United States Court of Appeals

For the Eighth Circuit

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No. 18-2346

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Joshua Rawa, on behalf of himself and all others similarly situated; Elisabeth

Martin; Robert Ravencamp; Amy Ward; Cynthia Davies; Christopher Abbott;

Owen Olson; Jeannie A. Gilchrist; Zachary Sholar; Matthew Myers; John W.

Beard, Jr.; Michael Overstreet

lllllllllllllllllllllPlaintiffs - Appellees

v.

Monsanto Company

lllllllllllllllllllllDefendant - Appellee

v.

James Migliaccio

lllllllllllllllllllllObjector - Appellant

Patrick Sweeney

lllllllllllllllllllllObjector

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: April 16, 2019

Filed: August 20, 2019

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Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

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SMITH, Chief Judge.

Appellant-objectorJames Migliaccio was a member of a California class action

against Monsanto Company that alleged the company used misleading labeling on its

Roundup concentrate herbicide. Following certification of the California class in the

Central District of California, class counsel filed the present action in the Eastern

District of Missouri on behalf of a putative class of consumers from the other 49

states. The parties reached a nationwide settlement agreement. The Central District

of California transferred the California action to Missouri, where Monsanto resides,

in order to consolidate the cases and seek preliminary approval of the nationwide

settlement. The federal district court1in Missouri granted preliminary approval of the

settlement and its notice plan. After the notice period ended, the plaintiffs filed for

final approval of the settlement. Migliaccio objected to certification of the nationwide

class and to the fairness of the settlement on several grounds. The district court

overruled his objection and granted final approval. Upon review, we conclude that

the class members were adequately represented and that the settlement was

reasonable, fair, and adequate. We therefore affirm.

I. Background

Monsanto manufactures andmarketsRoundup, a well-known herbicide,in both

concentrate and ready-to-use forms. The companymarketed its concentrate products,

which require dilution before using, as a better value for consumers. In this class

action lawsuit, plaintiff consumers alleged that Monsanto misled them about the

concentration strength of these products through its product labeling. In doing so,

plaintiffs claim, Monsanto implicitly misrepresented their value—by nearly 50

1The Honorable Audrey G. Fleissig, United States District Judge for the

Eastern District of Missouri.

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percent on some units. As an example, one product’s label advertised that it could be

used to make up to ten gallons. But consumers discovered that, when diluted

according to package instructions, the product only made just over five gallons. 

Class counsel originally filed the suit in the Central District of California on

behalf of a nationwide class. The court, however, eventually certified only a

California class. Class counsel subsequently filed a complaint in Missouri,

Monsanto’s principal location, on behalf of a putative class of consumers from the

other 49 states. The complaint alleged violations of both federal and Missouri laws.

The parties negotiated and reached a tentative nationwide settlement. Other similar

actions had been filed in courts across the country, and class counsel reached out to

the plaintiffs in each case to advise them of the settlement’s terms. Each agreed to

support the settlement in exchange for class counsel’s promise to seek incentive

awards and reimbursement for costs and fees. 

Class counsel moved the Central District of California to transfer the action to

the Eastern District of Missouri, seeking consolidation with the 49-state class action.

The court granted the motion. 

The plaintiff class then moved the federal district court in the Eastern District

of Missouri for preliminary approval of the nationwide settlement, which covered

over four million retail units representing about $164 million in retail sales. The

motion set forth a notice plan, designed by the class administrator, which estimated

a class size of approximately 3.5 million members who bought the products during

the relevant time period. The notice plan targeted over 20 million people who had

used weed killer productsin the past. The plan assumed that the class members would

be included among that number and receive adequate notice of the settlement. The

court granted preliminary approval of the settlement and approved the proposed

notice plan.

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According to the terms of the settlement, Monsanto would establish a $21.5

million non-reversionaryCommon Fund for claims, notice, and administration costs;

incentive awards; and attorneys’ fees. Class counsel could apply for fees up to onethird of the Common Fund for their services. Any remaining unclaimed funds would

be donated to cy pres recipients.

2

After the notice period ended and the claims were processed, the plaintiffs

moved for final approval of the settlement and for attorneys’ fees. The class

administrator testified that it had validated a total of 70,360 claims, valued at

$10,732,832. Since the claims correspond to a 50 percent refund for the consumers’

affected purchases, the class administrator testified that the value of the claims

represented over $21 million in retailsales. Because Monsanto made $164 million in

retail sales for the relevant period, this produced a claims rate of 13 percent. Class

counsel sought one-third of the Common Fund ($7,166,666) for attorneys’ fees.

Migliaccio filed an objection opposing class certification and final approval of

the settlement. He asserted that consolidation of the California class with the

nationwide class diluted the California class members’ claims, creating a conflict of

interest for the nationwide class counsel thatrendered their representation inadequate.

