Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 1 of 21
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`Elizabeth A. Fegan
`FEGAN SCOTT LLC
`150 S. Wacker Dr., 24th Fl.
`Chicago, IL 60606
`Ph: 312.741.1019
`Fax: 312.264.0100
`beth@feganscott.com
`
`Additional Counsel for
`Plaintiff Aaron Sheller on Signature Page
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`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`PRODUCTS
`
`
`ROUNDUP
`IN
`RE:
`LIABILITY LITIGATION
`
`
`This document relates to:
`
`Sheller v. Bayer AG, et al., Case No. 3:19-cv-
`07972
`
`Ramirez, et al. v. Monsanto Co., Case No.
`3:19-cv-02224
`
`
`
`MDL No. 2741
`Case No. 16-md-02741-VC
`PLAINTIFF AARON SHELLER’S
`CORRECTED SECOND RENEWED
`MOTION TO APPOINT FEGAN
`SCOTT LLC AS INTERIM CLASS
`COUNSEL FOR THE MEDICAL
`MONITORING CLASS
`
`Hearing Date: September 24, 2020
`
`Time: 10:00 a.m.
`
`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
`
`

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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 2 of 21
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`TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE THAT beginning on September 24, 2020 at 10:00 a.m., in
`Courtroom 4 of the United States District Court, Northern District of California, located at 450
`Golden Gate Avenue, San Francisco, CA 94102, or as ordered by the Court, Plaintiffs Aaron
`Sheller and Kabe Cane (“Movants”) will present Mr. Sheller’s Second Renewed Motion to
`Appoint Fegan Scott LLC as Interim Class Counsel for the Medical Monitoring Class.
`Movants seek appointment of Fegan Scott LLC as Interim Class Counsel for the Medical
`Monitoring Class. Movants’ Motion is brought pursuant to Fed. R. Civ. P. 23(g) and is based on
`this Notice, the following memorandum of points and authorities, the exhibits appended thereto,
`and any additional argument or evidence this Court may consider.
`
`
`Dated: August 24, 2020
`
`
`
`
`
`
`
`/s/ Elizabeth A. Fegan
`Elizabeth A. Fegan
`FEGAN SCOTT LLC
`150 S. Wacker Dr., 24th Floor
`Chicago, IL 60606
`T: 312-741-1019
`F: 312.264.0100
`beth@feganscott.com
`
`Counsel for Movants and
`Proposed Interim Lead
`Counsel for the Medical
`Monitoring Class
`
`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 3 of 21
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`TABLE OF CONTENTS
`
`INTRODUCTION ...........................................................................................................1
`RELEVANT FACTUAL AND PROCEDURAL HISTORY ...........................................5
`Summary of Factual Allegations against Defendants ..................................................5
`The Litigations...........................................................................................................5
`The Withdrawn Settlement and Continuing Settlement Negotiations ..........................7
`The proposed settlement terms disproportionately prejudiced the Medical
`1.
`Monitoring Class. ............................................................................................................7
`2.
`The terms of the Settlement reflected immutable conflicts of interest which are
`important to understand the backdrop against which settlement negotiations continue. ....8
`Meet and Confers .......................................................................................................9
`LEGAL STANDARD .....................................................................................................9
`III.
`ARGUMENT ................................................................................................................ 10
`IV.
`Appointment of Interim Class Counsel is necessary to protect the interests of the
`A.
`Medical Monitoring Class. .................................................................................................. 10
`B.
`Settling Counsel’s belated, informal designation of subclass counsel fails to protect
`the class’s interests. ............................................................................................................. 12
`C.
`Fegan Scott should be appointed interim class counsel. ............................................ 14
`CONCLUSION ............................................................................................................. 15
`
`A.
`B.
`C.
`
`D.
`
`
`I.
`II.
`
`V.
