Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 1 of 8 Page ID #:7973
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`BARON & BUDD, P.C.
`Scott Summy (Pro Hac Vice, TX Bar No. 19507500)
`SSummy@baronbudd.com
`Carla Burke Pickrel (Pro Hac Vice, TX Bar No. 24012490)
`cburkepickrel@baronbudd.com
`3102 Oak Lawn Ave, #1100
`Dallas, Texas 75219
`Telephone: (214) 521-3605
`
`BARON & BUDD, P.C.
`John P. Fiske (SBN 249256)
`Fiske@baronbudd.com
`11440 W. Bernardo Court, Suite 265
`San Diego, California 92127
`Telephone: (858) 251-7424
`
`Proposed Lead Class Counsel
`Additional counsel listed on signature page
`
`Mark Anstoetter (Pro Hac Vice)
`manstoetter@shb.com
`Brent Dwerlkotte (Pro Hac Vice)
`dbdwerlkotte@shb.com
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, Missouri 64108
`Telephone: 816-474-6550
`Facsimile: 816-421-5547
`
`Attorneys for Defendants
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
`
`
`CITY OF LONG BEACH, a municipal
`corporation; COUNTY OF LOS
`ANGELES, a political subdivision; CITY
`OF CHULA VISTA, a municipal
`corporation; CITY OF SAN DIEGO, a
`municipal corporation; CITY OF SAN
`JOSE, a municipal corporation; CITY OF
`OAKLAND, a municipal corporation;
`CITY OF BERKELEY, a municipal
`corporation; CITY OF SPOKANE, a
`municipal corporation; CITY OF
`TACOMA, a municipal corporation;
`CITY OF PORTLAND, a municipal
`corporation; PORT OF PORTLAND, a
`port district of the State of Oregon;
`
`
`
`CASE NO.: 2:16-cv-03493-FMO-AS
`
`RESPONSE TO THE OBJECTION
`OF SETTLEMENT CLASS
`MEMBER CITY OF SEATTLE TO
`RE-NOTE PRELIMINARY
`APPROVAL HEARING DATE, OR
`FOR RELIEF FROM DEADLINE
`TO OBJECT, AND TO APPEAR
`AND PRESENT ARGUMENT AT
`PRELIMINARY APPROVAL
`HEARING
`
`Time of Hearing: 10:00 a.m.
`Date of Hearing: October 22, 2020
`
`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
`
`

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`Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 2 of 8 Page ID #:7974
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`Courtroom: 6D
`Honorable Fernando M. Olguin
`
`File Date: May 19, 2016
`Trial Date: May 11, 2021
`
`BALTIMORE COUNTY, a political
`subdivision; MAYOR AND CITY
`COUNCIL OF BALTIMORE; all
`individually and on behalf of all others
`similarly situated,
` Plaintiffs,
`v.
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`MONSANTO COMPANY; SOLUTIA
`INC., and PHARMACIA LLC, and DOES
`1 through 100,
` Defendants.
`
`Plaintiffs and Defendant (together Monsanto Company, Solutia Inc., and
`Pharmacia LLC) (collectively, “the Parties”) submit this joint response in opposition to
`the City of Seattle’s objection to the Parties’ nationwide class action settlement.
`INTRODUCTION
`The City of Long Beach alleged various common-law causes of action against
`Defendant, seeking to recover alleged damages associated with the presence of
`chemical polychlorinated biphenyls (or “PCBs”) in the environment. Several other
`municipal entities filed similar lawsuits against Defendant and, after years of litigation,
`the Parties negotiated a nationwide class settlement to resolve allegations against
`Defendant related to Defendant’s manufacture, sale, testing, disposal, release,
`marketing, promotion, or management of PCBs for alleged PCB-related environmental
`impairments, including impairments to water bodies. (“Settlement Agreement”). See
`ECF 213-1.1 The Parties subsequently filed a renewed Motion for Certification of
`Settlement Class and Preliminary Approval of Class Action Settlement. ECF 213. The
`Court has set a preliminary approval hearing for October 22, 2020. ECF 231.
`ARGUMENT
`Seattle asks the Court to deny preliminary approval of the proposed settlement or
`
`
`1 The City of Seattle objected to the Parties initial request for preliminary approval, see
`ECF 197, and the Parties responded on July 8, 2020. ECF 202.
`2
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`to amend the Parties’ Settlement Agreement. The Court should deny the City of
`Seattle’s objection for several reasons.
`The City of Seattle Lacks Standing to Object to the Settlement.
`I.
`The City of Seattle lacks standing to object. Seattle admits that it preemptively
`filed its objection because it plans “to opt out of the class and continue with its separate
`action against Monsanto[,]” and that once it does, it “will not be able to object to the
`Settlement. . . .” ECF 228 at 5. But the City of Seattle cannot have it both ways: if it is
`going to opt out of the Settlement it cannot object. As Seattle’s filing indicates, it is well
`settled that a class member who opts out of a class settlement lacks standing to object.
