[00:00:46] Speaker 04:
court.

[00:00:47] Speaker 04:
Besides class certification, Monsanto never even moved to dismiss their claims.

[00:00:52] Speaker 04:
By contrast, Gilmore's litigation strategy was a failure.

[00:00:56] Speaker 04:
None of their cases made it past the motion to dismiss stage, and because Gilmore lacks standing itself, he faces certain to be granted motion to dismiss.

[00:01:06] Speaker 04:
This nationwide settlement resolves

[00:01:22] Speaker 04:
almost a billion dollars of liability for a penny out of its pocket.

[00:01:27] Speaker 03:
How is that different than the Missouri action?

[00:01:30] Speaker 03:
Because I presume that that's what you're indicating should have been, should have been resolved there.

[00:01:37] Speaker 04:
So in the Missouri case, they are certified.

[00:01:41] Speaker 04:
Thus, they can pursue class-wide relief and have a common benefit.

[00:01:46] Speaker 04:
So as I understand, it's only a class of Missouri people.

[00:01:51] Speaker 04:
That's correct.

[00:02:07] Speaker 04:
case but the class was certified.

[00:02:43] Speaker 04:
he was really focused on.

[00:02:48] Speaker 04:
Correct?

[00:02:48] Speaker 04:
Yes, Your Honor.

[00:02:49] Speaker 04:
There's two things, though.

[00:02:51] Speaker 04:
The first is that under Missouri law, benefit of the bargain damages, it's easier to get full refund relief.

[00:02:57] Speaker 04:
Well, the district court suggests quite the opposite.

[00:03:02] Speaker 04:
I mean, I'm reading the district court's order, and he says, no, that isn't it at all.

[00:03:09] Speaker 04:
So tell me why he's wrong.

[00:03:51] Speaker ?:
alleges.

[00:03:53] Speaker 04:
And it doesn't seem to allege the same broad factors that would be alleged in these other cases.

[00:04:00] Speaker 04:
In the Missouri case, it was an allegation for personal family or household use.

[00:04:11] Speaker 04:
And yet, I guess,

[00:04:23] Speaker 04:
Practice Act would cover agricultural, industrial, and professional uses.

[00:04:34] Speaker 04:
Because as I understand the Misera Merchandising Practices Act, it only allows for recovery for purchases made primarily for personal, family, or household purposes.

[00:04:47] Speaker 04:
Yes, Your Honor, there's two things.

[00:05:35] Speaker 04:
I understand it in the case brought against Monsanto by Gilmore and all.

[00:05:42] Speaker 04:
There have been experts, but you don't have an expert yet.

[00:06:26] Speaker 04:
go to the extra added work to move for the class was it just so you'd have a better argument here I mean I didn't understand why when you're representing people and taking their money and you know there's been a settlement you know you're gonna fight about that you'd go after it afterwards your honor we didn't know about the settlement they did not announce

[00:06:59] Speaker 04:
And in fact, I'll talk to him about that because I got the idea that's not what happened.

[00:07:05] Speaker 04:
And your honor, in fact, Monsanto hid the settlement from the state courts.

[00:07:12] Speaker 04:
Never told them despite it is a big word.

[00:07:17] Speaker 04:
I'm not sure.

[00:07:18] Speaker 04:
I mean,

[00:07:50] Speaker 03:
selected, is that correct?

[00:07:51] Speaker 03:
And you were aware of that?

[00:07:52] Speaker 03:
We were not aware of it.

[00:08:52] Speaker 04:
was none, Your Honor.

[00:08:53] Speaker 04:
Basically, on Escura, they placed notice that they were mediating with Judge Wilch.

[00:08:59] Speaker 04:
That case was subsequently dismissed, and they never re-noticed that they were having mediation.

[00:09:04] Speaker 03:
Absolutely.

[00:09:06] Speaker 03:
Even when they selected the mediator, they never, they weren't, the case, how can they, I guess, procedurally,

[00:09:30] Speaker 03:
went out, you were aware of that?

[00:09:32] Speaker 03:
We were not aware of that, Your Honor.

[00:09:34] Speaker 04:
But even subsequently, when they filed Gilmore, they never re-noticed that they were mediating with Judge Welsh.

[00:09:44] Speaker 04:
Oh.

[00:09:44] Speaker 04:
Okay.

[00:09:44] Speaker 04:
And there was a separate plaintiff as well.

