On his way out, Just for Men co-lead counsel says litigation is only way to resolve thousands of claims

By Record News | May 1, 2019

BENTON – Attorney Roger Denton of St. Louis, who helped manage 8,655 claims over Just for Men hair dye, revealed a settlement – disowned it – and asked to leave. 

On April 25, he applied to U.S. District Judge Staci Yandle for an order relieving him from duties as lead counsel in tandem with Richard Schulte of Dayton, Ohio. 

He wrote that a master settlement agreement had been executed, and that if successful, it would resolve all pending cases alleging Just for Men caused burns, scars and discoloration. 

“Roger Denton is not signatory to the master settlement agreement and has no role in the settlement program,” Denton wrote. 

Roger Denton  

He wrote that Schulte, as signatory, was fully capable of representing the interests of all plaintiffs and claimants going forward.

Denton, Schulte, and others filed suits for 3,709 plaintiffs against dye maker Combe Inc. and three Combe entities in 2016. The parties would later execute a tolling agreement for another 4,946 claimants. Only six percent of all claimants are Illinoisans. 

Combe moved to dismiss the suits for lack of personal jurisdiction, but former district judge David Herndon didn’t take up the motion. 

He created an executive committee of Schulte and Denton as joint leaders, and John Driscoll of St. Louis. 

He appointed Denton associate Kristine Kraft as liaison counsel. 

For a steering committee he picked Joseph Osborne of Boca Raton, Fla., Jon Conlin of Birmingham, Ala., Angela Mason of Dothan, Ala., Jay Urban of Milwaukee, and Tad Thomas of Louisville. 

He then stayed the proceedings indefinitely in favor of mediation through former Madison County judge Daniel Stack as special master. 

Then in 2017, a U.S. Supreme Court decision added power to Combe’s jurisdiction motion. In a case involving Bristol-Meyers Squibb, the Court ruled that a judge might exercise personal jurisdiction only if a claim arises out of a defendant’s contact with the forum. 

Last June, Herndon appointed Randi Ellis of Baton Rouge as mediation facilitator. 

On Jan. 4, at a hearing on Herndon’s last day before retiring, facilitator Ellis appeared but special master Stack didn’t. 

Denton told Herndon that defendants started asking about settlement in 2017, and that they suspended discovery by informal agreement. 

“This case isn’t going to resolve,” Denton said. “We need to have litigation.” 

Plaintiffs hadn’t taken a single deposition of Combe employees, and a new judge might ask, “Since the plaintiffs’ case has been on file for three years, how come you’re not ready for trial?” Denton said. 

Combe counsel Dan Ball of Bryan Cave in St. Louis said that in 2017, defendants had completed significant discovery, having spent millions producing and reviewing documents. 

Ball said the parties agreed that they wouldn’t take depositions or choose bellwether cases or insist upon rulings on jurisdiction and other motions. 

He said the court judicially termed the motions and held them in abeyance. 

“If we can’t reach a settlement then we’ll go to the next phase of the case which is having our motions disposed of,” Ball said. “I think even the plaintiffs would concede that many of their cases, many, many, many of their cases, have little or no value to them.” 

Herndon issued his final order, reinstating all motions. 

“Without blame to either side, that particular point at which any piece of litigation can be compromised because each side sacrifices some and gains some could not be reached here,” Herndon wrote. “There is much work to be accomplished, which is rare in cases with a lengthy time on file already.”  

The court clerk assigned the action to Yandle, who stayed all motions pending a ruling on jurisdiction. 

Driscoll amended complaints in March, to allege that a Combe defendant in Illinois and other Combe defendants acted as alter egos of each other. 

Combe counsel Stephen Strauss of Bryan Cave challenged jurisdiction on April 2. 

Strauss wrote that the presence of Combe Labs in Illinois was no basis for personal jurisdiction over other entities – that the Supreme Court made clear that the law doesn’t expose corporations to general personal jurisdiction in every state for any suit. 

Yandle held a status conference on April 5.    

Denton, Schulte, and Kraft appeared for plaintiffs, Strauss and Ball for Combe. 

On April 8, Yandle found pending jurisdictional motions moot in light of Driscoll’s amendment of complaints. 

Nothing further happened until Denton moved for relief from his duties. 

As of April 28, Schulte hadn’t filed notice of a settlement.

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