Custer v. Cerro Flow Products, Inc.

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Appellate Court Date: 2018.11.29
11:03:42 -06'00'
Custer v. Cerro Flow Products, Inc., 2018 IL App (5th) 160161
Appellate Court MARTHA CUSTER et al., Plaintiffs-Appellees, v. CERRO FLOW
Caption PRODUCTS, INC.; PHARMACIA CORPORATION, n/k/a
Pharmacia LLC; PHARMACIA & UPJOHN COMPANY LLC;
SOLUTIA, INC.; MONSANTO COMPANY; PFIZER, INC.;
MONSANTO AG PRODUCTS LLC, n/k/a Monsanto Company; and
EASTMAN CHEMICAL COMPANY, Defendants (Cerro Flow
Products, Inc., Defendant-Appellant; Pharmacia Corporation;
Pharmacia & Upjohn Company LLC; Solutia, Inc.; Monsanto
Company; Pfizer, Inc.; Monsanto Ag Products LLC; and Eastman
Chemical Company, Defendants-Appellees).
District & No. Fifth District
Docket Nos. 5-16-0156 through 5-16-0175, 5-16-0320 cons.
Filed April 18, 2018
Decision Under Appeal from the Circuit Court of St. Clair County, No. 09-L-295*; the
Review Hon. Vincent J. Lopinot and the Hon. Andrew J. Gleeson, Judges,
presiding.
Judgment Orders vacated; remanded.
Counsel on E. King Poor, Anthony P. Steinike, and Lindsey T. Millman, of
Appeal Quarles & Brady, LLP, of Chicago, Mark A. Kircher, of Quarles &
Brady, LLP, of Milwaukee, Wisconsin, and Thomas R. Ysursa, of
Becker, Hoerner, Thompson & Ysursa, P.C., of Belleville, for
appellant.
*
A full listing of trial court case numbers is set forth in the appendix.
Bruce N. Cook and Bernard J. Ysursa, of Cook, Ysursa, Bartholomew,
Brauer & Shevlin, Ltd., and Robert J. Sprague, of Sprague & Urban,
both of Belleville, Charles R. Hobbs II and Patricia L. Silva, of
Lathrop & Gage, LLP, of Clayton, Missouri, and Joseph G. Nassif, of
Nassif Law Firm, of Creve Coeur, Missouri, for appellees Eastman
Chemical Company, Monsanto AG Products LLC, Monsanto
Company, Pfizer, Inc., Pharmacia & Upjohn Company LLC,
Pharmacia Corporation, and Solutia, Inc.
Clyde L. Kuehn, of Belleville, for Martha Custer et al.
Panel JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman** and Moore concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Cerro Flow Products, Inc. (Cerro), appeals from orders of the circuit court
finding that an aggregate settlement agreement between 11,546 plaintiffs and
defendants—Pharmacia Corporation, now known as Pharmacia LLC; Pharmacia & Upjohn
Company LLC; Solutia, Inc.; Monsanto Company; Monsanto AG Products LLC, now known
as Monsanto Company; and Eastman Chemical Company (collectively referred to as
Monsanto defendants)—was made in “good faith,” within the meaning of the Joint Tortfeasor
Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2014)). For the
following reasons, we vacate the good-faith orders and remand this cause for further
proceedings consistent with this opinion.
¶2 I. BACKGROUND
¶3 This appeal concerns 131 mass tort cases, filed on behalf of 11,546 plaintiffs, who alleged
that they suffered personal injuries and property damage resulting from exposure to hazardous
substances and contaminants emitted from three “release sites” in or near the village of Sauget,
Illinois. The release sites were identified as (1) a 90-acre landfill site (Sauget landfill), (2) a
314-acre plant operated by one or more of the Monsanto defendants (Monsanto facility), and
(3) a parcel of property abutting the Monsanto facility that was owned and operated by Cerro
(Cerro facility).
**
Justice Overstreet was originally assigned to the panel but recused himself. Justice Chapman was
substituted and has read the briefs and listened to the recording of the oral argument.
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¶4 The 2009 Cases
¶5 The litigation began in June 2009, with the filing of 20 cases (collectively referred to as the
2009 cases) against the Monsanto defendants and Cerro. In most of the cases, there were
between 70 and 99 individual plaintiffs joined in a single complaint. A total of 1022
individuals were named as plaintiffs in the 2009 cases.
¶6 The plaintiffs brought personal injury and property damage claims against the Monsanto
defendants and Cerro for allegedly releasing polychlorinated biphenyls (PCBs), dioxins,
furans, and other hazardous substances into the environment. More specifically, the plaintiffs
alleged that the Monsanto defendants produced, stored, and disposed of PCBs at the Sauget
landfill and the Monsanto facility, resulting in the release of the hazardous substances into the
environment. The plaintiffs further alleged that Cerro, as part of its recycling operations,
scrapped PCB transformers and drained manufacturing waste and PCB oil into a creek, which
ran through the Cerro facility, resulting in the release of large quantities of hazardous
substances into the environment. The plaintiffs asserted that the hazardous substances were
released through emissions, spillage, incomplete incineration of PCBs, improper burning of
contaminated waste, improper discharge into surface waters and wastewater systems, and
improper disposal. They claimed that the release of these substances created health risks and
contaminated real property, including nearby streams and groundwater, within a two-mile
radius of one or more of the release sites (the affected areas). The plaintiffs claimed that
hazardous substances had been released into the affected areas for more than 70 years and that
the defendants actively concealed the health risks and property contamination caused by the
release of these substances.
¶7 The personal injury claims were based on theories of negligence, strict
liability/ultrahazardous activity, nuisance, and battery. The plaintiffs alleged they suffered one
or more of the following diseases or conditions: diabetes, hypertension, depression, sinusitis,
anemia, endometriosis, fibroid tumors, anxiety, gout, heart disorder, arthritis, hysterectomy,
diverticulitis, ovarian cysts, thyroid problems, noncancerous tumors, hypercholesterolemia,
upper respiratory infection, heart disease, urinary tract infection, asthma, leukemia, chronic
bronchitis, congestive heart failure, emphysema, osteoporosis, stomach disease/disorder,
pancytopenia, thrombocytopenia, bone diseases, leucopenia, myelodysplasia, migraines, and
various forms of cancer.
¶8 The property damage claims were based on theories of negligence, nuisance, and trespass.
The plaintiffs alleged that they suffered injury and damage in the form of “cost to remediate”
their real property and “diminution in value” of the real property.
¶9 On August 3, 2010, the parties informed the trial court that they had entered into a tolling
agreement, effective June 18, 2010, which provided for a stay of all nondiscovery issues while
they attempted to mediate the contested issues. Pursuant to that agreement, the court ordered a
stay of the proceedings. Over the next three years, the parties engaged in mediation. The
mediation between the plaintiffs and Monsanto defendants was apparently successful,
concluding in November 2014, with a tentative agreement (hereinafter the Settlement
Agreement) to settle not only the 2009 cases but also the claims of thousands of other
individuals who had not yet filed lawsuits, based upon injuries arising from the same
environmental exposure. Cerro was not a party to the proposed settlement, and its mediation
efforts with the plaintiffs ended without an agreement.
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¶ 10 The 2014 Cases
¶ 11 On or about June 3, 2014, an additional 111 cases (the 2014 cases), naming more than
10,000 new plaintiffs, were filed against Cerro. Because of the pending Settlement Agreement,
the Monsanto defendants were not sued. The allegations in the 2014 cases were similar to those
brought against Cerro in the 2009 cases. The plaintiffs alleged that Cerro released hazardous
substances into the environment at the Cerro release site and that, as a direct and proximate
result of environmental exposure to those hazardous substances, the plaintiffs suffered injuries
“in the form and manner described in Exhibit A.” Exhibit A, attached to the complaint, is a
table that contains columns with the following headings: “ID,” “Name,” “Minimum Number
of Years,” “Cancer,” and “Other Conditions.” Rows beneath each column contain a unique
identification number for each plaintiff, the plaintiff’s name, a number indicating the minimum
years of alleged exposure, and an “X” marked in the column for either “Cancer” or “Other
Conditions.”
¶ 12 On June 23, 2014, Cerro filed a motion to lift the stay order in the 2009 cases because its
mediation efforts with the plaintiffs had been unsuccessful. On July 8, 2014, the trial court
issued an initial case management order covering the 2009 cases and the 2014 cases. As part of
that order, the court lifted the stay as to the claims made against Cerro in the 2009 cases. The
court also permitted the plaintiffs and Cerro to resume discovery and trial preparations for the
2009 cases and the 2014 cases.
¶ 13 The Qualified Settlement Fund
¶ 14 On August 6, 2015, the plaintiffs in the 2009 cases filed a motion to establish a “Qualified
Settlement Fund” and to appoint Lexco Consulting LLC as the administrator of the fund. In the
motion, the plaintiffs indicated they had reached a confidential settlement with the Monsanto
defendants and thereby resolved the claims of over 11,000 individuals. They unequivocally
stated that this was not a motion for a finding of good faith or a request for an order approving
the settlement. The plaintiffs asserted that under the terms of the November 14, 2014,
Settlement Agreement, the Monsanto defendants would soon make their first settlement
payment. They noted that the exact amount of compensation that each individual would
receive had not yet been determined and the exact distribution of settlement funds for
compensation, and for subrogation or reimbursement, could not yet be finalized. The plaintiffs
asserted that no settlement proceeds would be “set apart” for a particular settling plaintiff or
claimant or “otherwise made available so that he or she may draw upon or otherwise control
said settlement proceeds,” until such time that a distribution of the settlement proceeds for each
settling plaintiff or claimant could be identified.