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`
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 4 of 21
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`TABLE OF AUTHORITIES
`
`Cases
`
`Ortiz v. Fibreboard Corp.,
`527 U.S. 815 (1999) ........................................................................................................ 4, 11, 12, 13
`Amchem Prods. v. Windsor,
`521 U.S. 591 (1997) ......................................................................................................................... 4
`Hanlon v. Chrysler Corp.,
`150 F.3d 1011 (9th Cir. 1998) ................................................................................................... 10, 11
`In re Navistar Maxxforce Engines Mktg., Sales Practices & Prods. Liab. Litig.,
`No. 2590, 2015 U.S. Dist. LEXIS 34662 (N.D. Ill. Mar. 5, 2015) ................................................... 10
`Literary Works in Elec. Databases Copyright Litig. v. Thomson Corp.,
`654 F.3d 242 (2d Cir. 2011) ...................................................................................................... 11, 13
`Simpkins v. Wells Fargo Bank, N.A.,
`2013 WL 12051028 (S.D. Ill. June 28, 2013) ................................................................................. 10
`Smith v. Sprint Commc’ns Co., L.P.,
`387 F.3d 612 (7th Cir. 2004) .......................................................................................................... 12
`Walker v. Discover Fin. Servs.,
`No. 10-cv-6994, 2011 U.S. Dist. LEXIS 58803 (N.D. Ill. May 26, 2011) ....................................... 10
`
`Rules
`
`Fed. R. Civ. P. 23 ..................................................................................................................... 2, 4, 9, 10
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 5 of 21
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`I.
`
`INTRODUCTION
`It is a fundamental principle in class actions and mass tort cases that “[f]uture claimants
`must be separated from current claimants and represented by named plaintiffs and subclass counsel
`whose loyalties run exclusively to them.” See Declaration of Professor Charles Silver on Adequacy
`of Representation (“Silver Decl.”), at 6, attached as Ex. A. Professor Silver, the Roy W. and
`Eugenia C. McDonald Endowed Chair in Civil Procedure at the University of Texas School of
`Law and respected expert in the fields of, inter alia, professional responsibility and class actions,
`explains:
`
`The importance of ‘clarif[ying] responsibility for protecting the
`interests of the [sub]class during precertification activities, such as .
`. . negotiating settlement’ is obvious and cannot be exaggerated. All
`settlement negotiations fix the amounts that claimants will receive.
`When groups of plaintiffs with divergent interests compete for
`shares of the amount a defendant is willing to contribute to a global
`resolution, groups that are not represented by loyal advocates bent
`on maximizing their recoveries must expect to be shortchanged.
`
`Silver Decl. at 10-11. See also id., Ex. 1 to Silver Declaration (Resume of Professor Charles
`Silver). Despite this and despite Movants’ multiple meet and confers over the last 60 days, counsel
`who have immutable conflicts of interest are currently negotiating a global settlement with
`Defendants on behalf of both current and future claimants.
`It is undisputed that the only plaintiff who was first to pursue, and has exclusively pursued,
`medical monitoring for a class of persons who have been exposed to Roundup but who have not
`yet manifested disease is Aaron Sheller and his counsel at Fegan Scott LLC, who filed their
`original medical monitoring class action complaint in September 2019. Sheller has twice moved
`to appoint Fegan Scott LLC as interim lead counsel for a subclass of Roundup users who seek
`medical monitoring for the increased risk they face of developing non-Hodgkin’s lymphoma
`(“NHL”) as result of Roundup exposure (the “Medical Monitoring Class”).1 See ECF No. 9771.
`See also Sheller v. Bayer AG et al., No. 1:19-cv-4063 (S.D. Ind.) (ECF No. 19) (motion was
`
`1 Joining Mr. Sheller in this renewed motion is putative class member Kabe Cain (collectively,
`“Movants”), who was a member of the Settlement Class in the Motion for Preliminary Approval
`of Class Settlement, ECF No. 11042 (“Preliminary Approval Motion”).
