                                          2018 IL App (5th) 160161
            NOTICE

 Decision filed 04/18/18. The

 text of this decision may be                   NO. 5-16-0161 

 changed or corrected prior to

 the filing of a Peti ion for
 Rehearing or the disposition of
                                                    IN THE
 the same.
                                    APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT
________________________________________________________________________

MARTHA CUSTER, et al.,                           )  Appeal from the
                                                 )  Circuit Court of
        Plaintiffs-Appellees,                    )  St. Clair County.
                                                 )
v.                                               )  No. 09-L-295 *
                                                 )
CERRO FLOW 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                               )  Honorable

                                                 )  Vincent J. Lopinot,
(Cerro Flow Products, Inc., Defendant-Appellant; )  Judge, presiding
Pharmacia Corporation; Pharmacia & Upjohn        )
Company LLC; Solutia, Inc.; Monsanto Company; )
Pfizer, Inc.; Monsanto Ag Products LLC; and      )  Honorable
Eastman Chemical Company, Defendants-            )  Andrew J. Gleeson,
Appellees).                                      )  Judge, presiding.
________________________________________________________________________

         JUSTICE CATES delivered the judgment of the court, with opinion.

         Justices Chapman ** and Moore concurred in the judgment and opinion.


                                                  OPINION



         *
             A full listing of trial court case numbers is set forth in the appendix.
         **
       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.
                                                       1

¶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).

¶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.




                                                   2

¶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,


                                                   3

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.

¶ 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


                                                 4

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


                                                 5

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 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


                                                 6

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.”




                                                7

¶ 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 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


                                                 8

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


                                                9

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 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




                                               10 

       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


                                                 11 

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.

¶ 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


                                                 12 

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




                                                13 

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 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:




                                                 14 

              “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


                                                15 

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 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




                                                  16 

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


                                                17 

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 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.”




                                                 18 

¶ 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


                                                 19 

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 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


                                                  20 

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.


                                                 21 

¶ 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 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.




                                                22 

¶ 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


                                                 23 

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

staggering sum in excess of $300 million to nothing. The funds, if any, to be deposited into

Additional Settlement Fund #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


                                               24 

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 No. 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

No. 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


                                               25 

zero, it is not possible to calculate the amount that might be paid into Additional Settlement 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).


                                                26 

¶ 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 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


                                                27 

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


                                                  28 

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.

¶ 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


                                                 29 

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


                                                30 

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 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.


                                                31 

¶ 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.


                                                 32 

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 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


                                                  33 

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,


                                                 34 

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 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


                                                 35 

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


                                                 36 

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 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


                                                37 

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.




                                                 38 

¶ 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

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




                                                 39 

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


                                                40 

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.

¶ 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


                                                 41 

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.


                                                42 

¶ 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 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

                                                43 

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.

¶ 98    As is apparent from our discussion, there is much to be considered before the trial court


                                                44 

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.




                                                 45 

                                       APPENDIX



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
                                                     2018 IL App (5th) 160161
                                                           NO. 5-16-0161
                                                               IN THE
                                               APPELLATE COURT OF ILLINOIS
                                                         FIFTH DISTRICT
__________________________________________________________________________________________________

MARTHA CUSTER, et al.,                               )       Appeal from the
                                                     )       Circuit Court of
          Plaintiffs-Appellees,                      )       St. Clair County.
                                                     )
v.	                                                  )       No. 09-L-295 ***
                                                     )
CERRO FLOW 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                                 )       Honorable

                                                     )       Vincent J. Lopinot,
(Cerro Flow Products, Inc., Defendant-Appellant;     )       Judge, presiding
Pharmacia Corporation; Pharmacia & Upjohn            )
Company LLC; Solutia, Inc.; Monsanto Company;        )       Honorable
Pfizer, Inc.; Monsanto Ag Products LLC; and          )       Andrew J. Gleeson,
Eastman Chemical Company, Defendants-Appellees).     )       Judge, presiding.
__________________________________________________________________________________________________

Opinion Filed:	               April 18, 2018
__________________________________________________________________________________________________

Justices:	             Honorable Judy L. Cates, J.
                       Honorable Melissa A. Chapman, J., and
                       Honorable James R. Moore, J.,
                       Concur
__________________________________________________________________________________________________

Attorneys      Stephen L. Agin, 909 W. Ohio Street, Unit 9, Chicago, IL 60642; Mark A. Kircher, Quarles & Brady,
for            LLP, 411 E. Wisconsin Ave., Suite 2350, Milwaukee, WI 53202-4426; Lindsey T. Millman, E.
Appellant      King Poor IV, Anthony P. Steinike, Quarles & Brady, LLP, 300 N. LaSalle Street, Suite 4000,
               Chicago, IL 60654; Thomas R. Ysursa, Becker, Hoerner, Thompson & Ysursa, P.C., 5111 W.
               Main Street, Belleville, IL 62226
__________________________________________________________________________________________________

Attorneys             Clyde L. Kuehn, 120 W. Main Street, Suite 122, Belleville, IL 62220 (attorney for Martha Custer,
for                   et al.);
Appellees	            Bruce N. Cook, Bernard J. Ysursa, Cook, Ysursa, Bartholomew, Brauer & Shevlin, Ltd., 12 W.
                      Lincoln Street, Belleville, IL 62220-2085; Charles R. Hobbs II, Patricia L. Silva, Lathrop & Gage,
                      LLP, Pierre Laclede Center, 7701 Forsyth Blvd., Suite 500, Clayton, MO 63105; Joseph G. Nassif,
                      Nassif Law Firm, 10701 Kingsbridge Estates Dr., Creve Coeur, MO 63141; Robert J. Sprague,
                      Sprague & Urban, 26 E. Washington Street, Belleville, IL 62220 (attorneys for Eastman Chemical Co.;
                      Monsanto AG Products LLC; Monsanto Co.; Pfizer, Inc.; Pharmacia & Upjohn Co. LLC; Pharmacia
                      Corp.; Solutia, Inc.)

         ***
               A full listing of trial court case numbers is set forth in the appendix.
