Tuesday, September 16, 2008
MEA CULPA:
I have not been faithful in the frequency of my updates recently. I do promise, however, that we have been working diligently on your cases. Second confession, and I do know better, my initial estimate as to when allocation letters would go out was too optimistic. My apologies to all.
SO WHAT HAVE WE BEEN DOING?
1. Status of Settlement:
It involved a significant amount of work, but we have completed a Memorandum of Understanding ("MOU") which is a document setting forth all of the important terms of the settlement. The MOU has been signed by us as your counsel as well as legal counsel for ConAgra. We are in the process of setting up a trust account specifically created for this settlement. We expect that ConAgra will fund the settlement fund at the appropriate time, shortly. Draft proposed notification letters have been circulated for comment and a final spreadsheet of clients who may be subject to the settlement has been completed and provided to ConAgra.
I will give a more realistic estimate and predict that allocation letters will go out in approximately 10 to 12 weeks. These letters, I believe on present knowledge, will be postmarked from Houston from an allotment specialist business known as LitServe. We have worked with LitServe on a number of large cases before and they are reasonable and experts in the field. The allocations will be approved, and appeals heard, by the Honorable Christopher Skelley, a retired Judge headquartered in Phoenix. In fact, this update is being written during a flight to Phoenix this date where my agenda includes meetings with your other lawyer, David Karnas, on these cases. Judge Skelley has been involved in your case earlier as our mediator, so he has a strong knowledge of the issues we faced and the damages we allege were suffered as a result of the Peter Pan adulteration.
2. The MDL:
A few weeks ago, Judge Thrash DENIED all motions for class certification or class issue certification. The Court's Order has not been appealed. That is, the MDL failed in its attempts to have this case certified as a class action. Note that although your lawyers were appointed to positions of importance on the MDL Committee, we did not participate in any class certification attempt. In fact, we donated our science and a client to the MDL process, but otherwise took little part in the MDL process, and did not bill any of our time or expenses to the MDL.
What does this mean to you?
First, it re-enforces the fact that you were very astute in your choice of lawyers. Recall that we are the only group to settle non-permanent injury cases in such a significant number. With class certification denied, ConAgra no longer has this threat hanging over them, providing them a compelling reason to settle with any other group. It may happen at some time in the future for some other group, but I doubt the settlement terms will be as favorable.
Secondly, without yet knowing what the allocations will be for any particular client, but knowing the global settlement sum and believing it fair, I urge you to accept your allotment as reasonable. The reason is, if a certain percentage number of clients refuse to participate, the settlement could fall through. ConAgra has this option pursuant to a settlement clause known as a "blow up" provision. If this occurs, ConAgra may never again present such favorable terms for this group. We arrived at this stage by our hard work directly out of the starting gate. We forged a strong working relationship with ConAgra's counsel and invested heavily in your cases, both in terms of hours, travel and finances. If this settlement falls apart for some reason, we may have trouble in the future ever seeing favorable terms again.
3. Trouble Brewing:
The MDL lawyers have filed a motion in Federal Court in Atlanta asking that your recovery (your portion of the settlement, or your allotment) be taxed 4% to cover their costs.
This is unbelievable and extremely unfair given all that we have given to the MDL in terms of work and science, asking NOTHING in return, and not having benefited in the least from the MDL. They seek 4% of your money in addition to the costs you have incurred in developing your own cases for settlement.
I have had numerous conversations with other MDL executive lawyers imploring
them to exempt my clients. So far they have resisted the idea. The
deadline is Friday. If they do not contact me with an agreement not to tax
your cases at all, then we will file a Brief in Opposition, arguing first to
the Court that absolutely no common benefit was in any fashion achieved by
the MDL. Do you recall an earlier update about the rooms of associate
attorneys they had scouring documents? Notice that we settled your cases
fairly and in good time without having reviewed a single document. The case
was built on epidemiologic principles and good lawyering. Not from
nonsensical attempts to control federal litigation and amass hours to bill
against a future fee. No common benefit was achieved and class certification on all levels, including the consumer class, failed. If the
Judge agrees that no common benefit was achieved, then the assessment should
fail as you would be paying 4% of your recovery for nothing in return. I
can tell you again, nothing the MDL did in any manner assisted in the
settlement of your cases. Your cases settled as the sole result of the work
performed by David Karnas and Roger W. Orlando.
In addition, in the alternative, I intend to argue that given that you already bore significant expenses in pursuing your cases, a 4% assessment on top of this would be unfair.
If I do not receive word from the MDL powers-that-be by Thursday, our Brief
in Opposition will be filed on Friday.
PERMANENT INJURY CASES:
I have not forgotten about you! Two things of importance to tell you.
First, as part of the settlement of the non-permanent injury cases, we reached an agreement with ConAgra to enter into a Tolling Agreement on your cases which will toll - or place on hold - the applicable statute of limitations period.
Secondly, we nearly have worked out a schedule and agenda of meetings in
Omaha to present your cases for mediation and potential settlement. Without
the limitations period hanging over our heads, we do not face the pressure
of having to file a lawsuit before we have the opportunity to attempt the
amicable resolution of your case directly with ConAgra. Additionally, this
saves you effort (your effort, not mine) and the costs associated with
litigation if we are able to settle your case. We will not settle your case
without your express permission to do so for an amount you agree upon in
advance and will involve you in the process when the time comes.
I hereby promise to resume more regular updates!!!
Roger
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