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`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 6 of 21
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`pending when transferred to this MDL). Fegan Scott LLC has never represented any persons who
`have been diagnosed with NHL and thus the firm’s interests run exclusively to the Medical
`Monitoring Class. Nonetheless, Defendants continue to negotiate to settle the interests of the
`Medical Monitoring Class with attorneys who purport to simultaneously represent both current
`and future claimants, rendering any negotiated settlement doomed – regardless of the amount or
`structure – because of the inherent conflicts of interest. See generally Silver Decl.; see also
`generally Declaration of Mary Robinson, Esq. (legal expert in ethics and professional
`responsibility) (“Robinson Decl.”), attached as Ex. B.
`At the time this Court decided Sheller’s first renewed motion, the Court recognized that
`the interests of the Medical Monitoring Class may diverge from those who have already been
`diagnosed with cancer (the “Personal Injury Plaintiffs”). ECF No. 10587 (Apr. 27, 2020 Pretrial
`Order No. 211). The Court nevertheless denied Mr. Sheller’s motion without prejudice, finding
`that a conflict was not yet apparent. Id. At the time, the Court noted, “the motion present[ed] no
`reason to believe that negotiations between Monsanto and the currently sick will impact any future
`negotiations between Monsanto and the exposure-only medical-monitoring class.” Id. at 2.
`That statement is no longer true. Since the Court’s decision, certain plaintiffs’ counsel
`(“Settling Counsel”)2 filed a motion to settle the claims of both the exposure-only Medical
`Monitoring Class and a class of Personal Injury Plaintiffs (the “Personal Injury Class”). See
`generally Preliminary Approval Motion (ECF No. 11042). That now-withdrawn motion and
`proposed settlement raised “concerns” that made the Court “skeptical of the propriety and fairness
`of the proposed settlement.” ECF No. 11182 (July 6, 2020 Pretrial Order No. 214). Indeed, many
`of those problems disproportionately impacted the Medical Monitoring Class because of the
`
`
`2 See Settlement Agreement, Art. II, §2.1(q) (identifying proposed Class Counsel as Elizabeth J.
`Cabraser, Robert L. Lieff, and Steven E. Fineman of Lieff Cabraser Heimann & Bernstein;
`Samuel Issacharoff; James R. Dugan, II and TerriAnne Benedetto of the Dugan Law Firm,
`APLC, and William M. Audet of Audet & Partners, LLP); Art. II, §2.1(uuuuu) (identifying Mr.
`Audet as Subclass Counsel for the Personal Injury Class a/k/a “Subclass 1” and Ms. Benedetto as
`Subclass Counsel for the Medical Monitoring Class a/k/a “Subclass 2”).
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 7 of 21
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`inherent conflicts of interest of Settlement Counsel. As just one example, the proposed settlement
`allowed for the settlement administrator to take funds from the relief provided to the Medical
`Monitoring Class to pay claims to the Personal Injury Class. Silver Decl., §(V)(C) (citing ECF No.
`11042-2, Ex. A to Cabraser Decl. (“Settlement Agreement”), §§ 7.4(b), 7.4(b)(i), 7.5)).
