PENNSYLVANIA RECORD

Lawyers who represented plaintiffs in the Imprelis products liability

litigation that had been playing out at the federal court in Philadelphia will soon receive $6.5 million in fees after the judge presiding over the multidistrict litigation gave final approval to the proposed class settlement.

The move by U.S. District Judge Gene E.K. Pratter, who sits in the Eastern District of Pennsylvania, came eight months after she preliminarily approved of the settlement.

The MDL included consolidated claims brought by users of DuPont’s herbicide Imprelis, which was introduced in 2010 as an herbicide designed to kill selectively unwanted weeds without harming non-targeted vegetation, but supposedly ended up damaging consumers’ trees.

The settlement calls for class members to receive a warranty on replacement trees as well as compensation toward the removal of damaged trees.

In addition to the $6.5 million going toward plaintiffs’ attorneys and costs in the amount of $500,000, the settlement also includes incentive awards for class representatives in the amount of $63,000, according to Pratter’s Oct. 17 memorandum and order.

According to Pratter’s ruling, 22 individual property owners will receive incentive awards of $1,500, and 12 multi-residential or commercial property owners, golf courses and lawn-care operators will receive incentive awards in the amount of $2,500.

Pratter noted that since she preliminarily approved of the class settlement earlier this year, the parties engaged in a wide-ranging notice program, leading to the filing of more than 37,000 claims, 581 opt outs, and 24 timely objections.

Consumers began filing complaints over Imprelis damage after widespread reports of non-targeted vegetation damage led to an investigation by the U.S. Environmental Protection Agency.

The EPA ultimately issued an order preventing DuPont from selling Imprelis, the court record shows.

DuPont subsequently began its own claim resolution process to compensate those who alleged damage due to Imprelis use, but plaintiffs continued to pursue their claims through litigation.

The litigation, which contained counts including consumer fraud/protection act violations, breach of warranty, negligence, and products liability, was eventually approved as an MDL by the U.S. Judicial Panel on Multidistrict Litigation.

As part of the settlement, DuPont also agreed to remove damaged trees or provide compensation for their removal under specified circumstances.

DuPont will also pay class members tree care and maintenance compensation as well as additional payments for incidental damages in an amount equal to 15 percent of the total value of the other payments and services provided to class members under the settlement, according to Pratter’s memorandum.

The judge wrote that should class members disagree with the settlement amount offered, they could appeal the offer to a panel of arborists.

Property owner class members who sell their property before executing a claims resolution agreement will only be entitled to the costs of tree removal incurred plus 15 percent of that amount in incidental damages, although the new homeowners who purchase the damaged property would be entitled to the full range of benefits offered as part of the settlement, Pratter wrote.

The settlement fund doesn’t have a cap on the number of claims or dollar amount that may be spent on class members, the ruling states.

The ruling states that the $6.5 million in lawyers’ fees will come directly from DuPont, and not be deducted from the settlement fund or from any other money earmarked for class members.

Pratter noted that DuPont has already begun compensating class members, with the manufacturer having paid out $377,706,351.64 to 24,524 claimants thus far.

In her memorandum, Pratter called the settlement “fair, reasonable, and adequate."

Court records show that there are more than 50 plaintiffs’ firms who worked on the Imprelis litigation, and who are expected to share in the distribution of attorneys’ fees.

Those who stand to collect some of the highest dollar amounts in connection with the Imprelis MDL include, but are not limited to, the following law firms: Labaton Sucharow; Lieff, Cabraser, Heimann & Bernstein; Weinstein Kitchenoff & Asher; Wolf Haldenstein Adler Freeman & Herz; Chimicles & Tikellis; Climaco, Wilcox, Peca, Tarantino & Garofoli; Starr Austen & Miller; Wilentz, Goldman & Spitzer; and Zimmerman Reed.