Description:
Kansas City, Missouri personal injury lawyers represented Plaintiff, who sued Defendant on a class action product liability theory.
laintiffs filed suit in February 2019, pleading multiple claims arising out of
the allegedly deceptive labelling of Roundup products manufactured by Monsanto.
Specifically, Roundup products bore a label indicating that the active ingredient,
glyphosate, "targets an enzyme found in plants but not in people or pets.†Plaintiffs
alleged, however, that Monsanto knew that glyphosate is in fact present in gut
bacteria in both humans and animals, so the label was false.
In August, the parties attended a formal mediation. Throughout the fall and
winter, they continued to exchange discovery and negotiate the details of a
settlement. As part of this process, both parties commissioned experts to quantify
the measure of damages. The experts surveyed consumers to determine how much
less they might expect to pay for the Roundup product without the misleading label.
Plaintiffs' expert estimated that the misleading label constituted 7.9% to 15.9%
value. Plaintiffs concluded, therefore, that 15.9% of the value of the products
purchased was the best-case damages after victory at trial. Monsanto's expert found
no significant difference in the value of a product with and without the challenged
label and estimated no more than 2.5% of the value as damages.
An initial proposed settlement agreement was presented to the district court
for preliminary approval in March 2020. The parties agreed to a total Common Fund
of $39.55 million. They agreed that Monsanto would not object to Plaintiffs'
counsel seeking 25% of that amount as an attorney's fee. Class members who filed
claims were to receive 10% of the average retail price for the product(s) they bought,
and any remaining funds after the costs of administration would be distributed cy
pres.
Before the district court ruled on that motion, the parties executed a Second
Corrected Class Action Settlement Agreement that made four changes to the initial
agreement: (1) narrowed the scope of the class members' release of claims; (2) added
Plaintiffs' intent, unopposed by Monsanto, to seek an incentive payment of $2,500
for each named plaintiff; (3) proposed two cy pres recipients—the National
Consumer Law Center and the National Advertising Division of the Better Business
Bureau—and clarified the cy pres selection process; and (4) extended the notice
period and opt-out deadline. The notice documents were updated to reflect these
changes, though they did not identify the cy pres organizations specifically. The
district court granted preliminary approval, certified a national settlement class, and
approved notice to putative class members.
The 90-day notice period began on May 28 and ended on August 28, 2020.
The initial forms of notice included: publication in an issue of Better Homes &
Gardens; banner notices on Google, Yahoo!, Facebook, Instagram, and YouTube
targeting individuals with an interest in lawn and garden maintenance; radio and
banner notices on Pandora streaming radio targeted to lawn and garden enthusiasts;
sponsored search advertising on Google Ads for key words related to the litigation;
nationwide news release; and creation of a settlement website and hotline. In July,
midway through the notice period, the parties directed the claims administrator to
initiate a supplemental notice program to augment the notice obtained by the
methods described above. This supplemental notice included: more targeted digital
banners; email distribution to a purchased, curated list of individuals; advertisements
in four digital newsletters on relevant topics; and notices on two class action
aggregation websites. The claims administrator calculated that these combined
notice efforts reached 82% of class members with an average frequency of 2.51
contacts.
In October 2020, the parties sought approval from the district court for another
updated settlement and notice. First, the parties proposed amending the settlement
to allow for a possible upward adjustment of payments to claimants of up to 50% of
product value rather than the 10% figure previously agreed to. They also added a
third proposed cy pres recipient, the Berkeley Center for Consumer Law &
Economic Justice. The parties proposed an additional notice period of 90 days for
the updated notice, which would include the original forms of notice and the
supplemental forms of notice initiated in July, plus new television and radio
advertising. The revised notice would inform class members of the possible pro rata
increase in payments to claimants. The district court approved this proposal.
The supplemental notice and claim period ended on February 16, 2021. The
following week, the claims administrator reported that it had received 285,399 total
claims accounting for slightly more than 1 million products, though it anticipated
rejecting approximately 43,000 of those as duplicative or deficient. This represented
a 2–3% estimated claims rate based on total sales of almost 89 million units during
the relevant period. The validity of some claims had not been verified at the time of
briefing, but the parties indicate that the value of the valid claims will range between
$11.72 million and $13.34 million. The 25% award to the attorneys is $9.89 million,
and the administrator's fees amounted to $1.8 million. This leaves approximately
$14 to $16 million to be distributed cy pres, depending on the final value of the valid
claims.
St. John made three objections to the settlement, all of which she renews on
appeal. First, St. John argues that there are further steps the parties could take to
identify and encourage the participation of more class members. At the very least,
St. John argues, the payment to class members who have made claims should be
increased to 100% of the price of the products purchased before donating proceeds
cy pres. Second, St. John argues that the district court's order allowing funds to be
donated to the cy pres organizations constitutes compelled speech in violation of her
First Amendment rights. Finally, St. John argues that the cy pres should be excluded
from the total value of the Common Fund for purposes of calculating the attorney's
fee and that time spent on related litigation in another district court should be
excluded from the compensable time considered in the lodestar analysis.