`The interests of the Medical Monitoring Class were never adequately protected by subclass
`counsel during the negotiation or settlement process. Infra, §§ II.C, IV.B.; See generally Silver
`Decl. For example, no one—other than Fegan Scott LLC—had filed a complaint seeking to create
`a separate class for future claimants until the settlement was proposed. Silver Decl., §5(A). That
`was more than three-and-a-half years after the MDL leadership structure had been in place, and
`more than a year after one of Settling Counsel filed a class action complaint on behalf of the
`Personal Injury Class. Id.; Ramirez v. Monsanto Company, 3:19-cv-02224 (N.D. Cal.) (“Ramirez”)
`(filed Apr. 24, 2019).3
`Furthermore, Settling Counsel’s informal, private designation of provisional subclass
`counsel failed to serve as an adequate substitute for truly independent representation. Infra, § IV.B;
`See generally Silver Decl. First, Settling Counsel purported to negotiate on behalf of current and
`future claimants. See Silver Decl., §V(C); supra, n. 2 (the Settlement Agreement sought to appoint
`the same two proposed Subclass Counsel attorneys as Settlement Class Counsel). The lawyer that
`Settling Counsel assigned to represent the Medical Monitoring Class is an attorney at the Dugan
`Law Firm, which filed at least one individual case on behalf of a Personal Injury Plaintiff who was
`already diagnosed with NHL, Silver Decl., § V(B)(2), and has allegedly entered into one or more
`inventory settlements with Defendants on behalf of numerous personal injury claimants,
`Declaration of Elizabeth A. Fegan (“Fegan Decl.”), ¶11, attached as Ex. C. The Settlement also
`purported to pay Subclass Counsel out of the entire class’s recovery, thus removing any incentive
`Subclass Counsel could have to maximize the recovery of the Medical Monitoring Class over those
`
`
`3 The Ramirez complaint made no request for a medical monitoring subclass nor did it seek medical
`monitoring relief until it was amended the same day that the proposed settlement was submitted
`for Court approval. See id.; ECF No. 10039 (“Ramirez Amended Complaint”).
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 8 of 21
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`of the Personal Injury Plaintiffs. Silver Decl., §V(C).The actions of Settling Counsel and Settling
`Subclass Counsel reflect a divided loyalty that cannot be fixed; no amount of “assurance” can fix
`the very real concern about preferential treatment for current claimants or plaintiffs in inventory
`settlements over the interests of the proposed class. Silver Decl., § V(B)(2).
`Since the withdrawal of the Preliminary Approval Motion, negotiations have continued
`between Monsanto and the very same counsel who have immutable conflicts of interest and cannot
`adequately represent the Medical Monitoring Class. Fegan Decl., ¶ 9; See Silver Decl., § V(B)(2).
`Movant’s counsel has conferred with Settling Counsel on multiple occasions but, to date, the only
`counsel at the negotiating table for the Medical Monitoring Class are the very same ones with the
`conflicts reflected in Professor Silver’s report. Fegan Decl., ¶¶ 4-11.
`Without the formal appointment of independent counsel to represent the Medical
`Monitoring Class, the class cannot, by definition, be ethically or adequately represented at the
`negotiating table to ensure “an ample, inflation-protected fund for the future.” Amchem Prods. v.
`Windsor, 521 U.S. 591, 626 (1997). The formal appointment of such counsel is required to provide
`“structural assurance of fair and adequate representation for the diverse groups and individuals
`affected.” Id. at 627. Accordingly, pursuant to the Supreme Court’s direction in Amchem and Ortiz
`v. Fibreboard Corp., 527 U.S. 815 (1999), and in light of the apparent conflict of interest revealed
`by the Preliminary Approval Motion and terms of the settlement it sought to approve, Movants
`respectfully request the Court grant this renewed motion for the appointment of Fegan Scott as
`Interim Class Counsel for the Medical Monitoring Class.4
`As reflected below, Fegan Scott exceeds the appointment criteria set forth in Fed. R. Civ.
`P. 23(g). Together with their co-counsel, Fegan Scott has diligently investigated and pursued this
`action, is committed to advancing the interests of the class, is comprised of highly experienced and
`dedicated class action and complex litigation practitioners with an expertise in medical monitoring
`
`
`4 Hereinafter, Plaintiff’s counsel—Fegan Scott, RWP, Shindler, Anderson, Goplerud, & Weese,
`P.C., and Cate, Terry & Gookins LLC—shall collectively be referred to as “Medical Monitoring
`Counsel.”
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 9 of 21
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`actions, and has devoted the resources necessary to fully prosecute this action. To ensure that
`counsel can effectively negotiate, collaborate, and safeguard the Medical Monitoring Class’s
`interests, this Court should appoint Fegan Scott as Interim Class Counsel for the Medical
`Monitoring Class.