`E.g., Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, at *8 (N.D. Cal. Jan. 26, 2007)
`(finding that class member who opted out of settlement lacked standing to object);
`Mayfield v. Barr, 985 F.2d 1090 (D.C. Cir. 1993) (holding “[t]hose who are not class
`members, because they are outside the definition of the class or have opted out” lack
`standing to object to class settlement). Rather than wait until all other Settlement Class
`Members are given the opportunity to object, the City of Seattle has manufactured an
`opportunity to object to the Settlement and opt out of the class. The Court should deny
`the City of Seattle’s objection.
`II. The City of Seattle’s Objection is Premature and Inappropriate.
`The Court should deny the City of Seattle’s motion as premature and
`inappropriate.2 The City of Seattle identifies no authority that would allow it to object
`
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`2 The City of Seattle did not seek to intervene under Fed. R. Civ. P. 24. This is not
`surprising because federal courts routinely deny interventions for the purpose of
`objecting to a class settlement, particularly where, as here, intervention could prejudice
`the settling parties and where the intervenors’ interests are protected by a procedure
`permitting them to object to the proposed settlement or opt out of the class entirely. See
`e.g., Zepeda v. PayPal, Inc., 2014 WL 1653246, at *4 (N.D. Cal. Apr. 23, 2014)
`(collecting cases) (courts routinely “den[y] intervention in the class action settlement
`context, citing concerns about prejudice, as well as putative interveners' ability to
`protect their interests by less disruptive means, such as opting out of the settlement class
`or participating in the fairness hearing process”), objections overruled, 2014 WL
`4354386 (N.D. Cal. Sept. 2, 2014).
`
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`3
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 4 of 8 Page ID #:7976
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`to the Parties’ settlement before the preliminary approval hearing, much less require
`revisions to a private contract between the Parties. See Jeff D. v. Andrus, 899 F.2d 753,
`758 (9th Cir. 1989) (“courts are not permitted to modify settlement terms or in any
`manner to rewrite agreements reached by parties.”). Nor does the City of Seattle cite
`any requirement that the Parties resolve potential objections or engage in dialogue over
`term interpretation at this stage. At this stage, “[t]he settlement need only be potentially
`fair, as the Court will make a final determination of its adequacy at the hearing on Final
`Approval.” Acosta v. Trans Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007).3
`The City of Seattle’s tactic to inject itself into the preliminary approval stage is
`not only premature and inappropriate, it would unfairly allow it to leapfrog other class
`members by requiring this Court to entertain what is at best a premature objection to
`the proposed settlement before the normal procedure of hearing objections at the final
`approval stage. The City of Seattle is positioned no differently from other Settlement
`Class Members, and there is no reason to permit it to jump the line and have its objection
`heard before all of the Settlement Class Members have even been notified of the
`proposed settlement, much less had a full opportunity to object or opt out. Indeed, under
`the Parties’ proposed timeline, the deadline for objections or opting out is months away.
`The Court should reject the City of Seattle’s attempt to create this novel and inequitable
`precedent. See Rodriguez v. Farmers Insurance Co. of Arizona, 2013 WL 12109896
`(C.D. Cal. 2013) (explaining that class action practice has long followed a simple three-
`step procedure, “the first of which is a preliminary approval hearing.”) (citing Manual
`for Complex Litigation (Fourth) §§ 21.632 (2012)).
`/ / /
`/ / /
`
`
`3 Contrary to its assertions, neither the City of Seattle’s in-house counsel nor its outside
`firm ever articulated Seattle’s apparent concern over the definition of “Released
`Claims.” When the City of Seattle’s attorney contacted Class Counsel, she did not
`request Class Counsel to clarify the City of Seattle’s objection.
`4
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 5 of 8 Page ID #:7977
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`the Settlement’s
`III. The City of Seattle Incorrectly Interprets
`Contribution Protection and Released Claims Provisions.
`Even if the City of Seattle had standing to prematurely object to the Settlement
`Agreement, it misinterprets the Settlement Agreement’s terms. The City of Seattle
`argues the Settlement’s contribution protection provision coupled with the definition of
`“Released Claims” “may serve to bar” the City of Seattle’s ability to recover a portion
`of its past and future costs in a pending CERCLA action against Settlement Class
`Members, King County, the Port of Seattle, and Pharmacia. Br. at 6. The City of Seattle
`misunderstands the plain language of the Settlement.
`As the City of Seattle notes, the Settlement Agreement expressly preserves
`governmental actions under CERCLA or similar state Superfund statutes: “nothing in
`this Settlement Agreement will preclude or affect any action brought by governmental
`entities seeking response costs, penalties, or other remedies, under the Comprehensive
`Response, Compensation and Liability Act (“CERCLA”) or similar state Superfund
`statutes and applicable regulations, or under any other laws or regulations, related to
`Defendant’s or a Released Person’s discharge or disposal of PCBs.” ECF 213-2 at ¶41.
