Case 2:14-md-02591-JWL-JPO Document 4603 Filed 06/04/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`IN RE: SYNGENTA AG MIR 162
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`CORN LITIGATION,
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`This Document Relates to All Cases Except:
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`Heartland Corn Prods. v. Syngenta
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`Seeds, LLC, et al., No. 20-2168
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`_______________________________________)
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`MDL No. 2591
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`Case No. 14-md-2591-JWL
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`MEMORANDUM AND ORDER
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`This matter arising from multi-district litigation (MDL) comes before the Court for
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`review of the special master’s Report and Recommendation (R&R) (Doc. #4596)
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`concerning attorney fee awards from the IRPA pool previously established by the Court.
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`The Court has received objections from two groups of plaintiffs’ attorneys: attorneys
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`associated with the Toups and Coffman firms (collectively “Toups”) (Doc. # 4598); and
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`the Shields, Paul Byrd, and Hossley-Embry firms (collectively “Shields”) (Doc. # 4599).
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`As more fully set forth below, the Court overrules the objections, adopts the R&R in its
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`entirety, and awards attorney fees in accordance with the R&R and its Exhibit 1.1
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`1 All pending attorney fee award petitions, to the extent they seek awards from the
`IRPA pool, are hereby granted and denied to the extent of the Court’s specific awards
`pursuant to Exhibit 1 to the special master’s R&R, as set forth herein.
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`Case 2:14-md-02591-JWL-JPO Document 4603 Filed 06/04/21 Page 2 of 10
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`I.
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`Background
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`By Memorandum and Order of December 7, 2018, the Court granted final approval
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`of a settlement agreement resolving claims against the Syngenta defendants, and it awarded
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`one third of the settlement fund as attorney fees. See In re Syngenta AG MIR 162 Corn
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`Litig., 2018 WL 6436074 (D. Kan. Dec. 7, 2018). By Memorandum and Order of
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`December 31, 2018, the Court allocated the attorney fee award among four pools: three
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`common-benefit pools and a pool for individually-retained private attorneys (IRPAs). See
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`In re Syngenta AG MIR 162 Corn Litig., 2018 WL 6839380 (D. Kan. Dec. 31, 2018). The
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`Court allocated $60,400,000.00, constituting 12 percent of the total fee award, to the IRPA
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`pool, which portion would be shared by IRPAs pro rata based on the ultimate recoveries
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`by their claimant clients. See id. at *6-11. The Court concluded that such an amount,
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`which was intended to result in a contingent fee for IRPAs of approximately 10 percent,
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`was reasonable and appropriate in this case “for IRPAs who did not perform work (in
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`addition to filing a case) that benefitted the entire settlement class” (such work benefitting
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`the class would be compensated from the common-benefit pools). See id. at *6-10. In
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`light of that conclusion concerning the reasonableness of this fee award, the Court further
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`ruled that IRPAs could not recover additional fees from any client’s recovery based on a
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`contingent-fee contract. See id. at *10.
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`After determining the amount allocated to the IRPA pool, the Court reopened the
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`application period and set a new deadline to allow IRPAs who had not yet filed an
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`application for attorney fees to seek an award from the IRPA pool, as long as the applicant
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`represented a settlement class claimant prior to the Court’s preliminary approval of the
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`Case 2:14-md-02591-JWL-JPO Document 4603 Filed 06/04/21 Page 3 of 10
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`settlement. See id. The Court required any such application to include a list of all claimants
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`represented by that attorney. See id. at *11. The Court ruled that specific awards from the
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`IRPA pool would be “administered by this Court, in consultation with the Minnesota state
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`court and the Illinois federal court, regardless of where an IRPA’s cases were filed,” which
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`arrangement would allow for a consistent distribution of the fee awards from the IRPA
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`pool. See id. The Court then adopted the following procedure for specific awards from
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`the IRPA pool:
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`Once the amount of each claimant’s recovery from the settlement fund has
`been determined, the claims administrator, with oversight by the special
`master, shall calculate the pro rata IRPA award to be made from the IRPA
`pool to each attorney who has applied for a fee award, and the amount of an
`attorney’s proposed IRPA fee award shall be communicated to that attorney,
`who shall have the opportunity to object to the calculation by the
`administrator. After the administrator has attempted to resolve any
`objection, the master shall file a report and recommendation concerning the
`proposed distribution of the IRPA pool to particular attorneys or law firms,
`in which the master shall note any outstanding objections and her
`recommendations concerning those objections. Objections to that report and
`recommendation may be filed within 14 days, and the Court will then resolve
`any such renewed objections.
