BELLEVILLE – Attorney Bruce Cook, defending Monsanto’s mass pollution settlement, boiled the meaning of good faith down to “consideration and release.”
In a motion for a finding of good faith on May 6, he offered no argument except that the settlement was supported by consideration and that plaintiffs signed releases.
He didn’t address issues that Fifth District judges identified when they vacated a good faith order due to a lack of information.
The appellate court expressed doubt about the settlement’s validity, especially the releases, and called for close scrutiny of fees for plaintiff lawyers.
Current Chief Judge Andrew Gleeson and former circuit judge Vincent Lopinot signed the good faith order in 2016.
The remaining defendant, metal recycler Cerro Flow, challenged it because it prohibited contribution claims against Monsanto in the event of a judgment.
The Fifth District acted last April and Gleeson reacted this February, ordering Monsanto to file a good faith motion.
Cook’s motion ran 26 lines on two pages.
He filed it in an individual case rather than the central case and wrote, “This is a valid settlement, made in good faith, which has been ratified by plaintiff.”
That didn’t satisfy Cerro counsel Thomas Ysursa, who moved to conduct discovery on May 7.
Ysursa wrote that Illinois allows discovery as to factual issues related to good faith.
“If there was ever a case that called for discovery of good faith motions, it is this one,” he wrote.
He wrote that the appellate court carefully spelled out each of the subjects it expected to be addressed.
He also wrote that the appellate court’s directions are binding and must be followed.
Gleeson has set hearing for May 22.
Environmental Litigation Group of Alabama started the action in 2009, filing 20 suits for 1,022 plaintiffs alleging 70 years of contamination.
The group claimed Monsanto produced, stored, and disposed of hazardous substances on its property and at a landfill in Sauget, and claimed Cerro drained hazardous substances into a creek.
Most plaintiffs claimed diseases, and some claimed property damage.
Chief judge John Baricevic stayed the action in favor of mediation.
The Alabama group continued executing retainer agreements.
In 2014, Monsanto and plaintiffs agreed to settle.
The Alabama group filed more suits, bringing the number of plaintiffs to 11,256.
In 2015, Monsanto sent $600 participation payments to most plaintiffs.
When Gleeson and Lopinot signed the good faith order, they sealed the settlement documents and the transcript of a hearing.
Fifth District judges told them to consider whether plaintiffs had enough information to make choices.
Justice Judy Cates found “no indication that the court reviewed any of the document prior to issuing a finding of good faith in those cases.”
“The settling parties did not offer even an estimated amount of the final settlement or any basis for the settlement proposed,” she wrote.
“The total lack of information casts a shadow on the legal validity of the settlement itself.”
She directed Gleeson and Lopinot to require production of a trust agreement that appointed plaintiff counsel as trustee.
Without it, she wrote, the court couldn’t possibly know how the trustees would allocate additional funds, if any.
She wrote that she didn’t know if the court considered whether the settlement complied with rules of professional conduct.
The Alabama group later informed clients they received about $10 million.
They wrote that their fees and expenses for experts ran to about $11 million.
In March, about 175 plaintiffs discharged the Alabama group and retained Greg Lathram of Collinsville.