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8th Circuit panel affirms $21.5 million settlement in Monsanto labeling suit

A panel of the 8th U.S. Circuit Court of Appeals has upheld a $21.5 million settlement between Monsanto and a national class of plaintiffs who claimed the labeling on the concentrated version of the herbicide Roundup was misleading.

The settlement, approved in May 2018 by U.S. District Judge Audrey G. Fleissig, was challenged on several grounds by California class member Joseph Migliaccio, but on Aug. 20 the panel affirmed Fleissig’s approval order.

“Upon review, we conclude that the class members were adequately represented and that the settlement was reasonable, fair, and adequate,” wrote Chief Judge Lavenski R. Smith, with Judge Morris S. Arnold and Judge Jane Kelly concurring.

The case began in California, where a district court granted class certification. Class counsel then filed in the U.S. District Court for the Eastern District of Missouri, where Monsanto has its headquarters. The California plaintiffs and plaintiffs from every other state consolidated their claims in that venue.

Their central allegation was that the label on concentrated Roundup misled consumers about how much standard-strength herbicide they could produce by diluting it. For example, Monsanto claimed on one label that the concentrated product could be used to make 10 gallons, but when diluted according to package instructions, it made only five gallons.

The parties reached a nationwide settlement under which Monsanto would establish a $21.5 million non-reversionary common fund for claims, notice and administration costs; incentive awards; and attorneys’ fees. The class administrator validated 70,360 claims valued at $10,732,832. Class counsel sought one third of the common fund for $7.17 million.

After Fleissig issued a preliminary approval, Migliaccio objected to certification of the nationwide class and to the fairness of the settlement. Fleissig overruled his objection and granted final approval. Migliaccio appealed to the 8th Circuit, where the panel as well ruled against him.

Migliaccio argued that the consolidation of the California class with the nationwide class diluted the California class members’ claims, thus creating a conflict of interest for class counsel that made their representation inadequate. He further objected to the attorneys’ fees and argued that the remaining monies in the common fund should not be donated to the National Consumer Law Center, the Better Business Bureau and two community gardening nonprofits, but rather should be distributed to the class members. Fleissig rejected all of his arguments.

Sidney W. Jackson, a member of the class counsel team and a partner at Jackson & Foster in Mobile, Alabama, said the settlement will put “serious, legitimate money into the class members’ pockets.”

“Purchasers will get up to $1,000 back,” Jackson said, “so the settlement is basically paying class members the full amount we would’ve recovered had we gone to trial.” The team also included Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger in San Diego and Kevin J. Dolley in St. Louis.

Monsanto’s attorneys on appeal included John J. Rosenthal and Scott R. Phillips at Winston & Strawn in Washington, D.C. They did not respond to a request for comment.

Migliaccio’s attorney on appeal was Robert W. Clore of the Bandas Law Firm in Corpus Christi, Texas. He did not respond to a request for comment.

The appeals case is Joshua Rawa et al v. James Migliaccio, 18-2346; the district court case is Rawa et al. v. Monsanto Company, 4:17-cv-01252.