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In re Syngenta AG MIR 162 Corn Litigation

United States District Court, D. Kansas

March 20, 2019

IN RE SYNGENTA AG MIR 162 CORN LITIGATION,
v.
Syngenta AG, et al., No. 16-2788 This Document Relates to All Cases Except: Louis Dreyfus Co. Grains Merchandising LLC Trans Coastal Supply Co., Inc.
v.
Syngenta AG, et al., No. 14-2637 The Delong Co., Inc.
v.
Syngenta AG, et al., No. 17-2614 Agribase Int'l Inc.
v.
Syngenta AG, et al., No. 15-2279

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge

         This multi-district litigation (MDL) comes before the Court upon the Report and Recommendation (R&R) by Kansas MDL Co-Lead Counsel (“CLC”) concerning the allocation of the Kansas portion of the Court's total attorney fee award (Doc. # 4079).[1]The Court received responses from two groups of plaintiff attorneys objecting to the recommended allocation: Mitchell Toups, Richard Coffman, and their associated counsel (“Toups”) (Doc. # 4098); and Hossley Embrey, LLP and their associated counsel (“Hossley”) (Doc. # 4099). The Court concludes that the CLC's recommended allocation among the attorneys assigned to this attorney fee pool is fair and reasonable and appropriate, and the Court therefore awards attorney fees from the Kansas MDL common benefit pool to particular attorneys as set forth in Schedule 2 of the R&R, which has been incorporated into this Order as Attachment A. Accordingly, the Court overrules the objections asserted by Toups and Hossley.

         I. Background

         By Memorandum and Order of December 7, 2018, the Court granted final approval of a settlement agreement resolving claims against Syngenta[2] and certified a settlement class. See In re Syngenta AG MIR 162 Corn Litig., 2018 WL 6436074 (D. Kan. Dec. 7, 2018) (Lungstrum, J.). At that time, the Court also awarded total attorney fees in the amount of one third of the settlement fund, or $503, 333, 333.33, see Id. at *11-16, which fees compensated for work for the benefit for the settlement class and which also were “intended to account for all contingent fee recoveries from payments to class members from the settlement fund, ” see Id. at *11, 15.

         By Memorandum and Order of December 31, 2018, the Court ruled on objections and adopted in large part a report and recommendation by the special master concerning the initial allocation of attorney fees. See In re Syngenta AG MIR 162 Corn Litig., 2018 WL 6839380 (D. Kan. Dec. 31, 2018) (Lungstrum, J.). The Court used a framework for allocating the total fee award to all attorneys whose efforts contributed to the settlement class's ultimate recovery, recommended by the special master, as follows:

All attorneys who have filed fee applications are assigned to one of three common benefit pools - Kansas MDL, Minnesota state court, and Illinois federal court - based primarily on where they performed their common benefit work. Specified percentages of the total fee award are then allocated to those three pools, reflecting the relative contributions to the settlement class recovery by the attorneys in those pools (with further allocation within those three pools to be made in a subsequent procedure by the three courts separately).

See Id. at *2. The Court also allocated a portion of the total fee award to a pool for individually-retained private attorneys (IRPAs), who would share that portion pro rata based on the ultimate recoveries by their claimant clients. See Id. The Court adopted the master's recommendations concerning which attorneys were assigned to which common-benefit pools, see Id. at *12, and it proceeded to allocate the total fee award among the four pools as follows: $246, 633, 333.33 (49 percent) to the Kansas MDL common benefit pool; $118, 283, 333.33 (23.5 percent) to the Minnesota state court common benefit pool; $78, 016, 666.67 (15.5 percent to the Illinois federal court common benefit pool; and $60, 400, 000.00 (12 percent) to the IRPA pool. See Id. at *13. Finally, the Court adopted the master's recommendation that each of the three courts be responsible for the further allocation among attorneys of the portion of the fee award allocated to its common benefit pool (with this Court, in consultation with the other courts, responsible for the administration of awards from the IRPA pool). See Id. at *11, 15. The Court consulted with the judges overseeing the related litigation in Minnesota and Illinois, and all three judges expressly approved of this framework and initial allocation of fees and all other rulings contained in the Memorandum and Order. See Id. at *1.

