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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
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`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
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`Proposed Lead Class Counsel
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
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`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;
`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.
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`CASE NO.: 2:16-cv-03493-FMO-AS
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`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`RENEWED MOTION FOR
`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
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`[Filed Concurrently with Notice Motion
`and Motion]
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`Time of Hearing: 10:00 a.m.
`Date of Hearing: July 22, 2021
`Courtroom: 6D
`Honorable Fernando M. Olguin
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`

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`I.
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`TABLE OF CONTENTS
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`THE COURT’S MAY 19, 2021 ORDER AND JUNE 4, 2021 MINUTE
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`ENTRY ................................................................................................................. 2
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`A.
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`Settlement Agreement Paragraph 71 .......................................................... 2
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`B. Deadline for Applications Under Special Needs Fund, Part B .................. 2
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`C.
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`D.
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`Special Master Costs .................................................................................. 2
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`Proposed Attorneys’ Fees for Class Counsel ............................................. 3
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`II.
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`THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THE
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`PROPOSED SETTLEMENT ............................................................................... 6
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`III. THE COURT SHOULD APPROVE THE CONTENT AND
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`DISTRIBUTION OF THE PROPOSED NOTICE TO THE SETTLEMENT
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`CLASS MEMBERS ............................................................................................. 6
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`IV. THE COURT SHOULD APPOINT CLASS COUNSEL .................................... 6
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`V.
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`ESTABLISHMENT OF FINAL APPROVAL AND FAIRNESS HEARING
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`AND ASSOCIATED DEADLINES .................................................................... 7
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`VI. CONCLUSION .................................................................................................... 7
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`EXHIBIT INDEX ........................................................................................................... 9
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Briseño v. Henderson,
`2021 WL 2197968 (9th Cir. June 1, 2021) ........................................................... 3, 4, 5
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`Glover v. City of Laguna Beach,
`2018 WL 6131601 (C.D. Cal. July 18, 2018) .............................................................. 6
`
`In re Bluetooth Headset Prods. Liab. Litig.,
`654 F.3d 935 (9th Cir. 2011) .................................................................................... 3, 5
`
`In re Magsafe Apple Power Adapter Litig.,
`2015 WL 428105 (N.D. Cal. Jan. 30, 2015) ................................................................. 4
`
`In re Volkswagen “Clean Diesel” Mktg., Sales Practices, and Prods. Liab.
`Litig.,
`895 F.3d 597 (9th Cir. 2018) ................................................................................ 3, 4, 5
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`Rules
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`Fed. R. Civ. P. 23 ........................................................................................................... 1, 7
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`Fed. R. Civ. P. 23(g) .......................................................................................................... 6
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`iii
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`Pursuant to the Court’s May 19, 2021 Order (ECF 273), Plaintiffs respectfully
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`submit this renewed motion for preliminary approval. Plaintiffs incorporate by reference
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`their previously-submitted Points and Authorities in Support of Renewed Motion for
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`Preliminary Approval of Class Action Settlement filed on December 31, 2020 (ECF 256)
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`and March 19, 2021 (ECF 267). Additionally, Plaintiffs address herein the specific
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`matters raised by the Court at the May 19, 2021 hearing, including modifications to the
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`Settlement Agreement made in response to the Court’s comments, as well as the Court’s
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`June 4, 2021 minute entry (ECF 276).
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`Plaintiffs and Defendants Monsanto Company, Solutia Inc., and Pharmacia LLC
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`(collectively, “Monsanto” or “Defendant”) have reached a proposed nationwide class
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`action settlement (the “Settlement”) to resolve allegations that Defendant’s design,
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`manufacture, sale, promotion, and supply of chemicals known as polychlorinated
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`biphenyls (“PCBs”) resulted in the contamination of Plaintiffs’ stormwater and other
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`resources, necessitating treatment and/or remediation to remove PCBs. Subject only to
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`any potential Litigating Entity Sediment Site Entity opt-out, Defendant has agreed to pay
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`$550 million as a net class benefit to be distributed to 2,528 class members across the
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`United States. Defendant also has agreed to separately pay class counsel attorneys’ fees
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`and expenses, special master costs, and class administration and notice costs.
