Lead counsel fights other firms over Roundup fees

A fight has broken out over fees in the $11 billion Roundup weedkiller settlement.

Firms that led the litigation seek to be compensated an additional $800 million from others that used their work to secure deals of their own.

But a federal judge in San Francisco indicated skepticism Wednesday about his power to force all current and future plaintiffs suing Monsanto to pay the lead firms from their recoveries. He said he was inclined to rule that he does not have such authority over cases in state courts.

"It's outside the scope of my reach," said U.S. District Judge Vince Chhabria.

Aimee Wagstaff of Andrus Wagstaff, Robin Greenwald of Weitz & Luxenberg and Michael Miller of the Miller Firm were appointed in 2016 to lead consolidated lawsuits against Monsanto accusing its weedkiller of causing cancer. In re: Roundup Products Liability Litigation, 16-md-02741 (N.D. Cal., filed Oct. 4, 2016).

The leading firms moved in January for the judge to hold back 8.25% of all fees, which could be as much as $800 million under the Bayer-owned company's approximation that it's agreed to pay $11 billion in settlements.

Under questioning by Chhabria during the contentious virtual hearing pitting attorneys in the multi-district litigation against each other, Greenwald emphasized that every plaintiff who's settled with Monsanto was only able to do so because of the work accomplished by lead counsel.

"The small number of cases worked up are what triggered this court and Monsanto to come to the bargaining table, not only with leadership but with most of the lawyers out there," she said, noting that the judge already approved in 2017 the creation of a so-called common benefit fund in a pretrial order.

But Chhabria responded that he's leaning toward reversing his position on the issue, because he does not have authority over cases in state court.

The doctrine allowing the creation of the fund is intended to compensate lead plaintiffs who take on disproportionate costs and risk as the first to file lawsuits. In this case, the leading three firms reviewed millions of documents, responded to appeals and won three test cases in federal and state court, among other work, all on their clients' dime.

"The purpose of the common benefit fund has morphed," Chhabria said, commenting that they are too frequently approved. "It's no longer about making sure lead plaintiffs are made whole and became more about obsessing over free-riders and not wanting free-riders to get any unfair benefit from the work of lead counsel."

Greenwald challenged the judge's claim that he does not have the power to order hold backs in cases outside federal court. Such a finding would "disincentivize lawyers in the future from dedicating time and efforts into a case like this," she said.

"You're talking about a policy issue now," Chhabria replied. "I don't see how it's relevant to the authority of the federal court to reach a particular distance to particular parties."

There are roughly 4,000 cases in federal court compared to roughly 200,000 cases in state court. If lead counsel is allowed to establish a common benefit fund, all plaintiffs in state court would be subject to an order diverting some of their recoveries to approximately 20 firms that worked up the multi-district litigation.

In any case, Chhabria also questioned whether the leading firms have already been adequately compensated for their work since they secured premium settlements from Monsanto to settle their cases.

Objectors have noted that the Miller Firm might stand to recover as much as $340 million in fees from their own clients. It's been reported that the firm settled over 5,000 cases for roughly $849 million for an average settlement of $160,000, which some attorneys have said is substantially less than what was offered to them from Monsanto.

The Miller Firm has denied that the settlement figures are accurate.

Chhabria asked Wagstaff whether she believes she's been fairly paid for her work in the litigation after Miller deflected answering the question multiple times.

"Monsanto had a finite amount of money they've been willing to settle for," she responded. "Our clients did lose money on settlements based on the infusion of hundreds of thousands of cases. Because our fees are tied to our clients, we lost money based on our success."

The judge did not say when he would issue a ruling.