`RELEVANT FACTUAL AND PROCEDURAL HISTORY
`II.
`A. Summary of Factual Allegations against Defendants
`Since at least the 1970s, Defendants have manufactured and sold Roundup, an herbicide
`that contains the chemical glyphosate. American farmers have traditionally used Roundup to treat
`the vast majority of corn, soybean, and cotton acres planted in the United States. Commercial
`landscapers also widely employ Roundup when maintaining nurseries, parks, fields, and lawns.
`Scientific evidence has established a clear association between glyphosate and genotoxicity,
`inflammation, and an increased risk of many cancers, including NHL. Despite knowledge,
`Defendants did not disclose those facts to consumers who purchased and have been exposed to the
`chemical, including farmers, farmworkers, and landscapers that regularly used substantial amounts
`of the product. Instead, Defendants actively concealed these truths from consumers.
`B. The Litigations
`The Medical Monitoring Class Action. Mr. Sheller brought his suit on behalf of himself
`and the Medical Monitoring Class: individuals who have been exposed to Roundup (and
`glyphosate) through their commercial and agricultural endeavors but have not yet developed
`cancer.5 Mr. Sheller is a farmer in Indiana who for years has routinely used Roundup on thousands
`of acres of his farmland. As a result of Defendants’ conduct, Mr. Sheller and the Medical
`Monitoring Class members are subject to an increased risk of cancer, including lymphoma. His
`suit seeks to establish a medical monitoring program that monitors class members’ health and
`ensures early diagnosis of Roundup-related cancers.
`
`
`5 The Medical Monitoring Class was named “Subclass 2” in the Preliminary Approval Motion;
`the Personal Injury Class—comprising those exposed to Roundup and already diagnosed with
`NHL—was referred to as “Subclass 1.” Settlement Agreement, Art. I, §1.1; §1.2(a), (b).
`
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 10 of 21
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`Following significant pre-trial investigation and analysis, Mr. Sheller and his counsel filed
`his suit on September 30, 2019 in the Southern District of Indiana. On November 12, 2019,
`Plaintiff filed a Motion to Appoint Fegan Scott, LLC as Interim Class Counsel for the Medical
`Monitoring Class and Riley Williams & Piatt as Interim Liaison Counsel. No. 1:19-cv-004063
`(S.D. Ind.) (ECF No. 19) (“Motion to Appoint”). The Motion to Appoint was never ruled upon.
`On November 18, 2019, Monsanto filed a Notice of Potential Tag-Along Action (MDL No. 2741,
`ECF No. 1425), and the case was transferred to this MDL on December 4, 2019. (ECF No. 8137).
`Plaintiff also filed a March 10, 2020 motion to appoint Fegan Scott LLC as interim lead
`counsel for the Medical Monitoring Class in the MDL. ECF No. 9771. In that motion, Mr. Sheller
`noted that settlement discussions between Defendants and counsel in the Personal Injury Cases
`had been active and ongoing since at least spring 2019. However, pursuant to the Supreme Court’s
`decision in Amchem and California Rule of Professional Conduct 1.7, separate counsel should have
`been appointed for the two discrete groups present: i.e., the “currently injured” on the one hand
`(here, the Personal Injury Cases), and the “exposure-only plaintiffs” on the other hand (here, the
`Medical Monitoring Class). Id. at 626. The Supreme Court explained:
`In significant respects, the interests of those within the single class
`are not aligned. Most saliently, for the currently injured, the critical
`goal is generous immediate payments. That goal tugs against the
`interest of exposure-only plaintiffs in ensuring an ample, inflation-
`protected fund for the future.
`
`Id. See also Robinson Decl. and Silver Decl. Mr. Sheller’s motion was unopposed. See ECF No.
`10289 (Apr. 7, 2020 Notice of Non-Opposition). In its April 27, 2020, order on that motion, the
`Court recognized:
`As Fegan Scott points out, the interests of people with exposure-
`only claims may diverge from those who have been diagnosed with
`cancer, because “for the current injured, the critical goal is generous
`immediate payments,” which can conflict with “the interest of
`exposure-only plaintiffs in ensuring an ample, inflation-protected
`fund for the future.”