¶ 15 The plaintiffs represented that the Qualified Settlement Fund satisfied pertinent federal
regulations and requested a court order finding “that the account and the settlement payment
arrangements meet the criteria for a Qualified Settlement Account” under section 468B of the
Internal Revenue Code (26 U.S.C. § 468B (2012)) and the corresponding Treasury Regulation
(Treas. Reg. § 1.468B-1(c) (2012)). The plaintiffs claimed that the establishment of a
Qualified Settlement Fund was beneficial because it would “introduce a degree of breathing
space after settlement because the money temporarily parked in the Qualified Settlement Fund
is not yet ‘constructively received’ by any Settling Plaintiff or Claimant, as set forth in Treas.
Reg. §1.451-2(a) (26 C.F.R. §1.451-2(a)).” The plaintiffs acknowledged that a Qualified
Settlement Fund would allow the Monsanto defendants to take a tax deduction for qualified
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payments to the fund and that the tax benefit could occur before the payment amounts were
determined for the individual plaintiffs and claimants.
¶ 16 The plaintiffs indicated that in accordance with the provisions of the Settlement
Agreement, the Qualified Settlement Fund account would be held in a trust, governed by a trust
agreement (Trust Agreement), with plaintiffs’ counsel serving as trustees (Trustees). The
Trustees would select a fund administrator (Fund Administrator), to whom the Trustees were
“empowered to delegate certain functions required to fully comply with the Settlement
Agreement or effectuate the purposes of the Trust.” The Fund Administrator would also be
authorized to distribute all attorney fees and litigation expenses to plaintiffs’ counsel. It was
noted that plaintiffs’ counsel would not be paid a separate fee to serve as Trustees. The
plaintiffs requested that the circuit court approve Lexco Consulting LLC (Lexco), an entity
located in Birmingham, Alabama, as the Fund Administrator. The plaintiffs represented that
Lexco “submits personally to the jurisdiction of the court.” Lexco, however, did not provide an
affidavit or other document affirming that it would submit to the jurisdiction of the circuit court
of St. Clair County. The plaintiffs added, “So long as the Fund Administrator substantially and
without negligence complies with the applicable terms of the Settlement Agreement, Trust
Agreement, or instructions issued by Trustees regarding distribution and allocating the
settlement funds or any applicable Court Order, the Fund Administrator shall be indemnified
and held harmless by the Fund.” The plaintiffs vowed that after all settlement money had been
allocated, the Trustees, with the assistance of the Fund Administrator, would “jointly prepare
an accounting detailing all distributions from the Qualified Settlement Fund,” and that this
accounting would “be available to the Court upon request.” The plaintiffs asserted that if the
court entered an order establishing the Qualified Settlement Fund, the court would retain
jurisdiction over the fund.
¶ 17 On August 6, 2015, the trial court entered an order in the 2009 cases, granting the motion to
establish the Qualified Settlement Fund. This order was entered on the same day that the
motion was filed, and there is no indication that a hearing was held that day. The court
approved Lexco as the Fund Administrator “pursuant to the terms, conditions and restrictions”
set forth in the plaintiffs’ motion. The court authorized the Fund Administrator “to conduct any
and all activities assigned to it by the Trustees which are necessary to administer the Fund” as
described in the plaintiffs’ motion. The court directed that “the Trustees, with assistance of the
Fund Administrator, shall jointly prepare an accounting” detailing all distributions from the
Qualified Settlement Fund. The court stated that it “shall retain continuing jurisdiction over the
Fund pursuant to Treas. Reg. §1.468B-1(c)(1) and over the Trustees and Fund Administrator.”
¶ 18 The “Good Faith” Proceedings
¶ 19 On March 4, 2016, the plaintiffs in the 2009 cases filed motions requesting that the trial
court find that their settlement with the Monsanto defendants was made in good faith, as
defined in the Contribution Act, and order the dismissal of those claims with prejudice. In
support, the plaintiffs asserted that they “each received certain moneys, and acknowledge
receipt of said moneys, and may in the future receive additional moneys, as provided in the
settlement agreement.” The plaintiffs also asked the court to enter an order discharging any
potential liability of the settling defendants to other tortfeasors and barring any and all
contribution claims that have been asserted, or could have been asserted, by or against the
settling defendants. Finally, the plaintiffs sought an order directing that the Settlement
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Agreement and each release (hereinafter the Release) be filed under seal. The plaintiffs’
motion was set for a hearing on March 29, 2016.
¶ 20 On March 22, 2016, Cerro filed a motion to continue the good-faith hearing. Cerro argued
that on March 21, 2016, it received 1003 pages of settlement documents covering over 11,000
plaintiffs and that it needed time to prepare for a hearing involving a “complicated,”
“voluminous” settlement. The Monsanto defendants filed a response in opposition to Cerro’s
motion for a continuance, arguing that “contrary to Cerro’s implications, the ‘terms’ of the
settlement agreement could be found in 34 pages of the settlement agreement” and that Cerro
participated in mediation and was well aware of the “settlement concept.” The Monsanto
defendants further argued that the plaintiffs received “money consideration” from the settling
defendants and “therefore the agreement is presumed to be in good faith.”
¶ 21 On March 29, 2016, the parties appeared in court for the hearing on plaintiffs’ good-faith
motions and Cerro’s request for a continuance. Two circuit court judges, Judge Andrew
Gleeson and Judge Vincent Lopinot, were assigned to these cases, and they jointly presided
over the good-faith hearing.
¶ 22 During the hearing, Cerro argued for a continuance, asserting that it had not been given
adequate notice of the hearing date and that it had not had sufficient time to review the
settlement documents in order to consider its position on the motion for a finding of good faith.
Cerro noted that it did not receive the settlement documents until the afternoon of March 21,
2016, and that it was not provided with the individual copies of the Release signed by the
plaintiffs. Cerro argued that one of the issues before the court was whether the settlement was
“consistent with the purposes of the Contribution Act, which deals with equitable
apportionment.” Cerro stated that it was not prepared to address that issue without basic
information about the settlement. Cerro also argued against a finding of good faith, noting that
without the settlement information, such a finding was premature.
¶ 23 Plaintiffs’ counsel objected to the continuance, arguing, “[n]o set of facts are going to
change between now and whenever they want this heard.” Counsel also argued that good-faith
settlements are normally done “routinely.” Counsel for the Monsanto defendants also opposed
the continuance, arguing that there is a presumption that settlements are made in good faith.
Counsel noted that the Monsanto defendants had paid more than $10 million into a settlement
fund, that money had been distributed to the parties by the Fund Administrator, and that the
settling defendants have more than 10,000 copies of the Release signed by individual
plaintiffs. He indicated that the copies of the Release could be shown to the court, or to Cerro,
“should they be so inclined.” Counsel advised the court that an initial amount of money had
been distributed equally to all of the plaintiffs and that a fund would be set up “based on
testing, disease, and—closeness to the plant that will be distributed blind from Monsanto by an
administrator selected by these two mediators who have participated.” He argued that there
had been “an awful lot of work” by plaintiffs’ counsel and, “where money has changed hands,
there is a presumption that the settlement is valid.” Plaintiffs’ counsel then added, “Judge
Baricevic *** is the one who approved the payoff of roughly ten million dollars, I don’t know,
six months ago or four months or whenever it was, and there was no opposition at that time.”
¶ 24 In response, Cerro’s counsel pointed out that Judge Baricevic had entered an order
establishing a Qualified Settlement Fund. Counsel recalled that the plaintiffs, in their motion to
establish the Qualified Settlement Fund, specifically stated they were not requesting a finding
of good faith, or an order approving the settlement. Counsel argued that “to somehow
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insinuate” that the settlement has been approved is “just not accurate.” He noted that Cerro was
not presently asserting that the Settlement Agreement was a bad-faith settlement, because it
simply did not know. He stated that Cerro was “looking more at equitable apportionment”
because “we don’t even know what the individual claimants are getting right now.”
¶ 25 At this point in the proceedings, the judges conferred off the record. Judge Gleeson then
announced the ruling from the bench:
“Obviously an interesting, complex case. The Court looks at good-faith findings
and good-faith settlements and looks at those in terms of judicial economy. In this
particular case—and with that there is a presumption that settlements are in good faith.
Having been involved in this case, both Judge Lopinot and I recognize that this
settlement concept has been readily known to the parties for quite some time. Cerro has
participated in the litigation, has participated in the mediation in this particular case.
There are no allegations before This Court of any collusion or fraud.
Litigation—our whole judicial system in a sense is premised on the fact that we
want to promote settlement before the parties, settlements that, perhaps, are negotiated
at arms’ length; that each party has a give and take such that it’s a value that they can
both live with, maybe, perhaps, not the happiness [sic] about but one that’s formulated
in this particular instance between the parties and between the mediation that took
place.
There is a substantial amount of money that’s been extended in this settlement. It
seems to This Court that it’s consistent with the Contribution Act. It seems that it
enforces the concept that we want to promote settlement, particularly in complex,
extensive, sensitive litigation such as this.
Both Judge Lopinot and I believe that this settlement is in good faith; that the
parties have had a reasonable time to contemplate what the settlement meant to each
side. As such, we’re denying the motion for continuance with respect to this particular
matter. We find that this settlement is a—is one that’s in the best interest of the parties.
We find that it’s one that serves judicial economy, and we find that it’s in good faith.
That will be the order of This Court.”
¶ 26 Following the court’s ruling, Cerro asked, and was allowed, to make a record of its position
on good faith. Cerro argued that a decision on good faith was premature because the court does
not know “whose [sic] getting what.” Counsel observed that there were no provisions in the
Settlement Agreement explaining “how the distribution is to be done.” Counsel acknowledged
that the court had discretion in deciding whether to allow an evidentiary hearing on a
good-faith motion and pointed out that there was precedent for evidentiary hearings in cases
where the settling parties were unable to present information regarding the value of a
settlement or how the proceeds would be allocated.