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`This Settlement is the result of contentious, prolonged, arm’s-length negotiations
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`during in-person meetings and numerous telephone conference mediation sessions
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`between early to mid-2019 and March 2020 when a confidential term sheet was executed.
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`The mediation process was led by JAMS mediator Judge (Ret.) Jay Gandhi. The Parties
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`negotiated a resolution to litigation that has been pending since early 2015 in several
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`jurisdictions across the United States. The Settlement confers substantial relief for
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`Settlement Class Members who will automatically receive a minimum payment and may
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`obtain additional payments upon application.
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`The Parties move this Court for an Order pursuant to Fed. R. Civ. P. 23 that would:
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`(1) certify the Settlement Class; (2) preliminarily approve the terms of the proposed
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`Settlement Agreement; (3) approve and direct the proposed Notice Plan; (4) appoint the
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`Class Action Settlement Administrator; and (5) appoint Lead and Co-Class Counsel.
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`I.
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`THE COURT’S MAY 19, 2021 ORDER AND JUNE 4, 2021 MINUTE
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`ENTRY
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`On May 19, 2021, the Court denied without prejudice the Parties’ request for
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`preliminary approval of the Settlement Agreement. ECF 273. The Parties address below
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`the comments raised by the Court at the May 19, 2021 hearing and respond to the Court’s
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`June 4, 2021 minute entry (ECF 276).
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`A.
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`Settlement Agreement Paragraph 71
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`The Parties have revised Paragraph 71 of the Settlement Agreement in response to
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`the Court’s comments at the hearing. Exhibit 1, Settlement Agreement, ¶ 71.1
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`B. Deadline for Applications Under Special Needs Fund, Part B
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`During the hearing, the Court suggested that the deadline for submission of
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`applications under Special Needs Fund, Part B should be one year from the date of a
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`Settlement Class Member’s receipt of payment from the Monitoring Fund, rather than one
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`year from the date of the Final Approval Order. The Settlement Agreement has been
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`modified to incorporate the Court’s suggestion. To provide a single fixed deadline for all
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`Part B applications, the due date has been set at one year and fourteen days from the Class
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`Action Settlement Administrator’s mailing of Monitoring Fund payments to Settlement
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`Class Members. Exhibit 1, Settlement Agreement, ¶ 80(i) and Ex. I (Direct Notice) at 12-
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`13.
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`C.
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`Special Master Costs
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`In response to the Court’s comments at the hearing, the Settlement Agreement has
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`been revised to provide that Defendant will pay Special Master Costs. Exhibit 1,
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`Settlement Agreement, ¶¶ 58, 73 and Ex. I (Direct Notice) at 4. The Special Master will
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`allocate and implement the Settlement with the assistance of the Allocation Experts,
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`1 Attached as Exhibit 1-A, the Parties have provided the Court with a redline of the
`revisions made to the Settlement Agreement.
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`Michael Trapp and Rob Hesse, who developed the allocation algorithm. Allocation
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`Expert Costs also will be paid by Defendant upon the Special Master’s approval of these
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`costs. Id. ¶ 73. With these revisions, Defendant will be separately responsible for all costs
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`to implement the Settlement, including Class Administration, Special Master, and
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`Allocation Expert Costs. Additionally, Defendant will pay Attorneys’ Fees in the amount
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`awarded by the Court, up to $98 million. The Settlement Fund of $550 million remains
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`the same.
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`D.
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`Proposed Attorneys’ Fees for Class Counsel
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`The Court requested that the Parties address the Ninth Circuit’s recent decision in
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`Briseño v. Henderson, 2021 WL 2197968 (9th Cir. June 1, 2021), and how it may relate
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`to attorneys’ fee issues in the present case. ECF 276.