[00:09:45] Speaker 04:
I want to talk about then what the district court ordered.

[00:09:49] Speaker 04:
You got ten minutes left.

[00:09:54] Speaker 04:
I'm a standard or review man.

[00:10:02] Speaker 04:
you a little background.

[00:10:03] Speaker 04:
I was a DJ and I frankly didn't like this Ninth Circuit telling me what to do when they didn't know what was going on in the courtroom.

[00:10:12] Speaker 04:
So I'm a big standard review guy and it seems to me that

[00:10:58] Speaker ?:
it up and nobody like these good colleagues I have could undo me.

[00:11:03] Speaker 04:
Well, so then I look at what we're going to look at.

[00:11:08] Speaker 04:
You have many times alleged the same kind of arguments about this

[00:11:45] Speaker 04:
Court put together.

[00:11:48] Speaker 04:
He applied the Bluetooth standard.

[00:11:51] Speaker 04:
He said it didn't work.

[00:11:53] Speaker 04:
It isn't like he didn't say there isn't a Bluetooth standard.

[00:11:57] Speaker 04:
He said, I know of it.

[00:11:58] Speaker 04:
Now I know of it.

[00:11:59] Speaker 04:
And frankly, I looked at everything he looked at.

[00:12:02] Speaker ?:
And your argument seems to be he should have said more.

[00:12:08] Speaker 04:
I mean, that seems to be your argument.

[00:12:09] Speaker 04:
We'd like to have him talk more.

[00:12:17] Speaker 04:
to figure out if he applied the correct legal standard.

[00:12:51] Speaker 04:
Sorry.

[00:12:52] Speaker 04:
Um, in Allen Bidola v. Bidola, for example, the court said, I've looked at these and I find that there is no collusion, which is exactly what the court did here.

[00:13:03] Speaker 04:
In McKinney-Drobeness, the court did the same thing.

[00:13:05] Speaker 04:
In fact, it went beyond this court and said, I do see there's a clear ceiling, uh, arrangement and I also see the fact that- Where's the evidence of collusion?

[00:13:14] Speaker 04:
So the Bluetooth factors are on their face, evidence of collusion.

[00:13:35] Speaker 03:
Yes, I think it's before certification.

[00:14:14] Speaker 03:
I don't believe he ever addressed them specifically.

[00:14:43] Speaker 04:
That whole effort was rigorously debated at the beginning of the attempt to intervene.

[00:14:51] Speaker ?:
It was rigorously debated when they sought discovery.

[00:14:55] Speaker ?:
It was rigorously debated ending with the objections

[00:15:14] Speaker ?:
and they did four different times the same things.

[00:15:19] Speaker 04:
Your Honor, nobody is debating that the parties vigorously disputed the presence of the Bluetooth factors.

[00:15:25] Speaker 04:
The problem is that the district court did not investigate those factors and subsequently addressed.

[00:15:31] Speaker 04:
What does that mean?

[00:15:32] Speaker 04:
Four times he heard them.

[00:15:34] Speaker 04:
Four times he asked questions about them.

[00:15:37] Speaker 04:
Four times he had you think about him.

[00:15:40] Speaker ?:
Four times he gave you the privilege

[00:16:23] Speaker 03:
just trying to understand what would what would an investigation under your

[00:17:05] Speaker 04:
has demanded that the district court explain why those factors are to the benefit of the class.

[00:17:11] Speaker 03:
You're beyond your time, but I'm going to ask Judge Gould if she has any questions at this time.

[00:17:55] Speaker 01:
Scott Delmore, James Weeks, Paul Taylor, Sheri Hannah, Amanda Boyette, Julio Escura, Anthony Jewell, and Kristi Williams.

[00:18:06] Speaker 01:
And I just want to start this by saying the issue that is raised on appeal here is whether the district court abuses discretion in finally approving the settlement.

[00:18:18] Speaker 01:
And the district court, in doing so,

[00:18:22] Speaker 01:
Reviewed all of the Bluetooth actors one of their arguments I guess

[00:19:00] Speaker 01:
I agree with you on that and the first I just want to clarify what what actually occurred a recurring theme with this appeal is ignoring the record and it is occurred over and over again there is no dispute that the record says what it

[00:19:26] Speaker 01:
Julio Escura, who is a plaintiff now in this settlement, in this case, as part of this case, had his own case against Monsanto.