¶ 27 In response, counsel for the Monsanto defendants reiterated that the Monsanto defendants
had paid $10 million to the settling plaintiffs, and “while unlikely, it is possible that the total
amount of consideration that will be paid in this event has already been paid,” plaintiffs’
counsel agreed. No evidence or exhibits were offered during the hearing, and there is no
indication that the presiding judges were presented with, or reviewed, the Settlement
Agreement prior to ruling on the plaintiffs’ motion for a finding of good faith.
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¶ 28 In a written order entered on March 29, 2016, the trial court granted the plaintiffs’ motion
for a finding of good faith in the 2009 cases and dismissed the plaintiffs’ claims against the
Monsanto defendants, with prejudice. The court further ordered that, pursuant to the
Contribution Act, any potential liability of the settling defendants to other tortfeasors was
discharged and any and all contribution claims asserted, or that could be asserted, by or against
the settling defendants, were barred. The court directed that “the settlement agreement and
each release, as well as the transcript of the March 29 hearing, shall be filed under seal subject
to the further order of the court.” According to the record, a copy of the Settlement Agreement
and the corresponding exhibits were filed in the 2009 cases, under seal, that same day. Finally,
the court found that there was no just reason for delaying an appeal of its order.
¶ 29 On May 19, 2016, Cerro filed a third-party complaint in the 2014 cases, seeking
contribution against the Monsanto defendants. Cerro alleged that the Monsanto defendants
produced, stored, and/or disposed of materials containing PCBs, dioxins, and furans, which
resulted in the release of such substances into the environment in the affected areas described
in the 2014 complaints. In a prayer for relief, Cerro asserted that if it is found liable, then the
Monsanto defendants should be found jointly and severally liable for plaintiffs’ damages in an
amount commensurate with their relative degree of culpability.
¶ 30 On June 13, 2016, the plaintiffs filed a motion for a good-faith finding in the 2014 cases.
The plaintiffs asked the court to find that the November 21, 2014, settlement was made in good
faith and to dismiss, with prejudice, all contribution claims asserted against the settling
defendants. The plaintiffs also requested an order discharging any potential liability of the
Monsanto defendants to other tortfeasors and barring all contribution claims that have been
asserted, or that could have been asserted, by or against the Monsanto defendants.
¶ 31 On June 22, 2016, Cerro filed a brief in opposition to the plaintiffs’ motion for a good-faith
finding. Cerro argued that the proposed Settlement Agreement simply established a
“settlement protocol” and lacked the “factual detail necessary to evaluate whether this
settlement was made in ‘good faith’ as that term is defined in Illinois law.” Cerro claimed that
the Settlement Agreement was deficient in that it did not identify the total amount of the
settlement or allocate the settlement dollars among the respective claimants and their claims.
Cerro argued that, without this information, the trial court could not properly evaluate whether
the settlement was fair and made in good faith, “as opposed to contrived or manipulated in a
fashion that would unfairly prejudice Cerro.” Cerro further argued that the deficiencies in the
agreement would substantially prejudice its ability to obtain a setoff of the sums paid by the
Monsanto defendants, should the court find that the settlement was made in good faith. Cerro
asked the court to find that the good-faith motion was premature and deny it. In the event the
court granted the motion, Cerro asked the court to retain jurisdiction in order to “review and
approve the future allocation of the settlement proceeds” and preserve Cerro’s objections to
“the future allocation for purposes of setoff.”
¶ 32 On June 23, 2016, plaintiffs’ motion was called for a hearing before Judge Gleeson and
Judge Lopinot. Initially, plaintiffs’ counsel presented a copy of the Settlement Agreement,
without the exhibits, to the court. Plaintiffs’ counsel noted that the court had made a finding of
good faith regarding the same agreement in the 2009 cases and reminded the court of the strong
public policy in favor of promoting settlements. Counsel argued that this was “massive
litigation” that had been pending for a long time and that the settlement resulted following
mediation sessions with all of the parties’ attorneys, including Cerro’s. Counsel asserted that
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this was a valid legal settlement that was obtained after the parties exchanged “massive
amounts” of discovery and engaged in 10 mediation sessions, initially facilitated by a retired
circuit court judge and later joined by a renowned mediator.
¶ 33 During argument on the motion for a good-faith finding, plaintiffs’ counsel referred to
exhibit No. 7 of the Settlement Agreement. After pausing to note that the court had not been
provided with exhibit No. 7, or any of the other exhibits referenced in the settlement, counsel
continued with his argument. He stated that “the protocol that has been arranged” and “the core
of the ongoing settlement and how people will get paid” was set forth in exhibit No. 7. Counsel
explained that there would be a fixed sum of money deposited in three settlement funds: a
settlement fund for the deceased, a settlement fund for the property owners, and a settlement
fund for those living participants in this lawsuit. Counsel noted that the funds will be “funded
through a process, a protocol that was developed between the parties, and if you want to study
it in detail it is on file.” He continued:
“Essentially what is going to happen and is in the process of happening actually,
blood tests have been taken. Six hundred of the 11,000 plaintiffs were chosen randomly
to be tested and have their blood tested for the level of PCBs and toxins in their blood
system as opposed to the general population at large. These are people within that class,
*** the 11,000 tort claimants that you’re considering finding this settlement
appropriate for.
They live within a 6 mile radius of Sauget plants of Cerro and Monsanto. So
they’ve got that smell in their nose every day ***. And they live [sic] next to it for a
period of time, so they’re going to be—600 of them are going to be tested and based
upon that there is an objective process to extrapolate from that in findings that are
reached and depending upon that level there is a fund that’s going to be created and that
fund will be administered objectively by an administrator who is going to—who has his
marching orders under objective guidelines to arrive at an allocation between the
11,000 plaintiffs. And that essentially is the process by which payment will be made in
this case.
Now while it is not known at this point exactly or precisely how much money will
be in this fund to be allocated, there is known at this time that there will be more
monies, that $10,000,000 has already been put aside for the settling plaintiffs, that
some percent of those plaintiffs have agreed to this agreement and not opted out. And
we have today and want to put on file on CDs the agreements, the releases that they
have signed and we’ll have that on file today.”
¶ 34 In response, Cerro’s counsel pointed out that while the plaintiffs’ attorney represented that
there were three funds that will be administered by an “independent administrator,” the
Settlement Agreement indicates that there is “a trust agreement for the distribution” and that
the plaintiffs’ counsel will serve as Trustees of that Trust. Counsel pointed out that no one has
ever seen the Trust Agreement. Counsel argued that the Settlement Agreement before the court
involved “thousands upon thousands of individual settlements” and that, until there is “an
allocation of these thousands upon thousands of individual settlements,” a finding of good
faith is “premature.” Counsel concluded that the court did not have sufficient information to
“stamp” the settlement with a good-faith finding because the terms were unknown.
¶ 35 In rebuttal, plaintiffs’ counsel claimed that the Settlement Agreement was “a unique
settlement” in that the plaintiffs were asking for a finding of good faith “when every one of
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these plaintiffs have already received settlement money of $600 a piece when they signed the
releases.” Counsel further argued that the settlement funds would be allocated through an
administrator who has objective guidelines that have to be followed and that neither the court
nor the plaintiffs and their counsel would want court approval of every single allocation.
Plaintiffs’ counsel added that the court was capable of ruling on good faith without a precise
determination of the overall damages and the proportionate liability of the settling defendants.
Counsel also objected to Cerro’s alternative request that the trial court retain jurisdiction.
¶ 36 No testimony or other evidence was offered during the hearing. At the conclusion of the
arguments of counsel, the two presiding judges conferred off the record. Judge Lopinot then
issued a ruling from the bench. Initially, the court found that there had been no showing by
Cerro that these settlements were not in good faith. The court noted that the plaintiffs had
received some compensation and that there was a framework for additional compensation. The
court found that counsel’s point regarding the approval of allocations was well taken, asking
how the court “would oversee that in any other way other than what the settlement agreement
has proposed.”
“We understand the defendant’s arguments with regard to allocation and so forth
but since apparently it’s going to the Appellate Court anyway, I suppose that the
Appellate Court could give us some indication with regard to allocation on these other
issues if something else is needed. So in essence we are going to approve the good faith
findings with regard to these settlements.”
¶ 37 On June 23, 2016, the court entered a written order granting the plaintiffs’ motion for a
good-faith finding. The order provided:
“Pursuant to the Contribution Act, any potential liability of the settling companies to
other tortfeasors with respect to the aforesaid plaintiffs is DISCHARGED. Further, all
contribution claims asserted against the settling companies with respect to the aforesaid
plaintiffs are DISMISSED WITH PREJUDICE, and all contribution claims that could
have been or could be asserted by or against settling companies with respect to the
aforesaid plaintiffs are BARRED.”
The court further ordered that “the settlement agreement and each release, as well as the
transcript of the hearing on this matter, shall be filed under seal.” Finally, the court found there
was no just reason to delay an appeal of the order. Thus, the Monsanto defendants were
completely discharged from any liability to Cerro.
¶ 38 The Settlement Agreement
¶ 39 The confidential Settlement Agreement between the plaintiffs and the Monsanto
defendants is dated November 21, 2014. The agreement contains 32 pages of text and a
signature page. An index of exhibits, along with 15 exhibits and addenda, are appended to and
referenced in the Settlement Agreement, adding 955 pages of material. The exhibits are not
tabbed, and the index does not offer a starting page number for each exhibit and addendum.
¶ 40 The general nature of the plaintiffs’ claims is summarized on the second page of the
Settlement Agreement as follows:
“Whereas, the PLAINTIFFS/CLAIMANTS assert claims for negligence, strict
liability, ultra hazardous activity, public nuisance, private nuisance, trespass, battery,
or otherwise seeking relief, inter alia, for all past, present, and future alleged real and
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personal property damage, bodily and personal injury, lost wages, earnings and
income, diminution of property value, loss of use and enjoyment, remediation,
exposure to chemicals, discomfort, disruption, fear, fright, inconvenience, medical
expenses, other expenses, pain, suffering and mental anguish and distress, medical
monitoring or punitive damages related to PLAINTIFFS/CLAIMANTS’ or
DECEDENTS’ alleged exposure to hazardous or harmful substances or materials
allegedly manufactured, produced, distributed, sold, marketed, disposed of, and/or
released by the RELEASED PARTIES from current or former facilities in the
Sauget/Cahokia, Illinois, and St. Louis, Missouri areas.”