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`In Briseño, the Ninth Circuit reversed a district court’s approval of a consumer
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`fraud class action settlement where the class settlement featured all three red flags noted
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`in In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011): a
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`disproportionate distribution of the settlement to class counsel; a “clear sailing”
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`arrangement in which ConAgra agreed not to challenge the negotiated attorneys’ fees;
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`and a “kicker” clause in which ConAgra received remaining funds if the court reduced
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`the agreed-upon attorneys’ fees. 2021 WL 2197968, at *8.
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`Although it found that the class settlement ran “afoul of all three Bluetooth factors,”
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`the Ninth Circuit was careful to note that the three factors were not “an independent basis
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`for withholding settlement approval.” Id. at *9. Indeed, the Ninth Circuit stated that
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`“disproportionate fee awards, clear sailing agreements, and kicker clauses all may be
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`elements of a good deal,” provided the district court scrutinizes them where they appear.
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`Id. (emphasis added); see also In re Bluetooth, 654 F.3d at 949; In re Volkswagen “Clean
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`Diesel” Mktg., Sales Practices, and Prods. Liab. Litig., 895 F.3d 597, 611 (9th Cir. 2018)
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`(explaining that the Bluetooth factors are mere “guideposts” and that “[d]eciding whether
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`a settlement is fair is ultimately ‘an amalgam of delicate balancing, gross approximations
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`and rough justice,’ best left to the district judge, who has or can develop a firsthand grasp
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`

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`of the claims, the class, the evidence, and the course of the proceedings—the whole gestalt
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`of the case.”) (internal citation omitted).
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`The settlement agreement in Briseño could not withstand such scrutiny.
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`Significantly, the settlement fund was established on a claims-made basis—so that
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`ConAgra was required to pay only for claims actually submitted by members of the
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`class—yet no direct notice of the settlement was provided to class members. 2021 WL
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`2197968, at *8. In valuing the settlement, the parties had assumed that all class members
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`would make claims, but in the end, “barely more than one-half of one percent of them
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`submitted a claim.” Id. at *3. And while the parties had represented the value of the
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`agreed-upon injunctive relief to be $27 million, the Ninth Circuit found the injunctive
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`relief was “illusory” and “practically worthless.” Id. at *10-11. When compared to the
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`relief that was actually provided to the class ($1 million), the attorney fee award ($5.85
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`million in fees and more than $900,000 in expenses) was grossly disproportionate.
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`This Settlement is more akin to the settlement approved by the Ninth Circuit in In
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`re Volkswagen, which included a “reversion” of un-awarded attorneys’ fees to
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`Volkswagen. The Ninth Circuit rejected an objector’s argument that the “reversion”
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`provision made it impossible to know the true value of the settlement to the class. 895
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`F.3d at 611. In rejecting the objection, the court found that the district court adequately
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`explained why the reversion raised no specter of collusion, including because “from a
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`class member’s perspective, the benefits available are quite substantial, worth at least
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`thousands of dollars, and in some cases more, to each class member. Given the amounts
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`at stake, there is little chance class members will forego the benefits because of the effort
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`of lodging a claim.” Id. at 612; see also In re Magsafe Apple Power Adapter Litig., 2015
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`WL 428105, at *8 (N.D. Cal. Jan. 30, 2015) (approving settlement with clear sailing and
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`“kicker” provisions in light of significant benefits awarded to the class).
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`Unlike the settlement in Briseño, this Settlement is fair, reasonable, and plainly free
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`of collusion. It provides substantial monetary relief to every Settlement Class Member—
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`like in In re Volkswagen.2 The Monitoring Fund will provide a minimum payment to each
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`Settlement Class Member, and the TMDL Fund will provide further compensation to
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`certain Settlement Class Members. Beyond these payments, additional funds are available
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`by application, including the Sediment Sites Fund, Special Needs Fund Part A, and
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`Special Needs Fund Part B, which is available to any Settlement Class Member who
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`applies and makes the requisite showing.