[00:19:37] Speaker 01:
And that case was on a so-called rocket docket.

[00:19:41] Speaker 01:
A lot of litigation occurred in a relatively short amount of time.

[00:19:44] Speaker 01:
It was set for trial.

[00:19:46] Speaker 01:
Classification motion was due.

[00:19:49] Speaker 01:
It was fully prepared and was done.

[00:19:52] Speaker 01:
But the case ended up getting dismissed on

[00:19:56] Speaker 01:
the day before the business, it was on a Friday before the plaintiff's deposition was supposed to occur.

[00:20:01] Speaker 01:
And leading up to all of those factors, one of the things that the district court ordered us to do was to appoint a mediator and file that with the court.

[00:20:08] Speaker 01:
So during the course of these court litigation that occurred and Judge Welsh was selected as a mediator.

[00:20:14] Speaker 01:
That case was dismissed.

[00:20:17] Speaker 01:
at the 11th Circuit, awaiting a hearing date pending the outcome of whether this case gets finally approved.

[00:20:25] Speaker 01:
And after Escura was dismissed, Scott Gilmore filed a case in Delaware.

[00:20:32] Speaker 01:
And then it was that case that ultimately settled after a couple rounds of pleadings challenges that were not ever decided.

[00:20:37] Speaker 01:
They would have had notice of?

[00:20:40] Speaker 01:
Certainly of what happened in Escura.

[00:20:42] Speaker 01:
That was public record.

[00:20:43] Speaker 01:
It was on PACER.

[00:20:45] Speaker 01:
Going back to your question about, I suppose, the process or the throwness of the court's investigation or order, of course, the court went through all the Bluetooth factors exhaustively.

[00:20:58] Speaker 01:
It's not disputed that this was briefed 12 times.

[00:21:01] Speaker 01:
It is not disputed that the court went through the Bluetooth factors at

[00:21:05] Speaker 01:
preliminary approval hearing those factors are addressed in the preliminary approval order they are addressed in the final approval order they were addressed at the final approval hearing and the court there's no ninth circuit precedent does not mandate as this court knows a rigid formula

[00:21:22] Speaker 01:
of specific wording and analytical steps for district court's written Bluetooth inquiry.

[00:21:28] Speaker 01:
The court doesn't have to go through and say, I'm looking at this factor, and this is this Bluetooth factor, and I'm rejecting it because, or I'm not rejecting it.

[00:21:38] Speaker 01:
Even when the Bluetooth factors exist, the case law doesn't say, that means the settlement's thrown out.

[00:21:43] Speaker 01:
That means the court has to apply heightened scrutiny as to those factors.

[00:21:48] Speaker 01:
And that is exactly what the court did.

[00:21:50] Speaker 01:
And in fact, it's not true that the court didn't consider the timing of the settlement negotiations.

[00:21:57] Speaker 01:
In fact, these are, in addition to analyzing the Bluetooth factors,

[00:22:04] Speaker 01:
The court also conducted a more searching inquiry on every issue that objectors claimed was probative of collusion.

[00:22:12] Speaker 01:
That includes the respective bargaining positions and the strength of the Missouri case.

[00:22:17] Speaker 01:
That was addressed at the preliminary approval hearing in the preliminary approval order, the final approval hearing, and the final approval order.

[00:22:25] Speaker 01:
The court considered the settlement timeline as implicating a reverse auction, which is essentially what they're suggesting.

[00:22:31] Speaker 01:
That was addressed

[00:22:33] Speaker 01:
have in the preliminary approval order, the final approval hearing, and the final approval order.

[00:22:39] Speaker 01:
The extent of discovery was also considered during the final approval hearing and in the final approval order.

[00:22:45] Speaker 01:
And all these citations, by the way, are in our brief.

[00:22:48] Speaker 01:
Punitive damages were considered.

[00:22:50] Speaker 01:
Yes?

[00:22:52] Speaker 01:
I have a question for you, if I may.

[00:22:54] Speaker 02:
Of course.

[00:22:54] Speaker 02:
In this context, where glass settlement was approved, we review that for abuse of discretion.

[00:23:06] Speaker 02:
And what's the rule of the clear error standards?

[00:23:11] Speaker 02:
Does there have to be a clear error?

[00:23:13] Speaker 01:
Yes.