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`See id. Finally, by separate Order of January 4, 2019, the Court required each applicant
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`for an award from the IRPA pool to submit certain information, including a signed retainer
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`agreement or power of attorney, to the claims administrator in a particular form.
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`By separate orders, the Court subsequently awarded fees from the three common
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`benefit pools and expenses to particular law firms. See In re Syngenta AG MIR 162 Corn
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`Litig., 2019 WL 1274813 (D. Kan. Mar. 20, 2019) (Kansas pool); In re Syngenta AG MIR
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`162 Corn Litig., 2019 WL 3202256 (D. Kan. July 16, 2019) (Minnesota pool); In re
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`Syngenta AG MIR 162 Corn Litig., 2019 WL 6134520 (D. Kan. Nov. 19, 2019) (Illinois
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`pool); In re Syngenta AG MIR 162 Corn Litig., 2020 WL 7344684 (D. Kan. Dec. 14, 2020)
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`(indicative ruling that Court would modify common-benefit awards to effect a settlement
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`on appeal); In re Syngenta AG MIR 162 Corn Litig., 2019 WL 3251526 (D. Kan. July 19,
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`2019) (expenses). The distribution of the settlement fund to claimants is nearly complete,
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`and all appeals concerning the approval of the settlement have been resolved (with only
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`appeals concerning fee and expense awards remaining pending).
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`II. The Special Master’s Report and Recommendation
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`In its allocation order, the Court extended the appointment of Ellen Reisman as
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`special master to oversee the distribution of attorney fees as allocated by the Court. See In
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`re Syngenta, 2018 WL 6839380, at *15. On May 14, 2021, the master filed her R&R
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`concerning the awards of fees to specific attorney applicants from the IRPA pool, as
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`requested by the Court. A summary of the R&R follows.
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`IRPAs made a total of 114,060 submissions. By each submission, a particular IRPA
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`sought to recover a pro rata portion of the IRPA pool based on a particular settlement claim
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`by a client claimant. The administrator first attempted to link each submission to a
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`particular claim, by claimant identification number or by other means. The administrator
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`then reviewed the supporting documentation for each submission. After sampling the
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`submissions to test the accuracy of the administrator’s coding of submitted documents, the
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`master deemed accepted any submission supported by a legible retainer agreement or
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`power of attorney that was signed by or on behalf of a claimant, dated on or before the date
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`of the preliminary approval, and for which there was no competing submission. If there
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`were competing submissions linked to a single settlement claim, the master opted against
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`splitting the award, as such a process would have been complicated and time-consuming,
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`requiring additional information. Instead, in the case of competing submissions, the master
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`made the award pursuant to the following principles: if no submission satisfied the
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`requirements for an award, all were rejected; if only one submission satisfied the
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`requirements, that submission was deemed accepted; and if multiple submission satisfied
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`all requirements, the master accepted the submission of the IRPA designated as counsel by
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`the claimant in the online claims portal, or in the absence of such a designation, accepted
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`the submission with the earliest signed retainer agreement or power of attorney.