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`Further, the class award is fixed, entirely monetary, and segregated from the costs
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`to implement the settlement (which will be paid by Defendant as set forth in the revised
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`Settlement Agreement) and attorneys’ fees (which will be determined by the Court and
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`paid by Defendant). No part of the class award is injunctive relief, which the Ninth Circuit
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`found difficult to quantify in Bluetooth and without any value in Briseño. See In re
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`Bluetooth, 654 F.3d at 945; Briseño, 2021 WL 2197968, at *10. Direct notice of the
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`Settlement will be provided to all Settlement Class Members, and it is anticipated that
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`there will be significant participation in light of the monetary benefits offered. The
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`Settlement in the present case is not comparable to the consumer fraud settlements in
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`Bluetooth and Briseño. When the substantial relief that each Settlement Class Member
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`will receive under this Settlement is considered, the attorneys’ fee provisions are
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`reasonable and appropriate and “elements of a good deal” under Bluetooth and its
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`progeny. Briseño, 2021 WL 2197968, at *9.
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`2 As the Parties have previously indicated, the total proceeds in the Settlement Fund
`($550,000,000) may be reduced in only one limited circumstance. The Sediment Sites
`Fund is allocated up to $150,000,000 of the total Settlement Fund to compensate twelve
`“Qualifying Sediment Site Entities.” Exhibit 1, Settlement Agreement, ¶ 79(c). Certain
`“Qualifying Sediment Site Entities” are also “Litigating Entities.” Id. ¶ 80(c). If a
`“Litigating Entity Qualifying Sediment Site Entity” opts out of the settlement,
`Defendant’s obligation to pay into the Sediment Sites Fund would be reduced by
`$12,500,000. Id. ¶ 79(e). The Parties anticipate that only one such class member will opt
`out of the Settlement. See Dec. 31, 2020 Renewed Motion (ECF 256) at 67. This provision
`is appropriate because Defendant will be required to continue litigating against at least
`one opt-out Settlement Class Member. See March 19, 2021 Renewed Motion (ECF 267)
`at 10.
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
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`

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`II. THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THE
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`PROPOSED SETTLEMENT
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`For the reasons set forth in the December 31, 2020 Renewed Motion (ECF 256)
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`and March 19, 2021 Renewed Motion (ECF 267), as supplemented and modified by the
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`present Motion, the Parties request that the Court grant preliminary approval of the
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`proposed settlement because it satisfies the procedural and substantive standards and
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`merits preliminary approval. See Glover v. City of Laguna Beach, 2018 WL 6131601, at
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`*2 (C.D. Cal. July 18, 2018) (quoting In re Tableware Antitrust Litig., 484 F. Supp. 2d
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`1078, 1079-80 (N.D. Cal. 2007) (citation omitted)) (“If the proposed settlement ‘appears
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`to be the product of serious, informed, non-collusive negotiations, has no obvious
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`deficiencies, does not improperly grant preferential treatment to class representatives or
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`segments of the class, and falls within the range of possible approval,’ the court should
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`grant preliminary approval of the class and direct notice of the proposed settlement to the
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`class.”).
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`III. THE COURT SHOULD APPROVE THE CONTENT AND DISTRIBUTION
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`OF THE PROPOSED NOTICE TO THE SETTLEMENT CLASS
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`MEMBERS
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`Here, the Parties propose that the Court require the Class Action Settlement
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`Administrator to provide Notice of the proposed Settlement as described above and in the
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`Settlement Agreement and Notice Plan. The proposed Class Action Settlement
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`Administrator has also attested that implementation of the Notice Plan in the manner set
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`forth in the Settlement Agreement is fair, appropriate and constitutes “the best notice
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`practicable” under the circumstances. See Exhibit B to December 31, 2020 Renewed
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`Motion (ECF 256), Declaration of Steve Weisbrot, ¶¶ 11, 23.
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`IV. THE COURT SHOULD APPOINT CLASS COUNSEL
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`Pursuant to Fed. R. Civ. P. 23(g), a court certifying a case as a class action “must
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`appoint class counsel.” Class Counsel respectfully request that the Court appoint them as
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`Class Counsel. The experience and qualifications of the proposed Class Counsel are
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` RENEWED MOTION FOR CERTIFICATION
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`established, and the proposed Class Counsel will zealously prosecute the claims of the
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`Settlement Class Members.3 See Exhibit C to December 31, 2020 Renewed Motion (ECF
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`3
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`256), Declaration of Scott Summy; Exhibit D to December 31, 2020 Renewed Motion
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`4
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`(ECF 256), Declaration of John Fiske. The Court should appoint Scott Summy, John
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`5
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`Fiske, and Carla Burke Pickrel of Baron & Budd, P.C. as Lead Class Counsel, and John
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`Gomez of Gomez Trial Attorneys, John R. Wertz, Esq., and Richard Gordon and Martin
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`Wolf of Gordon Carney & Wolf as Co-Class Counsel.