¶ 41 In subsequent paragraphs, there are provisions indicating that the “RELEASED
PARTIES” have denied all liability and that the “PLAINTIFFS/CLAIMANTS”
(Plaintiffs/Claimants) have agreed “to compromise, settle and dismiss with prejudice all
claims asserted, or which could have been asserted against the RELEASED PARTIES in the
LAWSUITS or otherwise, on the bases hereinafter set forth.”
¶ 42 The Settlement Agreement also includes a section of definitions. This section is more than
five pages in length and contains descriptions or definitions for 34 words or phrases used in the
text of the Settlement Agreement.
¶ 43 Additionally, the Settlement Agreement contains an “OPT OUT” (Opt Out) provision.
According to the Opt Out provision, the settlement was conditioned upon participation by
100% of the “LIVING PLAINTIFF/CLAIMANTS” (Living Plaintiffs/Claimants). If 100%
participation was not obtained, the settlement was “voidable at the option and in the sole
discretion” of the Monsanto defendants. If the Monsanto defendants opted to void the
settlement, all monies previously paid into the “ESCROW ACCOUNT” (Escrow Account),
including accrued interest, would be returned to the Monsanto defendants. If the Monsanto
defendants elected to go forward without 100% participation, the $10 million previously paid
into the Escrow Account would be transferred into a “TRUST,” held by “PLAINTIFFS’
COUNSEL,” for the benefit of “PLAINTIFFS/CLAIMANTS.” The Opt Out date was set 180
days from the date of execution of the Settlement Agreement.
¶ 44 By all accounts, plaintiffs’ counsel was unable to obtain 100% participation. Because there
was a sufficiently high level of participation, the Monsanto defendants elected to proceed with
the settlement. Thus, in exchange for executing the Release, each living plaintiff or claimant
received $600. The Settlement Agreement also provided that new money would be deposited
into additional settlement funds pursuant to a schedule outlined in paragraph 7 of the
Settlement Agreement. The Trust was to be held jointly by all of the plaintiffs’ attorneys for
the benefit of their clients. The plaintiffs’ attorneys were the Trustees of the Trust.
¶ 45 Under the Settlement Agreement, the Monsanto defendants have no role with respect to
payouts to individual plaintiffs from the Trust. The Monsanto defendants are only obligated to
transfer funds to a Trust, jointly held by all of the plaintiffs’ attorneys, and upon transfer, they
“are no longer responsible for and are specifically relieved of responsibility for distribution of
the funds.” The Settlement Agreement provides that the Trustees’ actions are to be guided by
their fiduciary duties to the plaintiffs and claimants, consistent with the Settlement Agreement.
It further provides that the Trustees’ actions “will also be governed by a TRUST
AGREEMENT, which will outline in detail the distribution method for all settlement funds.”
(Emphasis added.) The Settlement Agreement defines “TRUST AGREEMENT” as “a trust
document which, in addition to this SETTLEMENT AGREEMENT, will govern the distribution
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of monies from the TRUST.” (Emphasis added.) The Trust Agreement is not in the record on
appeal, and there is no indication it was ever presented to the trial court for review.
¶ 46 The Settlement Agreement identifies “LIVING PLAINTIFFS/CLAIMANTS” as all living
persons who have filed or will file lawsuits or claims against the Monsanto defendants on their
own behalf. It identifies a “NON PARTICIPATING PLAINTIFF/CLAIMANT” as any
individual Living Plaintiff/Claimant who is presented with the Settlement Agreement and the
Release, and who elects not to participate in the settlement. Under the express terms of the
settlement, the “NON-PARTICIPATING PLAINTIFFS/CLAIMANTS” will be “excluded
from the settlement entirely, including all settlement funds.”
¶ 47 The Settlement Agreement also distinguishes the group of Living Plaintiffs/Claimants
from an additional 1370 plaintiffs, who were referred to as “DECEASED
PLAINTIFFS/CLAIMANTS.” Members of the latter group are identified as deceased
individuals who lived in the affected area and whose family members are pursuing claims on
their behalf. According to the Settlement Agreement, the $10 million “BASE SETTLEMENT
FUND” (Base Settlement Fund) is intended to satisfy only the claims of the Living
Plaintiffs/Claimants and does not satisfy any portion of the claims of “DECEASED
PLAINTIFFS/CLAIMANTS” or any property-damage claims.
¶ 48 In order to participate in the settlement, a Living Plaintiff/Claimant is required to sign the
Settlement Agreement and the Release, titled “Release of All Claims (Living Plaintiff).” The
Release, identified as exhibit No. 4, is included with the exhibits attached to the Settlement
Agreement. The first page of the Release is found on page 547 of the Settlement Agreement.
The Release contains three pages of text, single-spaced and printed in very small font,
followed by two signature pages. Within the text of the Release, there are statements providing
that the Monsanto defendants are released from liability for “any and all past, present and
future claims” that were or could have ever been filed for every kind of alleged exposure, or
continuing exposure, as well as for unknown claims. The Release also contains provisions
dealing with Medicare and Medicaid liens. Attached to the Release is an “Authorization to
Release Information.” This authorization is executed in blank and permits the recipient to
obtain medical information otherwise protected by the Health Insurance Portability and
Accountability Act of 1996 (HIPAA). There is also an employment contract attached to the
Release. The contract allows the settling plaintiff’s counsel to represent that plaintiff’s
individual interests with regard to Medicare and Medicaid lien issues. Finally, the Release
requires the settling plaintiff to make an affirmation, declaring whether he or she has been
involved in a bankruptcy proceeding.
¶ 49 The Additional Settlement Funds
¶ 50 The Settlement Agreement identifies four additional settlement funds and establishes
protocols and procedures for determining whether the Monsanto defendants will fund them.
The protocols and procedures are referenced in the Settlement Agreement, and are more fully
outlined within certain exhibits attached to the agreement.
¶ 51 According to the terms of the settlement, the Monsanto defendants agreed to transfer an
additional $300,000 into the Trust to create “ADDITIONAL SETTLEMENT FUND #1”
(Additional Settlement Fund No. 1). This fund is intended to compensate 600 living plaintiffs,
who are selected at random and who agree to provide a blood sample for testing. According to
protocols outlined in exhibit No. 7, a list of 1000 randomly selected plaintiffs will be
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generated, and the first 600 plaintiffs who agree to have their blood drawn will each be paid
$500.
¶ 52 There is a penalty provision for those plaintiffs who refuse to consent to the blood draw.
The penalty provision is found only in the Release, not in the Settlement Agreement. Under
this penalty provision, if a plaintiff who is selected at random to participate in the blood draw
refuses or fails to participate “and such refusal or failure to participate is not based upon the
written advice or instruction of a medical provider” or otherwise excused in writing by the
settling defendants, that plaintiff’s “right to participate in the distribution of any additional
payments from Additional Settlement Funds 1-4 is hereby forfeited,” and his or her
distribution of total settlement proceeds “will be limited to the Base Consideration of six
hundred dollars ($600).”
¶ 53 The procedures and protocols for gathering, testing, and analyzing the random blood
samples are set forth in exhibit No. 8. According to the protocols, the number of living
plaintiffs who have agreed to participate in the settlement by signing the Release will be
divided by the total number of individuals who provide blood samples for testing (600). This
formula will produce an “extrapolation factor,” which determines the number of living
plaintiffs that each person giving blood theoretically represents. The extrapolation
methodology is described in paragraph 10.3 of exhibit No. 8. A data valuation company will
analyze the results for each of the 600 blood samples and place each sample into one of six
tiers.
¶ 54 “ADDITIONAL SETTLEMENT FUND #2” (Additional Settlement Fund No. 2) is
intended to provide additional compensation calculated pursuant to the six tiers of value set
forth in exhibit No. 9. Recovery of monies from Additional Settlement Fund No. 2 is limited to
living plaintiffs. Each tier has an assigned dollar value. The value in each of the six tiers is
based on agreed-to PCB concentration percentiles. The first tier refers to blood samples with
PCB concentrations greater than the ninety-fifth percentile, which has an assigned payment
value of $250,000 per claimant. The second tier refers to samples where the PCB
concentrations are at the ninety-fifth percentile, and such concentrations are valued at $12,500
per plaintiff. Concentrations ranging from the ninetieth percentile to less than the ninety-fifth
percentile are valued at $8000 per claimant in the third tier. Concentrations ranging from the
seventy-fifth percentile to less than the ninetieth percentile are valued at $4000 per claimant in
the fourth tier. Concentrations ranging from the sixty-fifth percentile to the seventy-fifth
percentile in the fifth tier are valued at $2000 per plaintiff. Samples below the sixty-fifth
percentile are valued at $0 in the sixth tier. The data valuation company will then multiply the
total number of samples placed into each of the six tiers by the “extrapolation factor” to
determine, in theory, how many total plaintiffs fall into each of the six tiers.
¶ 55 According to exhibit No. 9, total compensation payments for the top tier are capped at
$1.25 million. Thus, no more than five living plaintiffs could actually receive a $250,000
payment. If more than five living plaintiffs qualified at this level, the amount of compensation
would be prorated. For example, if one-tenth of 1% of the 10,000 plaintiffs qualified at the top
tier level, then each plaintiff would receive only $12,500—the same amount as the second-tier
plaintiffs. Likewise, if each of the 600 blood samples falls into the lowest tier, the Monsanto
defendants will not be required to deposit any additional money into the Trust. The Monsanto
defendants will have settled the claims of the participating living plaintiffs for $10.3 million.
