Last month, we published a guest post by Hofstra consumer law scholar Norm Silber expressing serious concerns about a proposed Roundup class action settlement. Professors Silber and Myriam Gilles of Northwestern have coauthored an amicus brief urging a federal court to grant injunctive or declaratory relief to enable the court to evaluate aspects of the settlement (I joined the brief, and kibitzed a bit in the drafting, but Professors Silber and Gilles really carried this one). Here’s the brief’s conclusion:
Notices incorporated in the Proposed King Settlement seriously misrepresent settlement imperatives, violating Rule 23 and producing voidable agreements to join the class. The Court accordingly should grant the injunctive or declaratory relief requested by the petitioners deciding that as part of the MDL process it will evaluate the facts and circumstances of agreements to settle to determine whether they preclude litigation effectively.
The Settlement Proposal is structured to reward attorneys who discourage opting out of settlements, reducing the prospects for a fairer settlement within the MDL process. The Court accordingly should protect its jurisdiction by enjoining Monsanto from enforcing Section 15.4,15.6, and 15.7 as conditions of fee eligibility pending a fairness hearing or by declaring that those provisions are unenforceable because they run contrary to attorneys’ professional duties under the Rules of Professional Conduct.
The procedures embodied in the Settlement Proposal enable defendants to inhibit opt-outs, are unfair to plaintiffs, and undermine access to federal court. The Court accordingly should protect its jurisdiction by enjoining enforcement of the knockout, clawback, and walkaway provisions pending a fairness hearing, or in the alternative, declare those provisions unenforceable as against the plaintiffs’ constitutionally protected opt-out rights.
Unreasonable caps on the recovery of damages and bars to future claimants’ ability to seek punitive damages, furthermore, warrant injunctive or declaratory relief to satisfy fundamental concerns of fairness to parties who were inadequately represented by class representatives at the time of the approval of the settlement.
Finally, permitting the unmodified proposed settlement to procced would incentivize the continuing commercialization of poisonous products subsequent to the settlement. If this court abides the Proposed King Settlement without taking injunctive or declaratory action, the well-developed jurisprudence of other toxic-tort multi-district litigation is likely to be circumvented in
future cases, supplanting well-reasoned precedent and specialized federal courts.