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`V. ESTABLISHMENT OF FINAL APPROVAL AND FAIRNESS HEARING
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`10
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`AND ASSOCIATED DEADLINES
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`The Parties propose the following schedule regarding Notice to the Settlement
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`11
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`Classes and final approval of the Settlement Agreement:
`
`Event
`
`Time For Compliance
`
`Preliminary Approval Hearing
`
`
`Entry of Preliminary Approval Order
`
`July 22, 2021
`
`TBD
`
`Direct Notice Mailed to Settlement
`Class Members
`
`14 days from entry of Preliminary
`Approval Order.
`
`Deadline for Opting Out or Objecting
`
`65 days from Notice.
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`Final Approval Hearing
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`TBD
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`20
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`21
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`VI. CONCLUSION
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`22
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`For the reasons stated above, and in Plaintiffs’ December 31, 2020 and March 19,
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`23
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`2021 Renewed Motions for Preliminary Approval of Class Action Settlement (ECF 256
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`24
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`and 267), the proposed Settlement Agreement is the product of serious, non-collusive,
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`25
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`arm’s-length negotiations, and is a fair, reasonable, and adequate resolution of Plaintiffs’
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`26
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`claims. The proposed Notice and Notice Plan also satisfy Rule 23’s due process
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`27
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`28
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`3 Defendant takes no position on the appointment of Class Counsel, except that certain
`Lead and Co-Class Counsel are contemplated and agreed to in the Settlement Agreement.
`7
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`
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
`
`

`

`Case 2:16-cv-03493-FMO-AS Document 278-1 Filed 06/17/21 Page 11 of 12 Page ID
`#:10129
`
`
`
`1
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`requirements. As a result, the Parties respectfully request that the Court grant their motion
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`2
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`and enter the proposed order attached hereto which: (1) grants certification of the
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`3
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`Settlement Class; (2) grants preliminary approval of the Settlement Agreement; (3)
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`4
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`approves the Notice and Notice Plan; (4) appoints Class Counsel; and (5) appoints Steven
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`5
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`Weisbrot of Angeion Group, LLC as Class Action Settlement Administrator.
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`18
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`19
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`20
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`25
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`26
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`27
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`28
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`
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`Dated June 17, 2021
`
`
`
`
`
`Respectfully submitted,
`
`
`
` /s/ John Fiske
`BARON & BUDD, P.C.
`11440 W. Bernardo Court, Suite 265
`San Diego, California 92127
`Telephone: (858) 251-7424
`
`BARON & BUDD, P.C.
`Scott Summy (admitted Pro Hac Vice, Texas Bar
`No. 19507500)
`SSummy@baronbudd.com
`Carla Burke Pickrel (admitted Pro Hac Vice,
`Texas Bar No. 24012490)
`cburkepickrel@baronbudd.com
`3102 Oak Lawn Ave, #1100
`Dallas, Texas 75219
`Telephone: (214) 521-3605
`
`
`Attorneys for Plaintiffs and the Class
`
`
`
`8
`
`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
`
`

`

`Case 2:16-cv-03493-FMO-AS Document 278-1 Filed 06/17/21 Page 12 of 12 Page ID
`#:10130
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`
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`EXHIBIT INDEX
`
`1
`
`EX. DESCRIPTION
`
`Settlement Agreement (with all Exhibits)
`
`1-A Settlement Agreement Redline
`
`
`
`
`9
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`CASE NO.: 2:16-cv-03493-FMO-AS
` RENEWED MOTION FOR CERTIFICATION
`
`