Thus, the amount to be paid into Additional Settlement Fund No. 2 could range from a
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staggering sum in excess of $300 million to nothing. The funds, if any, to be deposited into
Additional Settlement Fund No. 2 were unknown at the time of the good-faith hearings
because the PCB analysis had not been completed and the extrapolation factor had not been
calculated. The Settlement Agreement does not define or describe how the Trustees (the
plaintiffs’ attorneys) of the Trust would allocate Additional Settlement Fund No. 2 among the
individual living plaintiffs, should there be any money to allocate. As previously noted, the
terms of a separate Trust Agreement control the distribution of funds from the Trust, but that
Trust Agreement is not part of the record, and there is no indication that it was provided or
disclosed in any of the proceedings before the trial court.
¶ 56 Although the families of the 1370 deceased plaintiffs were not included in the initial Base
Settlement Fund, the settlement provides that any monies paid into “ADDITIONAL
SETTLEMENT FUND #3” (Additional Settlement Fund No. 3) would be used to compensate
these claimants. According to the Settlement Agreement, the amount of money that the
Monsanto defendants will be required to deposit into Additional Settlement Fund No. 3
depends on the results of the random blood tests and the level of participation by the
representatives of the deceased plaintiffs. Under the agreement, if 100% of the representatives
execute a “DECEASED PLAINTIFF RELEASE,” then the Monsanto defendants will pay an
amount equal to 10% of the amount calculated for Additional Settlement Fund No. 2. If less
than 100% of the representatives participate, then “the percentage multiplier (10%) will be
reduced pro-rata by the percentage of those who refuse or fail to sign” a “DECEASED
PLAINTIFF RELEASE.” Because the value of Additional Settlement Fund No. 2 has not been
determined, it is not possible to calculate the amount of money that could be deposited in
Additional Settlement Fund No. 3. Once again, the Settlement Agreement does not define or
describe how the Trustees of the Trust would allocate the money, if any, among the families of
deceased plaintiffs and claimants who participate and sign the Release.
¶ 57 “ADDITIONAL SETTLEMENT FUND #4” (Additional Settlement Fund No. 4) is a fund
intended to compensate living plaintiffs who are able to provide proof of ownership of a parcel
or parcels of real estate located within a six-mile radius of the Monsanto facility. The
Settlement Agreement states that this fund is intended to provide “a monetary settlement of the
various contested property damage claims based on alleged potential exposure and
contamination of the property,” as asserted by the plaintiffs. It further states that Additional
Settlement Fund No. 4 is not “a remediation fund, and is not meant to cover the cost of any
clean up.” Thus, it provides no compensation for one of the damage claims alleged by the
plaintiffs in the 2009 cases.
¶ 58 The Settlement Agreement identifies 4000 “properties whose owners are potentially
eligible to recover from Additional Settlement Fund #4.” Thus, if 90% of the eligible plaintiffs
sign the Release and indemnity agreements, then the Monsanto defendants would be required
to pay “an amount equal to five percent (5%) of ADDITIONAL SETTLEMENT FUND #2,”
to fund Additional Settlement Fund No. 4. The Settlement Agreement also provides that “the
percentage multiplier (5%) will be reduced pro rata by the percentage of owners below the
90% threshold who fail to participate or provide the necessary documentation.” For example, if
only 50% of the property owners execute the Release and provide proof of ownership, the
Monsanto defendants would pay 2.5% of the sum paid into Additional Settlement Fund No. 2.
Given that the value of Additional Settlement Fund No. 2 has not been determined, and could
be zero, it is not possible to calculate the amount that might be paid into Additional Settlement
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Fund No. 4. Again, as with Additional Settlement Fund Nos. 2 and 3, the Settlement
Agreement does not define or describe how the Trustees of the Trust will allocate any money
among the plaintiffs who have asserted property damage claims.
¶ 59 II. ANALYSIS
¶ 60 On appeal, Cerro challenges the trial court’s findings that the aggregate settlement of the
2009 cases, and the 2014 cases, was made in “good faith” within the meaning of the
Contribution Act (740 ILCS 100/0.01 et seq. (West 2014)). Cerro timely appealed from the
orders entered March 29, 2016, in the 2009 cases, and the orders entered June 23, 2016, in the
2014 cases. Subsequently, the appeals were consolidated for purposes of argument and
decision.
¶ 61 The Contribution Act creates a statutory right of contribution where two or more persons
are potentially liable in tort arising out of the same injury to a person or property or the same
wrongful death. 740 ILCS 100/2(a) (West 2014). The right of contribution exists only in favor
of a tortfeasor who has paid more than his pro rata share of damages to the injured party. 740
ILCS 100/2(b) (West 2014). When a release is given to a tortfeasor arising from a good-faith
settlement, the release “does not discharge any of the other tortfeasors from liability *** but it
reduces the recovery on any claim against the others” to the extent of any amount stated in the
release, or in the amount of the consideration actually paid, whichever is greater. 740 ILCS
100/2(c) (West 2014). A tortfeasor who settles in good faith is discharged from all liability for
contribution to any other tortfeasor. 740 ILCS 100/2(d) (West 2014). Thus, the Contribution
Act serves two equally important public policies: encouraging settlement and equitable sharing
of damages among tortfeasors. Johnson v. United Airlines, 203 Ill. 2d 121, 133, 784 N.E.2d
812, 821 (2003); In re Guardianship of Babb, 162 Ill. 2d 153, 171, 642 N.E.2d 1195, 1203
(1994).
¶ 62 The only restriction that the Contribution Act imposes on the parties’ right to settle is that
the settlement be made in good faith. Johnson, 203 Ill. 2d at 128. The term “good faith,”
however, is not defined in the Contribution Act, and there is no “single, precise formula for
determining what constitutes ‘good faith’ within the meaning of the Contribution Act that
would be applicable in every case.” Johnson, 203 Ill. 2d at 134. Whether a settlement
agreement is made in good faith is a matter to be determined by the trial court after considering
all of the circumstances surrounding the settlement. Guardianship of Babb, 162 Ill. 2d at 162.
The totality-of-the-circumstances analysis allows the trial court to effectuate the public policy
favoring the peaceful settlement of claims, while vigilantly watching for any evidence of
collusion, unfair dealing, or wrongful conduct by the settling parties. Guardianship of Babb,
162 Ill. 2d at 162. A settlement will not be found to be in good faith where it is shown that the
settling parties engaged in wrongful conduct, collusion, or fraud. Guardianship of Babb, 162
Ill. 2d at 162. Additionally, a settlement agreement that conflicts with the terms of the
Contribution Act or is inconsistent with its underlying policies cannot satisfy the good-faith
requirement of the Contribution Act. Johnson, 203 Ill. 2d at 134.
¶ 63 The settling parties have the burden to make a preliminary showing of good faith. Johnson,
203 Ill. 2d at 129. In meeting this burden, the settling parties must show, at a minimum, the
existence of a legally valid settlement agreement. Johnson, 203 Ill. 2d at 132. However, not all
legally valid settlements will satisfy the good-faith requirement of the Contribution Act. In
determining whether a settlement is reasonable, a court may require factual evidence, in
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addition to the settlement agreement itself, before determining, as an initial matter, whether the
settlement is fair and reasonable in light of the policies underlying the Contribution Act.
Johnson, 203 Ill. 2d at 132. Once the preliminary showing of good faith has been made by the
settling parties, the burden shifts to the party challenging the good faith of the settlement to
show, by a preponderance of the evidence, the absence of good faith. Johnson, 203 Ill. 2d at
132.
¶ 64 In considering a request for a finding of good faith, the trial court is in the best position to
decide what type of hearing is necessary to fully adjudicate the issue of good faith. Johnson,
203 Ill. 2d at 136. The trial court is not required to hold an evidentiary hearing prior to making
a good-faith finding, but the court must have sufficient facts to fully evaluate the settlement
and the allocation of the settlement proceeds. Johnson, 203 Ill. 2d at 136. Whether a settlement
satisfies the good-faith requirement under the Contribution Act is a matter within the discretion
of the trial court, based upon the court’s consideration of the totality of the circumstances.
Guardianship of Babb, 162 Ill. 2d at 162. The court’s determination of the good-faith issue will
not be reversed on appeal absent an abuse of discretion. Guardianship of Babb, 162 Ill. 2d at
162.
¶ 65 In this case, Cerro contends that the trial court’s good-faith orders were premature because
the settling parties failed to provide sufficient information to show the settlement satisfied the
Contribution Act’s policy concerning equitable apportionment of damages. Cerro claims that
two aspects of the settlement are unknown: (1) the total amount that the Monsanto defendants
will ultimately have to pay under the settlement and (2) how the settlement fund will be
allocated among more than 11,000 individual plaintiffs and claimants. Cerro argues that
without this information, a good-faith finding “defies” the Contribution Act’s basic policies of
ensuring the equitable apportionment of liability among codefendants and protecting the
statutory right of setoff.
¶ 66 In response, the settling parties claim they presented a legally valid settlement agreement
that was developed after the exchange of a massive amount of discovery and extensive
mediation efforts by all parties. They further claim that they met their initial burden of making
a preliminary showing of good faith and that Cerro failed to satisfy its burden to show a lack of
good faith by a preponderance of the evidence.
¶ 67 A. The Existence of a Legally Valid Settlement Agreement
¶ 68 As previously noted, when determining whether a settlement agreement was made in good
faith, the trial court must consider the totality of the circumstances surrounding the settlement.
Thus, as a threshold matter, the trial court must determine whether the settlement is legally
valid, i.e., obtained with informed consent of the individual plaintiffs and without collusion or
internal conflicts of interest. Johnson, 203 Ill. 2d at 132; Knisley v. City of Jacksonville, 147 Ill.
