrew Gleeson and Vincent Lopinot approved the settlement, but Fifth District judges vacated their order, concluding that Gleeson and Lopinot sealed the documents without reading them.

“The settling parties did not offer even an estimated amount of the final settlement or any basis for the settlement proposed,” Justice Judy Cates wrote for the appellate panel. “The total lack of information casts a shadow on the legal validity of the settlement itself.”

Cates said there was “no indication that the trial court reviewed the settlement agreement, or had any information justifying the allocation of the settlement fund among the plaintiffs.” 

Monsanto has twice asked the Illinois Supreme Court to review the appellate court opinion, with plaintiff lawyers joining the motion and Cerro Copper in opposition.

In his reconsideration motion, Monsanto attorney Timothy Eaton affects to take the high road of concern for the public interest, warning that the Fifth District opinion will wreak havoc on our court system by encouraging other litigants “to delay or derail good faith findings.”

We can’t help but wonder if he’s making that argument in good faith.

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