[00:23:15] Speaker 01:
Exactly, Your Honor.

[00:23:16] Speaker 01:
A district court abuses its discretion if it doesn't consider the facts of the case or commits a clear error in applying the law to the facts.

[00:23:31] Speaker 01:
no evidence that that occurred here.

[00:23:33] Speaker 01:
The court exhaustively considered every single issue the objectors asked the court to consider and applied it to the law.

[00:23:41] Speaker 01:
And it made a reasoned decision based on his experience in this case and overseeing the sprawling MDL personal injury cases at the same time.

[00:23:51] Speaker 01:
So the court is more than informed as to the issues in this case, the strengths and weaknesses of this

[00:23:57] Speaker 01:
case and what would be an appropriate settlement under these circumstances.

[00:24:01] Speaker 01:
And there's certainly zero evidence of collision.

[00:24:07] Speaker 04:
Thank you.

[00:24:09] Speaker 04:
It's also my understanding that the district court in trying to make these determinations diminish the plaintiffs or diminish the funds for the plaintiff's lawyers by almost half.

[00:24:27] Speaker ?:
That's correct, Your Honor.

[00:24:29] Speaker ?:
And the costs, they were also diminished.

[00:24:32] Speaker ?:
That's correct.

[00:24:35] Speaker 04:
They also said that any funds not used would not be returned to Monsanto, but would go to the claimants, correct?

[00:24:44] Speaker 04:
That's correct.

[00:24:45] Speaker 04:
Doesn't that take away relief from the third factor that is

[00:24:59] Speaker 01:
take away from it in what respect?

[00:25:01] Speaker 04:
In other words, doesn't that say that that did not happen?

[00:25:05] Speaker 01:
That's correct.

[00:25:06] Speaker 01:
And the time of evaluating the Bluetooth red flags, the court has to look at that at the time that the settlement negotiations take place and at preliminary approval.

[00:25:18] Speaker 01:
And that's exactly what the court did in assessing those factors.

[00:25:21] Speaker 01:
The court looked at the structure of the settlement, made it agreed with counsel that

[00:25:32] Speaker 01:
reasonable under the circumstances and because of that felt that the fund was adequately was sufficient between

[00:25:43] Speaker 01:
in that sense.

[00:25:44] Speaker 01:
And of course, and is exactly what happened here in considering the concept of a revertor, this was not, as Council incorrectly stated earlier, this was not a pure claims-made settlement by any means because of the $23 million floor.

[00:25:58] Speaker 01:
It was a range with a cap, so arguably between 23 and 45, that's a claims-made scenario, but the $23 million was always going to be paid no matter what, and exactly what

[00:26:10] Speaker 01:
was possible here is what happened which was when the attorney fees were cut the majority of that money it's almost four million dollars is going back to the class and the class recovery is pro rata you know will be applied pro rata and will increase i think it's almost 17 dollars on average per person

[00:26:41] Speaker 03:
I actually didn't want to reserve time.

[00:26:45] Speaker 04:
I just wanted to be notified so I don't go over.

[00:27:13] Speaker 04:
what it does it gives them which I understand 20% of their average retail price which based on what the experts said is about two-thirds

[00:27:46] Speaker 01:
That's exactly correct, everything you just said.

[00:27:50] Speaker 04:
And they can recover payments for products, notice costs, claims, administration expenses, incentive awards, all of that?

[00:28:00] Speaker 04:
That's correct.

[00:28:02] Speaker 04:
And they cut back the attorney's fees, as I've suggested?

[00:28:05] Speaker 01:
Yes, the attorney's fees, the costs, and the incentive awards were all reduced.

[00:28:22] Speaker 03:
Any questions at this time?

[00:28:25] Speaker 03:
All right.

[00:28:26] Speaker 03:
Any additional questions?

[00:28:28] Speaker 03:
All right.

[00:28:28] Speaker 03:
Thank you, Council.

[00:28:28] Speaker 03:
Thank you very much.

[00:29:06] Speaker 04:
fair and reasonableness of the settlement on the standard review.

[00:29:37] Speaker 04:
investigation of some sort?

[00:29:38] Speaker 04:
Yeah, I believe there was an investigation if you look at the record.

[00:29:42] Speaker 04:
But what they're really saying is that he can't just hear the hearing.

[00:29:47] Speaker 04:
You can't just ask him questions.