App. 3d 116, 122, 497 N.E.2d 883, 887-88 (1986). In determining whether a settlement
agreement is legally valid, the court may consider a number of factors, including the nature of
the good-faith proceedings, the manner in which the settling parties obtained approval of the
settlement, the terms of the settlement, and whether the settlement was obtained with the
informed consent of the individual plaintiffs and without internal conflicts of interest. Johnson,
203 Ill. 2d at 134; Guardianship of Babb, 162 Ill. 2d at 161-63.
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¶ 69 The Settlement Proceedings and the Manner of Approval
¶ 70 In this case, the trial court was asked to consider an aggregate settlement of thousands of
individual causes of action that were procedurally joined. During the hearings on the plaintiffs’
motions for good-faith findings, counsel for the settling parties provided little information
regarding the specific terms of the settlement. Instead, counsel characterized good-faith
hearings as “routine” and relied heavily on the “the presumption that settlements are made in
good faith.” Counsel also relied on the fact that the settlement was supported by consideration,
pointing out that the Monsanto defendants had deposited $10 million into a Trust Fund, and
that the individual plaintiffs and claimants had already executed the Release and received $600
in “Base Consideration.” The settling parties offered no explanation as to how the parties
arrived at the $600 “Base Consideration” payment or why all living plaintiffs were treated
identically, despite their individual claims. There was no explanation as to why the families of
the deceased plaintiffs were excluded from this payment. During the hearings, plaintiffs’
counsel noted that the settlement was the product of an extensive mediation process, but his
comments about the substance of the mediation were vague. For example, counsel noted that
“hundreds of thousands of documents” were exchanged during mediation and that “a lot of
work” was done by “a number of attorneys,” but he offered no information regarding the
nature of the documents or the particular issues that were in dispute during the mediation
process. Counsel did not provide the court with an assessment of the potential value of the
plaintiffs’ claims and damages, and he did not discuss, even in general terms, the liability of
the respective defendants and available defenses. Counsel informed the court that the parties
had exchanged reports of their respective experts, but he did not identify the experts or provide
an overview of their opinions.
¶ 71 Based on the record, there is no indication that the trial court reviewed the Settlement
Agreement prior to issuing its findings of good faith in either the 2009 cases or the 2014 cases.
The record suggests that the Settlement Agreement was filed in the 2009 cases, only after the
court directed that the Settlement Agreement, each Release, and the hearing transcript be filed,
under seal, as part of the good-faith order. The report of proceedings of the good-faith hearing
in the 2014 cases indicates that plaintiffs’ counsel provided the trial court with a copy of the
Settlement Agreement, without the corresponding exhibits, and there is no indication that the
court reviewed any portion of the document prior to issuing a finding of good faith in those
cases. Further, the Trust Agreement, which purportedly governs the distribution method for all
settlement funds, is not in the record, and it has never been produced, nor its terms discussed.
There is no indication that the Trust Agreement was ever made available to the trial court
during any of the proceedings in this case. Thus, we find no indication that the trial court
reviewed, analyzed, or had access to the salient terms of the Trust Agreement at any time
before making the good-faith findings.
¶ 72 It is noteworthy that in approving the settlement as to the 2009 cases, the trial court found
that the “settlement concept” had been known to the parties for some time and, in approving
the settlement as to the 2014 cases, the court found that the plaintiffs had received some
compensation and there was a “framework” for additional compensation. A “concept” is
defined as a thought or notion, a general or abstract idea, or a theoretical construct. Webster’s
Third New International Dictionary 469 (1986). “Framework” is defined as a skeletal or
structural frame, a basic conceptual structure or scheme, or the limits or outlines of a particular
set of circumstances. Webster’s Third New International Dictionary 902 (1986). Thus, at the
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time of the good-faith hearings, the trial court seemingly recognized that the parties had only a
conceptual framework for calculating the total value of the settlement and that substantive
data, necessary to calculate the total value of the settlement or even a reasonable estimate of the
value, was lacking. The trial court may have also recognized that the settling parties failed to
present even a skeletal framework for the allocation of settlement dollars among the individual
plaintiffs and claimants. Under these circumstances, the court had a duty to scrutinize the
Settlement Agreement and to inquire about its terms. But, based upon this record, it did not do
so. The failure of the settling parties to provide basic information to the trial court concerning
the terms of the settlement and the method of allocation of the settlements funds is troubling
and casts doubt on the legal validity of the Settlement Agreement.
¶ 73 Informed Consent and Conflicts of Interest
¶ 74 After reviewing the Settlement Agreement and the Release, we have a number of questions
and concerns surrounding informed consent and the adequacy of representation, which also
casts doubt on the legal validity and good faith of the settlement. Initially, we note that this was
an aggregate settlement of what is commonly referred to as a “mass tort” action. An aggregate
settlement occurs when an attorney, while representing two or more clients in a joined action,
settles the entire action on behalf of all clients, without negotiating an individual, fact-specific
settlement for each client. Unlike class action settlements, there are no statutory provisions
requiring the circuit court to evaluate and approve aggregate settlements of procedurally joined
claims. Knisley, 147 Ill. App. 3d at 122. There are, however, rules of professional
responsibility that govern the negotiation of aggregate settlements. Knisley, 147 Ill. App. 3d at
122.
¶ 75 The Illinois Rules of Professional Conduct of 2010 prescribe the professional
responsibilities of lawyers who participate in the negotiation of aggregate settlements on
behalf of their clients. Rule 1.8(g) of the Rules of Professional Conduct states:
“A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, *** unless each client gives
informed consent, in a writing signed by the client. The lawyer’s disclosure shall
include the existence and nature of all the claims *** and of the participation of each
person in the settlement.” Ill. R. Prof’l Conduct (2010) R. 1.8(g) (eff. Jan. 1, 2010).
¶ 76 The comments accompanying subsection (g) of Rule 1.8 consider the potential conflicts of
interests that may arise when a lawyer represents more than one client in a joinder action. Ill. R.
Prof’l Conduct (2010) R. 1.8 cmt. 13 (adopted July 1, 2009). Rule 1.8 is a corollary of Rule
1.2(a) and Rule 1.7 (Ill. R. Prof’l Conduct (2010) Rs. 1.2(a), 1.7 (eff. Jan. 1, 2010)) and
provides that before any settlement offer is made or accepted on behalf of multiple clients, the
lawyer must inform each client about all the material terms of the settlement, including what
the other clients will receive or pay if the settlement is accepted. Ill. R. Prof’l Conduct (2010)
R. 1.8 cmt. 13 (adopted July 1, 2009). Thus, an aggregate settlement requires the “informed
consent” of each individual client.
¶ 77 “Informed consent” is defined as “the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed course of conduct.” Ill.
R. Prof’l Conduct (2010) R. 1.0(e) (eff. Jan. 1, 2010). The comments pertaining to the
definition of “informed consent” state that the “communication necessary to obtain such
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consent will vary according to the Rule involved and the circumstances giving rise to the need
to obtain informed consent.” Ill. R. Prof’l Conduct (2010) R. 1.0 cmts. 6, 7 (amended Oct. 15,
2015). Accordingly, an individual litigant should not be bound by an aggregate settlement
unless he has been informed of all of the material terms of the settlement and has specifically
agreed to the terms of the settlement. Ill. R. Prof’l Conduct (2010) Rs. 1.0(e), 1.8(g) (eff. Jan.
1, 2010); Knisley, 147 Ill. App. 3d at 122.
¶ 78 Further, Rule 1.7 prohibits a lawyer from representing a client if the representation
involves a “concurrent conflict of interest.” Ill. R. Prof’l Conduct (2010) R. 1.7 (eff. Jan. 1,
2010). A concurrent conflict of interest exists if “the representation of one client will be
directly adverse to another client,” or there is a “significant risk that the representation of one
or more clients will be materially limited by the lawyer’s responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.” Ill. R. Prof’l Conduct
(2010) R. 1.7(a) (eff. Jan. 1, 2010). Rule 1.7(b) provides that a lawyer with a concurrent
conflict of interest may, nonetheless, represent a client if (1) the lawyer reasonably believes
that he or she will be able to provide competent and diligent representation to each affected
client, (2) the representation is not prohibited by law, (3) the representation does not involve
the assertion of a claim by one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal, and (4) each affected client gives
informed consent. Ill. R. Prof’l Conduct (2010) R. 1.7(b) (eff. Jan. 1, 2010). These Rules of
Professional Conduct are for the protection of the individual litigants, and they should be
strictly observed by counsel representing multiple claimants.
¶ 79 In a case such as this, where the trial court is presented with a motion to approve the
settlement of thousands of individual claims that have been procedurally joined, the court has
an obligation to insure that plaintiffs’ counsel complied with Rule 1.7 and Rule 1.8(g) of the
Rules of Professional Conduct. This is essential because if the settlement agreement is found
legally invalid as a result of a lack of informed consent or due to the presence of internal
conflicts of interest among individual plaintiffs or the plaintiffs and their attorneys, there can
be no finding of “good faith” under the Contribution Act. Johnson, 203 Ill. 2d at 132. In this
case, we do not know if the trial court considered whether this aggregate settlement, involving
thousands of individual claims, complied with our Rules of Professional Conduct. The record
is silent on this matter.
¶ 80 After reviewing the Settlement Agreement and the Release, however, we find a number of
provisions that raise serious concerns about informed consent and potential conflicts of
interest. In this case, the Settlement Agreement purported to dispose of 131 mass tort actions,
filed on behalf of 11,546 individual plaintiffs and claimants, each of whom had alleged
individual personal injuries and property damages based on exposures to multiple toxins over a
period of many years. Plaintiffs’ counsel negotiated an aggregate settlement of all of these
claims. Thus, the settlement was not based on individual, fact-specific negotiations of each
person’s claims and damages. Under the Settlement Agreement, each living plaintiff and
claimant who signed a Release received the same “Base Consideration” payment of $600. In
addition, each of the 600 plaintiffs who was randomly selected and who consented to provide a
blood sample for analysis was paid an additional $500. Beyond these two guaranteed
payments, any additional compensation that might be paid was conditional and dependent on
the analysis of the randomly drawn blood samples. We are also concerned with the forfeiture
provision, obscured within the fine print of the Release. Under this provision, a litigant is
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barred from any further participation in the settlement if that litigant was selected for the blood
draw and refused, unless that litigant provided a documented medical reason or was otherwise
excused by the Monsanto defendants.