Prior to transfer and consolidation of the California- and Missouri-based classes,

2Cy pres (from the expression cy pres comme possible, meaning “as near as

possible”) is an equitable doctrine with origins in trust and estates law. In re Airline

Ticket Comm’n Antitrust Litig., 307 F.3d 679, 682 (8th Cir. 2002). 

In the class action context, it may be appropriate . . . to use cy pres

principles to distribute unclaimed funds. In such a case, the unclaimed

funds should be distributed for a purpose as near as possible to the

legitimate objectives underlying the lawsuit, the interests of class

members, and the interests of those similarly situated.

Id. 

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counsel consulted with a legal ethics expert to address potential conflict-of-interest

concerns. Based on the expert’s advice, counsel represented to the court that no

conflict existed. Migliaccio challenged the fairness of both the proposed settlement

terms and the attorneys’ fee award. He demanded that the nationwide class counsel

produce the expert ethics opinion sought before the transfer, and he urged the court

to perform a lodestar cross-check on the attorneys’ fee award. 

The court asked class counsel to submit detailed billing records and rates to

support the motion for attorneys’ fees and then held a two-hour fairness hearing, in

which Migliaccio participated. Following the hearing, the court entered an order

granting final certification to the nationwide class, final approval of the settlement,

and attorneys’ fees totaling 28 percent of the Common Fund. 

II. Discussion

Migliaccio raisesfour issues on appeal. First, he challengesthe final approval,

arguing that the district court based its fairness analysis on erroneous facts. Second,

he avers the court failed to uncover ethical conflicts that made class certification

inappropriate. Third, he contends the award of attorneys’ fees is too high. Fourth, he

argues the cy pres distribution of funds remaining in the Common Fund once all

expenses are deducted is inappropriate and should instead be returned to class

members. In response, the class action plaintiffs argue that Migliaccio lacksstanding

to bring this appeal because he could not receive any benefit from a favorable

outcome.

A. Standing

Before reaching the merits of his arguments, we first address the plaintiffs’

assertion that Migliaccio lacks standing to bring these claims. They note that “class

members lack standing to appeal aspects of a class action settlement that do not

adversely affect their own interests.” Huyer v. Van de Voorde, 847 F.3d 983, 987 (8th

Cir. 2017). They assert that Migliaccio lacks standing to challenge the fairness of a

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settlement thatfully compensates himfor his claimed out-of-pocket losses. Similarly,

they claimhe lacks standing to appeal the award of attorneys’fees because, according

to the terms of the settlement agreement, any fees deemed excessive would be

returned to the Common Fund and distributed to cy pres beneficiaries rather than to

class members.

“To show standing under Article III of the U.S. Constitution, a plaintiff must

demonstrate (1) injury in fact, (2) a causal connection between that injury and the

challenged conduct, and (3) the likelihood that a favorable decision by the court will

redressthe alleged injury.” Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir.

2013) (internal quotation omitted). “The standing Article III requires must be met by

persons seeking appellate review, just as it must be met by persons appearing in

courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64

(1997). Migliaccio asserts the district court relied on erroneous factual findings in

determining the settlement was fair, reasonable, and adequate. He also contends that

he would have received a more favorable outcome under California state law had the

classes not been consolidated. His challenge to the settlement’s distribution of funds,

if successful, would yield a higher recovery for class members. These allegations

support his having standing to dispute the settlement and class certification. See Keil

v. Lopez, 862 F.3d 685, 699 (8th Cir. 2017) (concluding an objector had standing

because “if the settlement agreement either adjusted recovery to account for the

relative strength of all fifty states’ consumer protection laws or simply provided

greater recovery for class members . . . , [the objector] presumably would receive

more money”).

We need not addressstanding with respect to a review of the fee award because

“the reasonableness of the attorneys’ fees is within the overall supervisory review of

this court.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 127 n.13 (8th Cir.

1975). Migliaccio argues that any reduction in attorneys’ fees should inure to the

benefit of class members rather than defaulting to the terms of the settlement, which

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provide that net funds remaining in the Common Fund will be distributed to cy pres

recipients. Because he made this argument below, we may address whether the

district court erred by refusing his request. 

B. Substantive Claims

1. Settlement Approval

We review a district court’s order approving a class action settlement for an

abuse of discretion. Marshall v. Nat’l Football League, 787 F.3d 502, 508 (8th Cir.

2015). In so doing, “we ask whether the district court considered all relevant factors,

whether it was significantly influenced by an irrelevant factor, and whether in

weighing the factors it committed a clear error of judgment.” Id. (cleaned up).

