BELLEVILLE – A proposed class action has been filed against lawyers in pollution litigation against Monsanto in St. Clair County Circuit Court.
Attorney Greg Lathram of Collinsville filed the malpractice case on April 24, alleging improper and egregious acts and omissions.
Lead plaintiffs Jacqueline Everson, Tyrha Dooley and Rebecca Lynn Swanigan, as administrator of the estate of Kathryn Dorman, propose to lead the case on behalf of 11,546 other claimants against defendants the Environmental Litigation Group of Birmingham, Ala., and its lawyers Gregory Cade, Kevin McKie, and Gary Anderson.
The suit also seeks damages from local lawyers Paul Schoen, Lloyd M. Cueto, Christopher Cueto, and Troy Walton, and from their firms.
It claims the legal team violated professional rules of conduct by negotiating an aggregate settlement for clients who alleged individual injuries.
“An individual litigant should not be bound by an aggregate settlement unless he has been informed of all the material terms of the settlement and has specifically agreed to the terms of the settlement,” the suit claims.
It alleges “conflicts of interest that prevented plaintiffs from receiving the full benefit of zealous legal representation to which they were entitled.”
The Alabama group recruited plaintiffs in and around East St. Louis after securing a $700 million settlement over pollution at a Monsanto plant in Anniston, Ala. in 2003.
Lawyers told prospective clients their claims could exceed the Anniston settlement, due to worse pollution and a greater number of persons with injuries.
The Alabama group and local counsel filed 20 suits for 1,022 plaintiffs in 2009, seeking damages from Monsanto and metal recycler Cerro Flow Products.
They claimed Monsanto and Cerro released hazardous substances for more than 70 years and concealed the health risks, they also alleged property damage.
They filed no suit for 10,524 other clients who had retained them.
In 2010, the parties signed a tolling agreement that stayed all issues but discovery while they engaged in mediation.
In 2014, Monsanto agreed to pay $10 million to active plaintiffs and the bigger group that hadn’t sued.
The Alabama group and local counsel then filed 111 suits for the bigger group, naming only Cerro as defendant.
In 2015, the Alabama group and local counsel moved to establish a settlement fund.
They stated Monsanto would soon make a first payment.
According to the legal malpractice class action, the lawyers stated they hadn’t determined the exact compensation of each individual and couldn’t finalize the distribution.
The lawyers allegedly acknowledged that Monsanto would deduct the payments from its taxes before individual amounts were determined, and promised that after all settlement money had been allocated, a fund administrator would detail all distributions.
The court granted the motion on the day it was filed, and there was no indication on the docket that a hearing was held.
In 2016, the Alabama group and local counsel moved for findings that the small group and the big group settled with Monsanto in good faith.
They wrote that each plaintiff received money and might in the future receive additional money. They moved to discharge any potential liability of Monsanto and bar any contribution claims from Cerro.
At a hearing, Monsanto counsel said plaintiffs didn’t know how much each would receive but everyone who signed a release already had received $600.
Current Chief Judge Andrew Gleeson and former circuit judge Vincent Lopinot found good faith and sealed settlement documents, releases, and transcripts.
Cerro appealed.
Fifth District appellate judges reversed Gleeson and Lopinot in 2018, finding no evidence that they read the documents.
In the appellate ruling, Justice Judy Cates wrote that Monsanto and plaintiffs provided little information and characterized the hearings as routine.
She found no explanation as to how the parties arrived at a $600 base payment or why plaintiffs were treated identically.
She wrote that an agreement on the distribution method was never produced nor were its terms discussed.
Plaintiffs Everson, Dooley, and Swanigan fired their lawyers and retained Lathram.
The lawsuit proposes that they represent all individuals in the 2009 and 2014 cases who signed releases and negotiated checks.
It alleges that the Alabama group and local counsel failed to provide accurate information about the course of the litigation and the settlement, and that they failed to provide copies of the settlement and distribution agreements or explain their meaning and effect.
The lawyers owed an unqualified fiduciary duty of loyalty, due care and good faith, requiring them to act solely in each plaintiff’s best interest, but conflicts of interest allegedly tainted representation of each plaintiff.
Those alleged conflicts arose from concurrent representation of clients with competing interests and from personal interests and financial incentives, the suit claims.
The suit quotes an Illinois rule that a lawyer representing two or more clients shall not participate in an aggregate settlement unless each client gives informed consent.
That disclosure should include the existence and nature of all claims and the participation of each person, and a lawyer must inform each client about terms of the settlement including what other clients will receive, the suit claims.
“Defendants negotiated an aggregate settlement of all of these claims, resulting in a settlement that was not based on individual, fact specific negotiations of each person’s claims and damages,” the suit says.
It further states that defendants failed to disclose that compensation allocated to one plaintiff would adversely affect compensation available to others, that they didn’t disclose that compensation might be limited to $600, in exchange for forever releasing Monsanto from liability, that they didn’t explain the meaning and effect of the release before requiring each plaintiff to sign it at group meetings and that releases failed to inform plaintiffs that they consented to an aggregate settlement or that there was no independent evaluation of damages.