`
`ECF No. 10587, p. 2 (quoting Amchem Prods., 521 U.S. at 595). The Court nevertheless denied
`Plaintiff’s motion without prejudice, stating that, at the time:
`
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 11 of 21
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`[T]he motion presents no reason to believe that negotiations
`between Monsanto and the currently sick will impact any future
`negotiations between Monsanto and the exposure-only medical-
`monitoring class. For example, the motion provided no evidence
`that these plaintiffs are competing over diminishing assets
`insufficient to discharge the potential liability. Nor does the motion
`advance any other interest that justifies departure from the standard
`order of operations for class actions.
`
`Id. at 2. Unfortunately, however, these concerns have now become a reality.
`The Personal Injury Cases. More than 18,000 individuals who contracted cancer because
`of Roundup have brought suit against Defendants in this MDL and in state court. In December
`2016, this Court appointed a plaintiffs’ counsel leadership structure for the Personal Injury Cases.
`(ECF No. 62). Since that time, general causation discovery has occurred, Daubert decisions have
`been rendered, and three Roundup personal injury cases have been tried, resulting in large verdicts.
`In April 2019, lead counsel for the Personal Injury Plaintiffs and Defendants were ordered to a
`confidential mediation. (ECF Nos. 3325, 4441). The Preliminary Approval Motion claims the
`“settlement discussions began in earnest” “in late July 2019.” Cabraser Decl., ¶ 3. Those
`discussions are continuing now. Fegan Decl., ¶ 9.
`C. The Withdrawn Settlement and Continuing Settlement
`Negotiations
`1. The proposed settlement terms disproportionately prejudiced the
`Medical Monitoring Class.
`On June 24, 2020, Settling Counsel filed a Motion for Preliminary Approval seeking to
`resolve the claims of both the Medical Monitoring Class and the Personal Injury Class and appoint
`themselves class and subclass counsel. But the settlement was plagued with problems, many of
`which were uniquely prejudicial to the Medical Monitoring Class. See Silver Decl. For example,
`the proposed settlement:
`
`• delegated causation to a science panel, Settlement Agreement, §6.3;
`• bound Medical Monitoring Class members to the determination of the science panel made
`during a four-year period, without the benefit of the scientific developments and data that
`may arise between the panel’s determination and the member developing NHL (aside from
`an onerous, untenable procedure for re-opening the panel’s process), Id.;
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 12 of 21
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`• defined subclasses but did not segregate the benefits between the subclasses (e.g., it
`allowed funds to be taken from the Medical Monitoring Class to make payments to
`members of the Personal Injury Class), e.g., id. at §7.4(b)(i);
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`• precluded Medical Monitoring Class members who are diagnosed after 2025 from applying
`for the Interim Assistance Grant program (which comprised the bulk of the settlement
`fund), e.g., id. at §10.1(a)(i);
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`•
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`included provisions allowing the settlement allocation to change after the science panel
`reached its determination, without providing any safeguard to ensure the Medical
`Monitoring Class would still be entitled to settlement funds or that the medical monitoring
`program would continue, e.g., id. §§7.4(b), 7.5; 30.1(c); and
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`• did not tie counsels’ attorneys’ fees to the subclasses they purported to represent, id.,
`Article XXIV; Preliminary Approval Motion at 15, 31.
`See also Silver Decl., § VI(C).
`2. The terms of the Settlement reflected immutable conflicts of interest
`which are important to understand the backdrop against which
`settlement negotiations continue.