`The definition explicitly recognizes that the Settlement Agreement does not
`affect claims brought by governmental entities under CERCLA or similar state
`Superfund statutes for harm allegedly caused by “discharge or disposal of PCBs.” Id.
`The City of Seattle notes that CERCLA liability extends to a variety of actions beyond
`discharge and disposal, including “spilling, leaking, pumping, pouring, emitting,
`emptying, injecting, escaping, leaching, [and] dumping … .” Id. at 10 (citing 42 U.S.C.
`§ 9601). The City of Seattle argues that the definition of “Released Claims” could be
`read to exclude only those CERCLA or state Superfund claims based on a discharge or
`disposal, while barring claims based on the laundry list of releases under 42 U.S.C. §
`9601.
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 6 of 8 Page ID #:7978
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`But the plain language of paragraph 41 provides broadly that “nothing” “will
`preclude or affect any action” under CERCLA or similar state statutes based on the
`discharge or disposal of PCBs. A straightforward reading is that the Settlement
`Agreement does not release governmental claims under CERCLA based on Defendant’s
`alleged introduction of PCBs into the environment (as opposed to Defendant’s
`manufacture of PCBs), regardless of the verbiage used to describe it —whether a “leak,”
`“spill,” “leaching,” etc.4
`Indeed, the terms “release,” “disposal,” and “discharge” are defined expansively
`under CERCLA and largely overlap with one another. See 42 U.S.C. § 9601(22)
`(defining “release” to mean “any spilling, leaking, pumping, pouring, emitting,
`emptying, discharging, injecting, escaping, leaching dumping, or disposing”); 42
`U.S.C. § 9601(29) (incorporating definition of “disposal” under RCRA which includes
`“the discharge, deposit, injection, dumping, spilling, leaking, or placing” of
`contaminants onto land or into water); 40 C.F.R. § 300.5 (defining both “discharge” and
`“release” to include “any spilling, leaking, pumping, pouring, emitting, emptying,
`dumping …”); see also Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,
`882 (9th Cir. 2001) (noting “substantial overlap” between CERCLA definitions of
`“disposal” and “release”). The City of Seattle’s narrow focus on construction of the
`terms “discharge” and “disposal” as mere subsets of a “release” (Br. at 10) is
`unsupported and inconsistent with the language of CERCLA. Further, the “Releasing
`Persons” in the Settlement Agreement include only the Named Class Plaintiffs and
`Settlement Class Members, not opt-out class members. ECF 213-2 at ¶43. If the City of
`Seattle timely opts out of the Settlement, as it intends to do, it will not be a “Releasing
`Person” and therefore will not release any claims it may have against any party.
`
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`4 As the City of Seattle recognizes, potential liability imposed under CERCLA and
`similar state statutes on owners and operators of contaminated sites, transporters of
`hazardous substances, and arrangers for disposal of hazardous substances (all of whom
`are potentially responsible parties or “PRPs” under CERCLA), is distinct and separate
`from potential liability based on the manufacture of PCBs. Br. at 10-11.
`6
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`For the same reasons, the City of Seattle’s argument that the Settlement
`Agreement will disrupt and complicate the Duwamish River CERCLA allocation, and
`require the allocator to parse the differences between “releases” and “discharges,” is
`misplaced.
`
`CONCLUSION
`The Parties respectfully request that the Court deny the City of Seattle’s
`objection, and further request that the Court proceed as outlined in the renewed
`Memorandum in Support of Certification of Settlement Class, Preliminary Approval of
`Class Action Settlement, Approval of Notice Plan, Appointment of Class Action
`Settlement Administrator, and Appointment of Class Counsel.
`
`DATED: SEPTEMBER 4, 2020
`
`Respectfully submitted,
` /s/ John Fiske
`BARON & BUDD, P.C.
`Scott Summy (Pro Hac Vice, TX Bar No.
`19507500)
`SSummy@baronbudd.com
`Carla Burke Pickrel (Pro Hac Vice, TX
`Bar No. 24012490)
`cburkepickrel@baronbudd.com
`3102 Oak Lawn Ave, #1100
`Dallas, Texas 75219
`Telephone: (214) 521-3605
`BARON & BUDD, P.C.
`John P. Fiske (SBN 249256)
`Fiske@baronbudd.com
`11440 W. Bernardo Court, Suite 265
`San Diego, California 92127
`Telephone: (858) 251-7424
`Attorneys for Plaintiffs and the Class
`Mark Anstoetter (Pro Hac Vice)
`manstoetter@shb.com
`Brent Dwerlkotte (Pro Hac Vice)
`dbdwerlkotte@shb.com
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, Missouri 64108
`Telephone: 816-474-6550
`Facsimile: 816-421-5547
`Attorneys for Defendants
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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`Case 2:16-cv-03493-FMO-AS Document 235 Filed 09/04/20 Page 8 of 8 Page ID #:7980
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`CASE NO.: 2:16-cv-03493-FMO-AS
`RESPONSE TO OBJECTION
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