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`On February 18, 2021, applicant IRPAs received notice of the special master’s
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`preliminary determinations,
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`including which submissions were accepted, which
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`submissions were rejected (with the basis for the rejection), the estimated IRPA award for
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`each accepted submission, and the procedure and deadline for appealing the initial
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`determination to the master. The master received and resolved approximately 2,800 timely
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`appeals. The master permitted the submission of additional supporting documents other
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`than new retainer agreements and powers of attorney, which were not accepted because the
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`IRPA submission deadline had already passed. Submissions were deemed accepted on
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`appeal if additional documents satisfied the requirements for an award, including evidence
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`linking a submission to a particular settlement claim and evidence establishing when an
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`undated retainer agreement or power of attorney had been executed. In accordance with
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`the Court’s order allocating funds to the IRPA pool for IRPAs retained prior to preliminary
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`settlement approval, the master rejected on appeal the argument that submissions based on
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`a later agreement should be accepted if work had been performed for the client prior to that
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`date. In the case of an agreement or power of attorney that was unsigned or signed by
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`someone other than the claimant, the appeal was denied unless evidence showed that the
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`document had been signed by an authorized representative of the claimant. In the case of
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`competing submissions, the master rejected the argument on appeal that a “wet ink”
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`signature should prevail over an electronic signature on a claim form that designated a
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`particular attorney.
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`Having completed the appeal process, the master now recommends acceptance of
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`108,307 submissions, based on settlement claims totaling $607,981,931.21. Those awards
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`would thus result in an effective fee for each IRPA of approximately 9.93 percent of the
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`amounts recovered by the attorney’s clients (not including fee awards from the common-
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`benefit pools). Although the settlement claim amounts could still change for a few
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`remaining claims, any such change would result in only a negligible change to the IRPA
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`awards, and the master therefore recommends against any further delay in the awards,
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`which would be paid only after each associated settlement claim was finalized and paid.
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`The master recommends rejection of 4,587 submissions for which there was no appeal to
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`the master. The master also recommends rejection of 1,166 submissions that were the
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`subject of an unsuccessful appeal to the master. Finally, the master recommends that the
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`Court adopt a particular procedure for distribution of the awards from the IRPA pool,
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`including the submission by attorneys of payment instructions, consents to such
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`instructions by co-applicants, and W-9 forms.
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`III. Analysis
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`In its allocation order, the Court explained the special master’s authority and the
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`Court’s standard of review – which apply here as well – as follows:
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`The Court referred to the special master the issues addressed in the
`R&R pursuant to Rule 23, which allows for such a referral as provided in
`Rule 54, which in turn directs the Court to Rule 53. See Fed. R. Civ. P.
`23(h)(4), 54(d)(2)(D). Rule 53 sets the Court’s standard of review: in the
`absence of a stipulation by the parties, the Court reviews de novo all
`objections to the special master’s factual findings and legal conclusions.
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`See In re Syngenta, 2018 WL 6839380, at *3. In accordance with the procedure for specific
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`awards from the IRPA pool set forth in the allocation order, see id. at *11, the Court has
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`consulted with the Honorable Nancy J. Rosenstengel of the United States District Court for
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`the Southern District of Illinois and the Honorable Laurie Miller of the District Court of
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`Hennepin County, Minnesota. Those judges have approved the rulings contained herein
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`concerning the specific awards of attorney fees from the IRPA pool.
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`After having conducted a de novo review, the Court adopts the special master’s
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`Report and Recommendation in its entirety. It therefore overrules the objections filed by
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`Toups and Shields, and it awards attorney fees from the IRPA pool in accordance with the
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`R&R and its exhibits.
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`The special master was assigned a monumental task, and the Court is convinced that
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`she performed to the highest standard. The R&R demonstrates that the special master and
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`claims administrator conducted a thorough and thoughtful review of more than 100,000
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`submissions by IRPA applicants, and the Court did not receive a single objection relating
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`to the matters addressed in the R&R. The principles that the master applied in deciding
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`whether to recommend awards for particular submissions were sound and appropriate and
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`consistent with the Court’s prior orders. The Court therefore agrees with and applies those
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`same principles, including the principles regarding the consideration of additional evidence
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`other than new retainer agreements and powers of attorney; the requirement of a signed
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`retainer agreement or power of attorney; the resolution of cases involving competing
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`submissions (without splitting the award); and the reliance on electronic signatures on
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`settlement claim forms. The Court agrees that the submissions recommended for
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`acceptance should be accepted, and that the submissions recommended for rejection should
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`be rejected for the reasons identified by the master.