`Settling Counsel failed to propose subclasses with separate representation until the
`settlement was proposed to the Court in June 2020. Silver Decl., §V(A). By that point, the
`leadership structure for the MDL had been in place for about three-and-a-half-years and Settling
`Counsel had been pursuing personal injury claims for over a year. Id., §V(A). The Court had no
`opportunity to consider or address the adequacy of the proposed class, subclass representatives, or
`subclass counsel. Id., §V(B). And the material shortcomings with Settling Counsel’s belated
`proposals led to insurmountable flaws with both the settlement and the proposed leadership
`structure. Supra, § II.C.1., Infra, § IV.B.
`For example, the very counsel charged with representing the Medical Monitoring Class has
`a conflict with that class. See Silver Decl., §V(B)(2). In the Preliminary Approval Motion, James
`R. Dugan and TeriAnne Benedetto of the Dugan Law Firm were named among Class Counsel. In
`addition to Ms. Benedetto’s role representing the Settlement Class as a whole (including Personal
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 13 of 21
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`Injury Class members), she was to represent the conflicting interests of Subclass 2. Of further
`concern, the Dugan Firm filed a personal injury case for a plaintiff already diagnosed with NHL.
`Ian M. Bodin v. Monsanto Company, No: 2:19-cv-11362 (E.D.L.A. June 25, 2019), ECF No. 1, ¶
`99. Moreover, the Dugan Firm has allegedly entered inventory settlements on behalf of numerous
`other personal injury cases. Fegan Decl., ¶ 11.
`The proposed settlement structure also failed to align the interests of subclass counsel and
`subclass members by linking attorneys’ fees to claimants’ recoveries. Silver Decl., § IV(D). And
`the settlement defined the class in such a way that excluded the proposed class representatives. Id.,
`§ V(B)(1). In other words, Settling Counsel reached and sought approval of a settlement on behalf
`of people they did not represent. Id., §V(B)(1).
`Several interested parties filed motions to extend the deadline to respond that motion,
`flagging some of the many problems with the proposed settlement. On July 6, 2020, the Court
`entered an order in which it recognized several of these concerns. ECF No. 11182. Settling Counsel
`subsequently withdrew their motion. ECF No. 11193.
`D. Meet and Confers
`On Friday, February 14, 2020, Mr. Sheller’s counsel, Elizabeth Fegan and Jessica Meeder,
`conferred with Lead Counsel Aimee Wagstaff, Robin Greenwald, and Michael Miller, and Liaison
`Counsel Lori Andrus and Mark Burton via telephone regarding the basis for the renewed motion.
`Lead Counsel advised that they opposed Mr. Sheller’s March 2020 motion. Since the Motion for
`Preliminary Approval was filed, Mr. Sheller’s counsel, Elizabeth Fegan, conferred with Settling
`Counsel on multiple occasions between June 26 and August 19, 2020 via telephone. They oppose
`this motion. Fegan Decl., ¶¶ 4-11.
`III. LEGAL STANDARD
`Pursuant to Fed. R. Civ. P. 23(g)(3), this Court may “designate interim counsel to act on
`behalf of a putative class before determining whether to certify the action as a class action.” Interim
`class counsel is responsible for all pre-certification activities including, inter alia, “making and
`responding to motions, conducting… necessary discovery, moving for class certification, and
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`Plaintiff Aaron Sheller’s Corrected Second Renewed Motion to Appoint Fegan Scott LLC As
`Interim Class Counsel for The Medical Monitoring Class, Case No. 3:19-cv-07972
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`Case 3:16-md-02741-VC Document 11611 Filed 08/24/20 Page 14 of 21
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`negotiating settlement.”6 A court should designate interim class counsel when it is “necessary to
`protect the interests of the putative class.”7
`In making its appointment, the Court must ensure that counsel will “fairly and adequately
`represent the interests of the class”8 and must consider: (i) the work counsel has done in identifying
`or investigating potential claims in the action; (ii) counsel’s experience in handling class actions,
`other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge
`of the applicable law; and (iv) the resources that counsel will commit to representing the class. 9
`The Court also “may consider any other matter pertinent to counsel’s ability to fairly and
`adequately represent the interests of the class.”10 Counsel is not “adequate”