¶ 81 Further, based on the conceptual framework of the settlement, there was a finite sum of
money to be deposited in the additional settlement funds, and the amount of compensation
allocated to one plaintiff, or group of plaintiffs, could adversely affect the amount of
compensation available to other plaintiffs or groups of plaintiffs. Under this conceptual
framework, there are serious questions with regard to how each individual client was informed
that his or her case was negotiated in the aggregate, that the value of the individual
compensation for one plaintiff may be directly affected by the number of individuals
participating in the settlement, and that the individual compensation may be limited to only the
$600 minimal “Base Consideration” payment, in exchange for releasing the Monsanto
defendants from all liability for known and unknown claims. Again, plaintiffs’ counsel failed
to assure the court that they had fully complied with the Rules of Professional Conduct prior to
having each plaintiff execute a Release. The total lack of information casts a shadow on the
legal validity of the settlement itself.
¶ 82 The absence of the Trust Agreement presents another serious concern. The Settlement
Agreement provided that the plaintiffs’ attorneys would serve as Trustees of the Trust Fund
and that the Trust Agreement would “outline in detail” the distribution method for all
settlement funds. However, the Trust Agreement is not in the record, and the “detailed
instructions” regarding allocation and distribution were not provided to the trial court in any of
the proceedings. In the absence of the Trust Agreement, the trial court could not possibly know
how the plaintiffs’ attorneys, as Trustees, were going to allocate the additional funds, if any,
among the individual plaintiffs and claimants whom they represented. As noted above, the
conceptual framework of the Settlement Agreement presents potential conflicts of interest, not
only between individual plaintiffs and their attorneys, but also among the plaintiffs
themselves. And there is no indication from the record that the trial court required the settling
parties to produce the complete Trust Agreement. There is no indication that the court inquired
into whether the allocation method, as described by the settling parties, presented current or
potential conflicts of interest and whether the settling plaintiffs consented to the conflicts, after
being fully informed of them. There are many unanswered questions about whether the
plaintiffs’ attorneys provided adequate information so that each of their clients could make an
informed decision about whether to accept the settlement. Some of the questions include
whether the language of the Release was explained to each of the individual plaintiffs and
claimants; whether the plaintiffs’ attorneys explained the allocation process allegedly set forth
in the Trust Agreement; whether the plaintiffs’ attorneys, before asking each individual client
to execute the Release, adequately informed the individual client that certain claimants were
receiving a base consideration amount of $600, while others were not included in that fund;
whether the attorneys adequately advised the plaintiffs of the advantages and disadvantages of
the method chosen for allocating the settlement funds amongst the additional settlement funds;
and whether the attorneys adequately advised each of their clients that they could seek
independent legal advice before agreeing to the aggregate settlement and the allocation method
provided in the Trust Agreement. Finally, we note that the Settlement Agreement covered the
2009 cases and claims of individuals who had not yet filed lawsuits (the 2014 cases). Thus, it
would be important to know whether these claimants were represented by counsel at the time
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the Settlement Agreement was executed, as plaintiffs’ counsel could not settle claims for
individuals whom they did not then represent.
¶ 83 As noted previously, the Release is also of great concern, especially with regard to the issue
of informed consent and potential conflicts of interest. In this case, each participating plaintiff
and claimant was required to execute a “Living Plaintiff” Release. Those who signed the
document agreed to release the Monsanto defendants from liability for any and all past,
present, or future potential claims, known and unknown. The opening paragraph of the Release
provides that “the nature, structure, and terms” of the Settlement Agreement have been fully
disclosed to the individual plaintiffs and claimants. However, a careful reading of the Release
casts doubt on this representation. For example, the Release does not inform the individual
participant that he or she is consenting to an aggregate settlement. The Release contains no
provision informing the individual participant that his or her claims were negotiated as part of
a global settlement or that there was no independent evaluation of his or her individual injuries
and damages. The Release does not set forth the actual or projected sums for each of the
additional settlement funds, and it does not outline the protocols for allocation of those funds
among the individual settlement participants. There is no provision informing the individual
participant that the value of his or her claim would be conditioned on the results of blood
drawn from 500 randomly selected settlement participants. The Release also contains the
forfeiture provision that is not mentioned in the text of the Settlement Agreement. There is also
a broad confidentiality provision that prohibits disclosure of the content of the Release and the
Settlement Agreement to anyone other than plaintiffs’ counsel.
¶ 84 During the good-faith hearings, plaintiffs’ counsel made no representations regarding
whether their clients had been informed, prior to executing Releases, that the settlement
proceeds would be allocated differently among the plaintiffs, pursuant to protocols and
instructions set forth in the Settlement Agreement and the Trust Agreement. Plaintiffs’ counsel
provided no argument or evidence to demonstrate that the individual plaintiffs had reviewed
the Settlement Agreement or Trust Agreement at any time before executing the Release. There
is no indication that the individual plaintiffs were informed that their attorneys were pursuing
an aggregate settlement involving thousands of individual plaintiffs or that plaintiffs’ counsel
would be acting as court-appointed “Trustees,” instructing the Fund Administrator on the
apportionment and distribution of the settlement funds among the various individual plaintiffs
and claimants. There is no indication that each individual plaintiff agreed to waive any
conflicts created by the joinder of the thousands of individual claimants. Further, based on the
record, it appears there was no inquiry into the status of those individual clients who declined
to participate in the settlement. Thus, there are unanswered questions regarding whether
plaintiffs’ counsel would continue to zealously represent the individual interests of those
clients who had refused to participate in the settlement.
¶ 85 The form of the Release presents additional due process concerns. Unlike class action
litigation, there are no statutes, rules, or applicable case law governing the format of this type
of release and no requirement that a court approve the form and content of the release. In fact,
but for the fact that the Monsanto defendants sought to extinguish potential claims under the
Contribution Act, the settlement of these aggregated claims would not have required judicial
approval. However, once the issue of the good-faith settlement was presented to the trial court
for determination, it was incumbent upon the court to review the Release to insure that it
complied with at least the basic notions of due process and fundamental fairness, as well as our
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rules regarding ethical conduct by counsel. The tiny font, coupled with the lack of space
between paragraphs, made the Release almost impossible to read. The Release used the same
capitalized terms found in the Settlement Agreement, although there is no indication that the
person executing the Release was ever given a copy of, or access to, that agreement. There was
no definition or explanation of the capitalized terms contained in the Release. Fundamental
fairness required that the font be much more readable and that the terms be clearly defined.
¶ 86 Given the requirements set forth in Rules 1.7 and 1.8 of the Rules of Professional Conduct,
it is troubling that plaintiffs’ counsel failed to present sufficient information to demonstrate
that all settlement terms had been adequately disclosed to their clients and that any potential or
current conflicts of interest had been discussed with, and waived by, each individual
plaintiff-client prior to consenting to the settlement and executing the Release. Equally
troubling, the circuit court made no inquiry regarding these fundamental requirements. The
record suggests that the trial court placed its imprimatur on the Settlement Agreement without
considering whether the individual plaintiffs and claimants had sufficient information about
the settlement so as to give informed consent and whether these individuals had received
adequate representation. This inquiry is essential to the determination of whether there was a
legally valid settlement.
¶ 87 There is also the matter of the attorney fees. In evaluating the adequacy of plaintiffs’
counsel’s disclosures to their clients, the trial court has the authority to evaluate contingent fee
contracts to ensure that the lawyer is not collecting an unreasonable fee. See generally Ill. R.
Prof’l Conduct (2010) R. 1.5 (eff. Jan. 1, 2010); In re Doyle, 144 Ill. 2d 451, 463, 581 N.E.2d
669, 674 (1991). In this case, the record contains an isolated reference to a contingent fee
arrangement, but it does not provide any information regarding what fees plaintiffs’ counsel
would be paid as a result of this settlement. Plaintiffs’ counsel did not discuss the fee
arrangements during the good-faith hearings, and the information is not provided in the
Release. The Release simply provides an acknowledgment that “prior to any distribution of
settlement funds to me, expenses, costs and attorneys fees will be paid from the Trust to
PLAINTIFFS’ COUNSEL in the sum of a previously negotiated amount, which has been fully
disclosed to me by PLAINTIFFS’ COUNSEL.” Court scrutiny of contingency fees and costs is
particularly appropriate in this case, where the court is asked to decide whether a settlement is
a good-faith settlement under the Contribution Act. An independent evaluation allows the
court to consider whether a sufficient amount of the settlement proceeds is going to the
plaintiffs, as opposed to their lawyers, and whether plaintiffs’ counsel have inherent conflicts
of interest in acting as the fiduciaries while collecting fees from the funds in the Trust.
¶ 88 In sum, it appears that the settling parties achieved a global compromise, with no structural
assurance of fair and adequate representation and compensation for the diverse groups and
individuals affected. There is scant information in the record upon which to properly evaluate
the settlement and the method of apportionment. There are serious questions regarding
possible conflicts of interest and informed consent. The circumstances presented in this record
cast doubt on the legal validity of the terms set forth in the Settlement Agreement. After
reviewing this record, we find that the trial court lacked basic information from which to
determine whether the parties presented a legally valid, aggregate settlement.
