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In re Syngenta AG MIR162 Corn Litigation

United States District Court, D. Kansas

April 2, 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 MDL No. 2591

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         This multi-district litigation (MDL) comes before the Court on the motion by certain plaintiffs' counsel for a determination that all final fee allocations will ultimately emanate from this Court (Doc. # 4108).[1] Responses to the motion were filed by the Toups/Coffman plaintiffs' counsel group (“Toups”) (Doc. # 4110), Shields Law Group, LLC (“Shields”) (Doc. # 4123), and Heninger Garrison Davis, LLC (“HGD”) (Doc. # 4125). As more fully set forth below, the Court grants the motion in part.[2]

         I. Background

         By Memorandum and Order of December 7, 2018, the Court granted final approval of a settlement agreement resolving claims against Syngenta[3] 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 awarded total attorney fees in the amount of one third of the settlement fund. See Id. at *11-16. The Court also issued a Final Order and Judgment on that date (Doc. # 3850).

         By Memorandum and Order of December 31, 2018, the Court 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 allocated the total fee award among four pools: a Kansas MDL common benefit pool; a Minnesota state court common benefit pool; an Illinois federal court common benefit pool; and a pool for individually-retained private attorneys (IRPAs). See Id. 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 for the initial allocation of fees, the allocation among the pools, and all other rulings contained in that Memorandum and Order. See Id. at *1.

         The Court designated Kansas MDL co-lead counsel to recommend the further allocation of the Kansas common benefit pool among the attorneys assigned to that pool. By Memorandum and Order of March 20, 2019, the Court overruled objections and adopted the recommended allocations for that pool. See In re Syngenta AG MIR 162 Corn Litig., 2019 WL 1274813 (D. Kan. Mar. 20, 2019) (Lungstrum, J.). The Minnesota and Illinois courts have not yet ruled on reports and recommendations submitted to them concerning the allocation of the Minnesota and Illinois common benefit pools. This Court also awaits reports and recommendations from the special master concerning allocation of the IRPA pool and awards of expenses.

         II. Analysis

         A. Whether This Court Should Issue Final Allocation Orders

         Movants seek an order clarifying, in essence, how any appeals from the three courts' fee award allocations will be taken. Specifically, Movants request that the Court order that the allocation orders by the Minnesota and Illinois courts be filed here for inclusion in a final judgment by this Court, from which judgment all appeals could be taken. Movants argue that the settlement agreement requires that the final allocations come from this Court and that such a procedure would allow for all appeals to be heard by the Tenth Circuit, thereby avoiding piecemeal appeals and potentially conflicting results.

         At first blush, that approach would seem to run counter to the previous understanding of the three courts and counsel. The initial allocation order stated as follows:

No objection has been lodged to the master's recommendation that the Kansas MDL court, the Minnesota state court, and the Illinois federal court be responsible for the allocation to attorneys in the next phase from the Kansas, Minnesota, and Illinois common benefit pools respectively. That approach reasonably comports with the settlement agreement and the understanding of counsel. Moreover, each court is most familiar with the litigation in the cases before it, and thus is in the best position to determine a reasonable allocation from its particular pool to the applicants assigned to that pool. Each court will enter an order establishing a process by which to accomplish its assigned allocation.

See In re Syngenta, 2018 WL 6839380, at *15. Although the order states that the Minnesota and Illinois courts will be responsible for the allocation to attorneys from their common benefit pools, it does not state that those courts will enter judgments from which appeals could be taken or that the eventual awards to attorneys would not come from this Court.

         The Court agrees with Movants that the settlement agreement requires that final allocation awards be issued by this Court. The agreement provides that any Fee and Expense Award (defined to mean an order by this Court granting in whole or in part fee and expense applications) shall be issued by this Court (in consultation with and approved by the other two courts), and that this Court retains exclusive jurisdiction over a Fee and Expense Award. The only exceptions are for matters or disputes arising from client fee contracts and referring counsel referral agreements involving either Minnesota litigants or the Clark firm, which matters are subject to the jurisdiction of the Minnesota and Illinois courts respectively; those exceptions do not apply here, however, as the attorney fee awards arise from the settlement fund and not from any client fee contracts (which, under the initial allocation order, may not provide the basis for any fees). Specific fee applications by attorneys assigned to the Minnesota and Illinois common benefit pools cannot be granted until the allocations of those pools has been completed, and under the settlement agreement, the orders granting those applications (Fee and Expenses Awards) must be issued by this Court. Moreover, the settlement agreement gives this Court exclusive jurisdiction over the settlement fund, and thus any disbursements from that fund for attorney fees must be authorized ultimately by this Court. The Court's Final Order and Judgment of December 7, 2018, confirms that this Court has exclusive jurisdiction over the settlement fund and the allocation and distribution of attorney fees (with the exception of certain matters arising from client fee contracts and referring counsel referral agreements). Finally, no attorney has objected to this aspect of the instant motion, and thus all potentially-affected attorneys have consented to a procedure by which the ultimate allocation orders (from which appeals may be taken) will be issued by this Court.

         Accordingly, the Court grants the instant motion to this extent. At the conclusion of the allocation procedures in Minnesota and Illinois, Movants shall ensure that allocation rulings by the Minnesota and Illinois courts are filed in this Court (as an attachment to a notice). The Court shall subsequently ...


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