Migliaccio asserts that the nationwide class consists of approximately 3.5

million members. He derives this figure from estimates made prior to the class notice

period. In designing a notice plan, the class administrator used market research data

to “estimat[e] that the class size [was] approximately 3.5 million persons and that a

target audience of 20.08 million persons who have used weed killer products

include[d] the members of the class.” Mem. in Support of Consent Mot. for Prelim.

Approval, Attach. 3 at 4, Rawa v. Monsanto Co., No. 4:17-cv-01252-AGF (E.D. Mo.

Oct. 4, 2017), ECF No. 32-3. The district court did not address this figure in its final

approval analysis. Instead, it adopted the plaintiffs’ reasoning following the claims

period: “[B]ecause 13% of the product was claimed by 70,360 members, the evidence

suggests the Class contains about 541,000 members.” Pls.’ Reply in Supp. of Mot.

andResp. to Obj. at 1 n.2, Rawa v. MonsantoCo., No. 4:17-cv-01252-AGF (E.D. Mo.

Apr. 3, 2018), ECF No. 49. The district court conducted its fairness analysis using

these figures. The district court commended the settlement’s full compensatory

recovery for claimants and emphasized the considerably high claims rate. See Keil,

862 F.3d at 697 (observing “that a claim rate as low as 3 percent is hardly unusual in

consumer class actions and does not suggest unfairness”). 

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“The single most important factor in determining whether a settlement is fair,

reasonable, and adequate is a balancing of the strength of the plaintiff’s case against

the terms of the settlement.” Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988).

Migliaccio contends that the court’s use of “grossly inaccurate figures” led it to

misjudge the overall value of the settlement. Appellant’s Br. at 13. However,

Migliaccio fails to show that these figures are flawed and is unconvincing that the

court should have based its analysis on pre-notice market research estimates rather

than a simple, evidence-based calculation. So, we hold the district court did not abuse

its discretion in granting final approval of the settlement.

2. Class Certification

We review the district court’s decision to certify the settlement class for an

abuse of discretion. In re Target Corp. Customer Data Sec. Breach Litig., 892 F.3d

968, 973 (8th Cir. 2018).

Migliaccio argues that class counsel became inadequate due to conflicts that

arose from the transfer and consolidation of the California class. He contends the

transfer and consolidation ultimately “diluted California class members’ claims.”

Appellant’s Br. at 4. Migliaccio devotes much of his argument towards showing that

the California class members received much less per member under the nationwide

settlement when compared to a hypothetical recovery that they would have received

absent consolidation.

3 He also seeks disclosure of the ethics opinion that class counsel

sought prior to transfer. He does not, however, name a specific potential conflict that

concerns him.

3Migliaccio’s calculations are premised on a number of estimates: the prenotice estimated nationwide class size of 3.5 million members; a similarly estimated

California classsize; and an assumption that the California class would “achieve[]the

same 30% recovery of estimated damages as the $21.5 million settlement represents

of the $70.5 million estimated damages for the nationwide class.” Appellant’s Br. at

21.

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Any California class member who submitted a valid claim recovered at least

100 percent of his or her alleged out-of-pocket damages under the nationwide

settlement. The settlement’s per-unit payment to claimants is higher than what

plaintiffs sought through the damages model in the abandoned California case. Even

if punitive damages are available to successful litigants under California consumer

protection laws, “the outcome of the litigation was far from certain.” Keil, 862 F.3d

at 696. A nationwide settlement need not account for differences in state laws. Id. at

700. Moreover, “a settlement is a product of compromise and the fact that a

settlement provides only a portion of the potential recovery does not make such

settlement unfair, unreasonable orinadequate.” Id. at 696 (internal quotation omitted).

On this record, Migliaccio has failed to show how the California class members’

claims were diluted.

He also maintainsthat the transfer and consolidation created a conflictfor class

counsel. Though he has not asserted precisely what that conflict is, he says “class

counsel recognized the conflict,” as evidenced by their decision to consult with an

ethics expert before asking the California court to transfer the case. Appellant’s Br.

at 22. The district court adequately addressed his concerns at the fairness hearing:

[T]he fact that an attorney consults someone to make sure that they are

on solid ground is not an admission of a conflict. That is a lawyer taking

prudent steps when they have an obligation to a class. . . . I take that as

a sign of responsible behavior by class counsel and not some admission

that a conflict exists.

Tr. of Fairness Hr’g at 58, Rawa v. Monsanto Co., No. 4:17-cv-01252-AGF (E.D.

Mo. May 14, 2018), ECF No. 57.

Migliaccio has failed to show how the California class members have been

disadvantaged by their inclusion as members of the nationwide class. We find no

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abuse of discretion in the district court’s refusal to order production of the expert

ethics opinion.