         Finally, the three judges agreed that the three common benefit pools would be allocated among particular attorneys based on any work that benefitted the settlement class, whether or not such work was performed pursuant to any common benefit order issued by a court. See Id. at *14. The judges agreed on certain guidelines concerning the final allocation of fees from the common benefit pools, as follows:

[A]lthough allocation from the three common benefit pools will take place in the next phase, the Court deems it appropriate to make a few remarks concerning how the three courts will consider certain types of work in making that allocation, with the intent that such considerations be consistent across the three pools. First, the courts will consider as common benefit work any work, either in litigating the claims or in pursuing the settlement with Syngenta, that contributed to the settlement and the ultimate recovery by the settlement class, thereby benefitting the entire settlement class. Second, as mentioned above, the courts do not consider work performed in recruiting clients to have inured to the common benefit of the settlement class. Third, work performed for particular individual clients may still be considered common benefit work if that work provided a benefit to the entire settlement class. For instance, many objectors have argued that work to complete and submit plaintiff fact sheets (PFSs) pursuant to court orders should be considered common benefit work for purposes of allocation from the common benefit pools. The courts agree that work completing a significant number of PFSs that were actually submitted to courts or Syngenta could benefit the entire settlement class. In considering such work (and other work), however, the courts will be mindful that the work would not reasonably have been undertaken at the highest attorney rate, for instance because much of the work could reasonably have been completed by lesser-experienced attorneys or even by paralegals or other staff. The same would be true, for example, for work drafting identical complaints (after drafting the first one) for multiple plaintiffs, or work submitting claims (in light of the ease of doing so). In short, although much work may qualify as common benefit work if sufficiently impactful or if on behalf of a large number of plaintiffs, not all common benefit work will be weighed equally in the allocation from the common benefit pools.

See id.

         Also by Order of December 31, 2018 (Doc. # 3883), the Court designated CLC to recommend the further allocation of the Kansas MDL common benefit pool among the attorneys assigned to that pool. The Court stated that CLC, in making that determination, should comply with the strictures and principles set forth in the allocation order concerning common benefit work, and should discuss their proposed division with the attorneys in the pool and attempt to resolve any disputes. On February 1, 2019, as ordered by the Court, CLC filed the instant R&R by which they have recommended particular fee awards from the Kansas pool to particular law firms and attorney groups.

         II. CLC's Recommended Allocation

         CLC undertook the further allocation of the Kansas common benefit pool amount ($246, 633, 333.33) among the 64 firms and attorney groups assigned to that pool (listed on Schedule 1 of the R&R).[3] Five of those firms made only expense fund contributions and do not seek recovery of attorney fees from the Kansas pool. CLC recommends allocation among the other 59 firms as set forth in Schedule 2 of the R&R.

         In making its recommendation, CLC has divided the firms into six tiers. Tier 1 consists of the four MDL Co-Lead firms and the Seeger Weiss firm. CLC proposes applying a multiplier of 3.14 to the lodestar for the four firms' work performed prior to their initial attorney fee petition, and a multiplier of 0.9 for work performed since the initial petition, which yields overall multipliers ranging from 2.97 to 3.09. CLC also proposes allocating ten percent of the Kansas pool amount to Seeger Weiss, in accordance with a fee-sharing agreement, based on that firm's work as settlement counsel; that allocation would result in a multiplier of 3.125 for that firm. In total, CLC recommends that $214, 895, 659.86 be allocated to the firms in Tier 1 (112, 377.1 hours, $70, 772, 240.10 lodestar).

         Tier 2 consists of six firms, all involved since the beginning of the litigation, whose work focused on litigation of the class and bellwether cases. Some of these firms also participated in legal briefing, expert discovery, and the Kansas trial, although to a lesser extent than the Tier 1 firms. CLC thus proposes that these firms receive the second-highest multipliers among the tiers, ranging from 2.0 to 2.5, depending on those firms' particular contributions. The proposed allocations within this tier ...


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