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Wednesday, September 18, 2019

No order entered yet on Monsanto good faith finding in settlement of 11K pollution claims


By Record News | May 29, 2019

BELLEVILLE – Monsanto has answered questions of Fifth District appellate judges about settlement of 11,256 pollution claims, Bruce Cook argued for Monsanto at a May 22 hearing. 

He asked Chief Judge Andrew Gleeson to enter a good faith order and discharge Monsanto from further liability, saying plaintiffs understood the settlement when they signed releases. 

“They participated in this and took our money,” he said. 

Gleeson had not entered an order as of May 28. 

Fifth District judges vacated a previous good faith order in April 2018. 

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

She questioned whether plaintiffs made informed choices, and called for special scrutiny of legal fees. 

Litigation started in 2009, with 1,022 plaintiffs alleging physical injuries and property damage from 70 years of contamination. 

Their lawyers at Environmental Litigation Group in Alabama sued metal recycler Cerro Flow along with Monsanto. 

Former chief judge John Baricevic stayed the action in favor of mediation. 

In 2014, Monsanto agreed to pay $600 each to most of the plaintiffs from 2009 and to most among 10,234 plaintiffs who filed a second round of suits. 

Gleeson and former circuit judge Vincent Lopinot signed a good faith order in 2016, relieving Monsanto of all liability. 

They sealed settlement documents and a transcript of their good faith hearing. 

Cerro appealed, claiming the judges improperly denied it the right to seek contribution from Monsanto in the event of a jury verdict. 

Fifth District judges found no indication that the judges reviewed any of the settlement agreement prior to issuing a finding of good faith. 

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

She wrote that she didn’t know if the court considered whether the settlement complied with rules of professional conduct. 

Plaintiffs complained to their Alabama lawyers and made public statements.

The lawyers answered by letter, telling clients Monsanto paid about $21 million. 

Plaintiffs received about $10 million, while lawyers and their experts received about $11 million. 

Gleeson had set a first trial against Cerro for this year, which had been postponed July 8. 

This February, by agreement of the parties, Gleeson ordered Monsanto to file a good faith motion. 

He ruled that if he hadn’t signed a good faith order by May 8, he would vacate Cerro’s trial date. 

In March, 175 plaintiffs discharged the Alabama lawyers and retained Gregory Lathram of Collinsville. 

Cook filed a good faith motion on May 6, stating that the settlement was supported by consideration and plaintiffs signed releases. 

On May 20, Cerro counsel Thomas Ysursa wrote that the motion cited a case holding that a client may ratify an attorney’s authority to settle. 

“That general proposition may be true, but it is not a way around the appellate court’s decision,” Ysursa wrote. “Here, the issue of good faith remains the same, the parties are the same, and the basic underlying facts have not changed.” 

Lathram, representing those who fired their lawyers, appeared at the hearing. 

Gleeson told Lathram, “You are not involved in this.” 

He said Lathram’s cases were on the docket of Circuit Judge Stephen McGlynn. 

Lathram said issues at the hearing had an effect on his clients. 

Gleeson said, “Your objection is denied.” 

Cook said an affidavit of Monsanto counsel Ronald Hobbs answered the appellate court’s questions. 

He quoted the Alabama group’s letter stating that dioxin was a more likely cause of injuries than polychlorinated biphenyls, or PCBs. 

The Alabama group claims Cerro produced dioxin and Monsanto produced PCBs. 

Cook asked Gleeson to take judicial notice of the letter to clients. 

Ysursa objected and said Cook didn’t send it or receive it. 

Gleeson asked Cook if plaintiff Jacqueline Everson filed it, and Cook said yes. 

Everson led the group that broke away and hired Lathram. 

Gleeson said, “It’s a lot of the information the appellate court was looking for.” 

He said there was considerable disclosure of terms and fees. 

Ysursa called it hearsay and said it didn’t provide enough information for consent. 

Although Gleeson ruled that he would vacate Cerro’s trial date if he hadn’t signed a good faith order by May 8, the trial remained on his docket as of May 28.      

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