3. Attorneys’ Fee Award

We review the district court’s award of attorneys’ fees for an abuse of

discretion. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1156 (8th Cir. 1999). The

district court has discretion to use either a lodestar or percentage-of-the-fund method

in determining an appropriate recovery, “and the ultimate reasonableness of the award

is evaluated by considering relevant factors from the twelve factors listed in Johnson

v. Ga. Highway Express, Inc., 488 F.2d 714, 719–20 (5th Cir. 1974).” In re Target

Corp., 892 F.3d at 977 (cleaned up). The district court hasthe burden of “provid[ing]

a concise but clear explanation of its reasons for the fee award.” Id. (internal

quotation omitted). “We give substantial deference to a district court’s

determinations, in light of the district court’s superior understanding of the

litigation.” In re Genetically Modified Rice Litig., 764 F.3d 864, 871 (8th Cir. 2014).

Class counsel requested a fee award totaling 33 percent of the Common Fund.

After considering the Johnson factors, the parties’ arguments, the attorney billing

records, and the relevant case law, the district court determined that an award of 28

percent of the Common Fund was appropriate. The court acknowledged that “[t]he

corresponding lodestar multiplier of 5.3 is still quite high compared to similar cases

in this circuit,” but it concluded it was not unreasonable in light of the results

obtained. Rawa v. Monsanto Co., No. 4:17-cv-012520-AGF, 2018 WL 2389040, at

*9 (E.D. Mo. May 25, 2018). The district court decided that a generous award was

warranted based on “the novelty and uncertainty of the claims, the skill required by

counsel to perform the work properly, especially on a nationwide basis, time limits

imposed in the [California case], the experience and ability of the attorneys, and

significantly, the large amount involved and excellent result achieved.” Id. The court

also cited class counsel’s general efficiency as well as the effectiveness of the notice

process to justify the award.

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Migliaccio uses the same estimated class size and claims rate figures again to

dispute the quality of the settlement’s terms. He takes issue with the district court’s

weighing of the Johnson factors. He also disputes certain hours in the billing records

submitted by class counsel.

The fee award in this case isin line with other awardsin this circuit. See Huyer

v. Buckley, 849 F.3d 395, 399 (8th Cir. 2017) (“Indeed, courts have frequently

awarded attorneys’ fees ranging up to 36% in class actions.”). And while the 5.3

lodestar multiplier is high, it does not exceed the bounds of reasonableness. See, e.g.,

In re Charter Commc’ns, Inc., Sec. Litig., No. 4:02-cv-1186-CAS, 2005 WL

4045741, at *18 (E.D. Mo. Jun. 30, 2005) (finding reasonable a 5.61 cross-check

multiplier and noting that “[t]o overly emphasize the amount of hours spent on a

contingency fee case would penalize counsel for obtaining an early settlement and

would distort the value of the attorneys’ services” (internal quotation omitted)). The

district court adequately explained the reasons for its decision, and the result is not

obviously unreasonable in light of our prior case law. 

Migliaccio presented his billing record disputes to the district court at the

fairness hearing.In its order, the district courtstated that it had taken both the parties’

arguments and the submitted billing records under “careful consideration” in

determining the fee award. Rawa, 2018 WL 2389040, at *9. We find that the district

court “fulfilled its responsibility of providing a concise but clear explanation of its

reasons for the fee award.” In re Genetically Modified Rice Litig., 764 F.3d at 872

(internal quotation omitted). Migliaccio has failed to show that the court’s decision

amounted to an abuse of discretion.

4. Cy Pres Distribution

Class counsel requested a fee award of 33 percent of the Common Fund, or

$7,166,666. The district court instead awarded 28 percent, or $6,020,000. Migliaccio

argues the difference between these amounts should be distributed to class members

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instead of to cy pres beneficiaries as contemplated by the terms of the settlement

agreement. Essentially, he requests that the district court redraft the terms of the

agreement to allow for an alternative method of fund distribution for the amount in

question.

District courts do not rewrite settlement agreements. “[T]he power to approve

or reject a settlement negotiated by the parties before trial does not authorize the court

to require the parties to accept a settlement to which they have not agreed.” Evans v.

Jeff D., 475 U.S. 717, 726 (1986). Contrary to Migliaccio’s characterizations on

appeal, the court did not order the cy pres distribution of the difference in fees—the

terms of the settlement agreement did. “[W]hile the settlement agreement must gain

the approval of the district judge, once approved its terms must be followed by the

court and the parties alike. . . . The terms of the settlement agreement are always to

be given controlling effect.” Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 475–76

(5th Cir. 2011) (footnote omitted). Accordingly, we find no error.

III. Conclusion

We affirm the judgment of the district court.

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