Going Meta: A Class of Class Action Lawyers in the GMO Rice MDL
In a very meta turn, Riceland Foods, Inc. found itself on the receiving end of a class action composed of class action firms and plaintiffs from the GMO Rice MDL overseen by Judge Catherine D. Perry of the USDC of the Eastern District of Missouri. Riceland had been a co-defendant along with defendant Bayer in that litigation and had then cross-claimed Bayer and settled for $ 92 million. Following the District Court’s orders awarding common benefit expenses and fees, three law firms that had incurred legal fees and expenses while performing class benefit work sought to certify a class representing not only other law firms but also clients who had paid for common benefit services and expenses. The proposed class brought claims of unjust enrichment and quantum meruit against Riceland on the basis that Riceland had benefitted from the putative class’s common benefit work in obtaining a judgment against Bayer, and sought ten per-cent of Riceland’s gross recovery against Bayer.
The District Court certified a 23(b) class in a March 19 Memorandum and Order. Before delving into the 23(b) requirements, the District Court performed a limited choice of law analysis to determine which state’s laws would govern the unjust enrichment and quantum meruit claims of the multi-state putative class. Using Missouri’s “Significant Relationship Test,” the District Court found that Missouri had the most significant relationship to the unjust enrichment claim and the quantum meruit claim, primarily because the claims arose from an MDL venued in Missouri. Other important contacts, such as where a benefit was conferred or received, or the location of the parties, were dismissed out of hand as either of “little significance” or “too taxing” to determine individually. This begs the question of why such contacts would be disregarded rather than considered as creating individualized choice of law issues potentially compromising the superiority or manageability of a (b)(3) class, as well as the wisdom of basing choice of law considerations of happenstance as variable as the predilection of the JPML.
The District Court also concluded that common questions of law and fact predominated over individual ones, and rejected Riceland’s assertion that each plaintiff must first identify each attorney that created each piece of work product utilized by Riceland in its cross-claim against Bayer and then identify which particular class member paid for each piece of work in order to determine at whose expense Riceland was unjustly enriched or which party conferred a benefit on Riceland. The District Court specifically distinguished the facts of this case from prior cases denying the certification of such claims on the basis that because the putative class members undertook to “pool their resources” in the MDL as part of a “collective effort,” they need not show which client or counsel paid for specific items, only that the class jointly incurred expenses to provide a benefit on Riceland. This is an interesting distinction, and it will be instructive to see if the members of the class agree that they all jointly agreed to pool their efforts regardless of which client or counsel undertook those efforts when it comes time to divide the common benefit pie amongst them.
Hopefully the parties can agree on how to allocate any common benefit fees and expenses from this class action so that we won’t need a class action to recover fees and expenses from a class action to recover fees and expenses from an MDL.