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`The objection filed by Toups does not take issue with any particular
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`recommendation contained in the R&R. Indeed, Toups states expressly in its briefs that it
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`does not object to the “mathematics” underlying the master’s recommendation for IRPA
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`awards and does not appeal its client fee contracts “disallowed” by the master. In its filing,
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`Toups only reiterates its prior objection to the multi-pool allocation method adopted by the
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`Court in its prior allocation order – as argued by Toups in its prior briefs to this Court and
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`to the Tenth Circuit, which Toups incorporates by reference – based on Toups’s argument
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`that the method has resulted in a total fee award to Toups that is unfair. The Court has
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`previously rejected that argument by Toups, and the issue is now before the appellate court.
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`Toups has not identified any basis for reconsideration of the Court’s prior orders, and it
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`appears that Toups has raised the issue again only to make sure that the issue is preserved
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`for appeal. Only the special master’s R&R is presently before the Court, and Toups has
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`not objected to anything in the R&R; accordingly, the Court overrules the objection.
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`Toups did attach to its filing some exemplars of its contingent fee contracts with
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`clients and a list of its client claimants who executed such contracts. Toups notes that such
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`contracts were required in the IRPA fee submissions to the administrator, but they were
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`not included with the R&R filed by the master. In their response to this objection,
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`settlement class counsel argues that the Court should strike those exhibits because they do
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`not relate to any objection addressed to the R&R. The Court denies this request, however.
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`Although the Court need not consider those exhibits in reviewing the R&R, class counsel
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`have not identified any authority supporting the striking of the exhibits. It is for the Tenth
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`Circuit to decide which documents it will consider in deciding any appeal.
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`Similarly, Shields conceded that “much” of its present objection has been ruled
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`previously and that it raises the issues (including by incorporating its prior briefs) to
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`preserve them for appeal. First, Shields notes the Court’s prior denial of the Shields firm’s
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`request to supplement its IRPA submissions to seek awards based on 96 additional
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`settlement claims by clients. See Memorandum and Order of Sept. 23, 2020 (Doc. # 4455).
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`Shields refers to its prior arguments and additionally argues that these submissions could
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`be easily added. Shields has not identified any proper basis, however, for the Court’s
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`reconsideration of its prior conclusions that the Court’s deadlines and requirements for
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`IRPA fee submissions were clear and that the firm’s supplementation request came far too
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`late; and the Court declines to reconsider that prior discretionary ruling at this time.
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`Shields also repeats its prior arguments that the Court’s allocation method and
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`allocation to the IRPA pool does not provide it with a sufficient fee. Like Toups’s
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`objection, this objection does not address the particular matters contained in the R&R, and
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`Shields has not identified a proper basis for the Court’s reconsideration of its prior orders
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`at this time. Shields’s objection is therefore overruled.
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`Accordingly, the Court adopts the R&R in its entirety, and specifically adopts the
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`recommendations contained in the “Conclusion” section of the R&R. The Court thus (1)
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`awards fees from the IRPA pool as set forth in Exhibit 1 to the R&R; (2) rejects other IRPA
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`award petitions and overrules all objections to the recommended awards, including
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`objections made to this Court and those made only to the special master on appeal from the
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`master’s initial determinations; and (3) requires each IRPA award recipient to undertake
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`the procedural steps and make the submissions set forth in the R&R as a precondition to
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`payment of the award.
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`IT IS THEREFORE ORDERED BY THE COURT THAT the Report and
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`Recommendation of the special master (Doc. # 4596) is hereby adopted in its entirety;
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`objections to the Report and Recommendation (Doc. ## 4598, 4599) are hereby overruled;
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`and attorney fees are hereby awarded as set forth in the Report and Recommendation.
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`IT IS SO ORDERED.
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`Dated this 4th day of June, 2021, in Kansas City, Kansas.
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`s/ John W. Lungstrum
`John W. Lungstrum
`United States District Judge
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