[00:29:50] Speaker 04:
He can't do that two or three times.

[00:29:52] Speaker 04:
What he's got to do is put it down on paper why this is this and this is that rather than just say the factors have been met.

[00:30:02] Speaker 04:
How do you respond?

[00:30:08] Speaker 04:
Ashbrook vs. Puebel.

[00:30:52] Speaker 04:
And I'm having a tough time saying why I have to write out all this stuff just because I'm a DJ in order to have investigated.

[00:31:01] Speaker 04:
If I've had a hearing and I've asked all these questions and I've said, come on, give me some answers, and they don't give me the answers I want, and it's obvious to me, why can't I just make my findings?

[00:31:13] Speaker 04:
Is there a case that says I can't?

[00:31:16] Speaker 04:
Even one of Judge Gould's cases.

[00:31:24] Speaker 04:
I'm a DJ.

[00:31:27] Speaker 04:
I'm trying to put these findings together.

[00:31:29] Speaker 04:
If I have those people in front of me and I'm asking all these questions and I'm trying to get to the end result and I make them, I put them under the gun, why have I got to write down all that stuff on a

[00:31:54] Speaker 04:
Well, I wanted you to turn to what about this Monsanto-Hit settlement negotiations.

[00:32:02] Speaker ?:
That's one thing they say.

[00:32:04] Speaker ?:
Well, they'd like to say a lot of things against this record.

[00:32:06] Speaker 04:
I know, but I wanted you to respond, because frankly, what he told me, I had in mind what my record suggests

[00:32:21] Speaker 04:
happened here.

[00:32:50] Speaker 04:
and we're well aware based on my discussions with them.

[00:33:40] Speaker 04:
They brought a case in Missouri

[00:34:21] Speaker 04:
potential settlement?

[00:34:23] Speaker 04:
Yes, yes, you can, Your Honor.

[00:34:25] Speaker 04:
All that have happened, all, each court, what the situation was that you've complied with all of them?

[00:34:33] Speaker 04:
Yes, Your Honor.

[00:34:35] Speaker 04:
We, we provided... Even, even the settlement that was mediated by Judge Welsh?

[00:34:42] Speaker 04:
Uh, yes, Your Honor.

[00:34:43] Speaker 04:
So, we... What were your obligations as to that particular settlement?

[00:35:28] Speaker 02:
I have a question, if I may.

[00:35:31] Speaker 02:
Could you explain to me your position as to why the settlement here was fair, is it reasonable, and adequate?

[00:35:43] Speaker 02:
Yes, Your Honor.

[00:35:43] Speaker 04:
When you look at these kinds of cases,

[00:36:12] Speaker 04:
look at what the plaintiff's own expert it came to the conclusion

[00:36:45] Speaker ?:
looking at is what they would have paid if they'd have known about the carcinogens, right?

[00:36:53] Speaker 04:
If they'd known about how toxic your product was, what they would have paid.

[00:37:01] Speaker 04:
So we're looking at the difference between what they paid and what they would have paid and your expert said they'd have paid the same.

[00:37:08] Speaker 04:
Our expert said that there was no such

[00:37:19] Speaker 04:
So, Your Honor, I would like to address this notion that somehow the Missouri plaintiffs were disadvantaged.

[00:37:25] Speaker 04:
If you look at the opinion by the district court, the court closely examined this.

[00:37:31] Speaker 04:
An objector is simply wrong.

[00:37:51] Speaker 04:
three and in fact also

[00:38:52] Speaker 03:
for your presentation.

[00:38:53] Speaker 03:
Thank you Robert.

[00:39:26] Speaker 04:
at least it's not disproportionate.

[00:40:47] Speaker 02:
In your words, why your plants think the settlement was not fair, reasonable, and adequate.

[00:40:57] Speaker 04:
Yes, Your Honor, I'd be happy to.

[00:40:58] Speaker 04:
Under this settlement, Missouri residents get almost nothing.

[00:41:04] Speaker 04:
At best, it's a few hundred thousand dollars.

[00:41:06] Speaker ?:
Their total aggregate damages, even for just residential purchases, is probably around fifty million dollars.

[00:41:25] Speaker 04:
That's why we notified the court in June.

[00:41:28] Speaker 04:
Our class was certified well before that and would have been able to get a common benefit fund for their full damages.

[00:42:41] Speaker 01:
for this session stands in recess.