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¶ 89 B. The Settlement Agreement and the Policies Underlying the Contribution Act
¶ 90 As noted above, the Contribution Act encourages the equitable apportionment of damages
among joint tortfeasors when one tortfeasor pays more than its pro rata share of common
liability. 740 ILCS 100/2(b) (West 2014); Guardianship of Babb, 162 Ill. 2d at 171. The
Contribution Act also ensures the equitable apportionment of damages between settling and
nonsettling tortfeasors by providing a right of setoff to the nonsettling tortfeasor. 740 ILCS
100/2(c) (West 2014); Guardianship of Babb, 162 Ill. 2d at 171. After reviewing the record, we
find that the settling parties failed to satisfy their burden to show that the settlement was
consistent with the equitable apportionment policy underlying the Contribution Act.
¶ 91 In considering whether a settlement has been made in good faith under the Contribution
Act, “[t]he amount of [the] settlement must be viewed in relation to the probability of recovery,
the defenses raised, and the settling party’s potential legal liability.” Johnson, 203 Ill. 2d at
137. Here, only the 2009 cases were on file and in the pleading stage at the time the proposed
settlement was reached in November 2014. At the time of the good-faith hearings, the trial
court had only the pleadings and written memoranda addressing the issue of good faith. There
is no indication that the trial court reviewed the Settlement Agreement, or had any information
justifying the allocation of the settlement funds among the plaintiffs, based upon their various
theories of recovery. During the good-faith proceedings, the settling parties provided little
additional information pertinent to the court’s obligation to consider the settlement’s impact on
equitable apportionment. The settling parties did not offer even an estimated amount of the
final settlement or any basis for the settlement proposed. They did not outline their respective
positions on any of the contested issues. They did not discuss the plaintiffs’ likelihood of
success or the defendants’ relative exposure at trial. After four years of mediation, this basic
information should have been readily available. Settlements do not occur in a vacuum. They
occur in the context of disputed issues of liability and damages involving questions of law and
fact. It is difficult to understand why basic information was not offered by the settling parties,
or requested by the court, during the good-faith hearings. In this case, the record contains no
basis or explanation for the settlement amounts, and the settling defendants’ respective
liabilities are unknown.
¶ 92 In addition, the settling parties failed to present any information establishing how the
additional settlement fund proceeds, if any, will be allocated among the individual plaintiffs.
This is significant because, under the Contribution Act, a good-faith settlement reduces the
recovery on any claim against a nonsettling tortfeasor to the extent of the amount in the release
or the sum actually paid. 740 ILCS 100/2(c) (West 2014). The right to a setoff reflects the
public policy of ensuring that a nonsettling party will not be required to pay more than its
pro rata share of shared liability. Lard v. AM/FM Ohio, Inc., 387 Ill. App. 3d 915, 926, 901
N.E.2d 1006, 1018 (2009). A nonsettling defendant may claim as a setoff any amount that the
plaintiff recovered in a prior settlement for damages arising from the same injury. Lard, 387
Ill. App. 3d at 926. Generally, the party who seeks the setoff has the burden of proving what
portion of a prior settlement was allocated or is attributable to the claim for which he is liable.
Lard, 387 Ill. App. 3d at 926. However, where a plaintiff fails to allocate the settlement, a
nonsettling defendant may be relieved of that burden of proof. Lard, 387 Ill. App. 3d at 926.
¶ 93 In this case, the trial court had no information concerning how the settlement proceeds
would be allocated among the plaintiffs and their claims. Further the trial court did not reserve
the issue of the reasonableness of future allocations of any proceeds of the additional
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settlement funds pending completion of the blood analysis and the extrapolation process.
Without some basic information regarding the allocation of the settlement funds, the trial court
could not properly evaluate the settlement in light of the equitable apportionment policy
underlying the Contribution Act.
¶ 94 III. CONCLUSION
¶ 95 After considering the totality of the circumstances surrounding this settlement, and the
unique facts in this case, we find that the settling parties failed to meet their burden to make a
preliminary showing that the settlement was legally valid and that the terms of the Settlement
Agreement satisfied the “equitable apportionment policy” underlying the Contribution Act. In
this case, the trial court should have examined the Settlement Agreement to determine whether
it was obtained with informed consent, and without internal conflicts of interests, before
considering whether the settling defendants were entitled to any relief under the Contribution
Act. Such scrutiny was necessary to reduce the potential for inequity and abuses that may arise
from an aggregate settlement. Therefore, the trial court’s determination that the Settlement
Agreement was entered in good faith was without foundation and, as such, was an abuse of
discretion. For those reasons, we hereby vacate the trial court’s good-faith orders and remand
these cases for further proceedings consistent with this opinion.
¶ 96 On remand, the settling parties must make a preliminary showing that the Settlement
Agreement is a legally valid agreement and that the settlement is consistent with the
Contribution Act’s policy favoring equitable apportionment of damages among joint
tortfeasors. As noted herein, the settling parties must provide some information concerning the
contested issues related to liability, damages, and defenses; the projected total sum of the
settlement; and the method of apportionment of settlement proceeds among the individual
plaintiffs. In considering the motions for good-faith findings, the trial court must thoroughly
review the Settlement Agreement and attached exhibits, the Trust Agreement, and the Release.
In addition, the trial court must consider whether plaintiffs’ counsel made full disclosures and
provided adequate representation to each plaintiff and whether each individual plaintiff was
fully informed of all material terms of the settlement. The court must also consider whether
provisions in the Settlement Agreement and the Trust Agreement present conflicts of interest
between counsel and plaintiffs and among plaintiffs and, if so, whether the plaintiffs were
adequately informed of the conflicts and waived them. The court must also determine whether
the plaintiffs were aware of the attorney fees and costs and how those fees and costs would be
assessed and paid. In essence, the trial court must consider whether the individual plaintiffs
received sufficient information to make an informed choice to settle their claims.
¶ 97 We note that when the trial court issued its order establishing the Qualified Settlement
Fund, the court retained continuing jurisdiction over the Fund, the Trustees, and the Fund
Administrator and directed the Trustees, with the assistance of the Fund Administrator, to
jointly prepare an accounting detailing all distributions from the Qualified Settlement Fund.
On remand, the trial court may consider, in its discretion, whether to require the Fund
Administrator to provide an accounting of funds distributed to date, whether to require
periodic status reports, and whether plaintiffs’ counsel, as the Trustees, should be required to
supply a final accounting of the apportionment and distribution of all of the settlement funds
for the court’s review.
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¶ 98 As is apparent from our discussion, there is much to be considered before the trial court
entertains any motion seeking relief under the Contribution Act. We recognize that this was a
difficult case, and our comments should not be viewed as a rebuke of the trial court’s action.
Rather, as the trial court indicated, the nature of the case and the circumstances of the
settlement were complex, and there was little precedent to provide guidance.
¶ 99 Additionally, our comments regarding the Settlement Agreement should not be construed
as a condemnation of mass actions or aggregate settlements. The ability to join claimants and
claims through procedural joinder is vital to the efficient use of judicial resources and the
equitable settlement of mass torts. That said, counsel involved in joined actions must act with
transparency so that nothing remains hidden from the court and their individual clients. We
note that unlike our state courts, the federal courts have a structure for dealing with nonclass
aggregate settlements. As noted herein, there are currently no Illinois statutes or rules, aside
from the Rules of Professional Conduct, to guide and inform practitioners and the courts in
addressing the unique issues presented by the aggregate settlement of mass torts. Mass tort
actions are becoming more common, and perhaps, based on the concerns raised in this case,
our supreme court will consider whether the implementation of additional rules regarding
good-faith proceedings in mass tort cases might be of benefit to our trial courts and
practitioners.
¶ 100 For the reasons stated, we vacate the findings and orders of good faith and remand this case
to the circuit court for further proceedings consistent with this opinion.
¶ 101 Orders vacated; remanded.
¶ 102 APPENDIX
¶ 103 Nos. 09-L-295, 09-L-309, 09-L-334, 09-L-342, 09-L-404, 09-L-445, 09-L-494, 09-L-508,
09-L-527, 09-L-546, 09-L-558, 09-L-571, 09-L-657, 09-L-659, 09-L-665, 09-L-666,
09-L-669, 09-L-670, 09-L-671, 09-L-672, 14-L-353, 14-L-354, 14-L-357, 14-L-358,
14-L-359, 14-L-363, 14-L-364, 14-L-365, 14-L-366, 14-L-367, 14-L-368, 14-L-369,
14-L-370, 14-L-371, 14-L-372, 14-L-373, 14-L-374, 14-L-375, 14-L-376, 14-L-377,
14-L-378, 14-L-379, 14-L-380, 14-L-381, 14-L-382, 14-L-383, 14-L-384, 14-L-385,
14-L-386, 14-L-387, 14-L-388, 14-L-389, 14-L-390, 14-L-391, 14-L-392, 14-L-393,
14-L-394, 14-L-395, 14-L-396, 14-L-397, 14-L-398, 14-L-399, 14-L-400, 14-L-401,
14-L-402, 14-L-403, 14-L-404, 14-L-405, 14-L-406, 14-L-407, 14-L-408, 14-L-409,
14-L-410, 14-L-411, 14-L-412, 14-L-413, 14-L-414, 14-L-415, 14-L-416, 14-L-417,
14-L-418, 14-L-419, 14-L-420, 14-L-421, 14-L-422, 14-L-423, 14-L-424, 14-L-425,
14-L-426, 14-L-427, 14-L-428, 14-L-429, 14-L-430, 14-L-431, 14-L-432, 14-L-433,
14-L-434, 14-L-435, 14-L-436, 14-L-437, 14-L-438, 14-L-439, 14-L-440, 14-L-441,
14-L-442, 14-L-443, 14-L-444, 14-L-445, 14-L-446, 14-L-447, 14-L-448, 14-L-449,
14-L-450, 14-L-451, 14-L-452, 14-L-453, 14-L-455, 14-L-456, 14-L-458, 14-L-459,
14-L-460, 14-L-461, 14-L-462, 14-L-463, 14-L-464, 14-L-465, 14-L-466, 14-L-467,
14-L-468, 14-L-480, 14-L-567 cons.
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